Estimated reading time: 5 minutes
In Jean Giraudoux’s play La guerre de Troie n’aura pas lieu, translated in English as Tiger at the Gates, one might recognize the affinities of the protagonists with the two sides of the campaign leading to the Brexit referendum. Acquiescence, bellicose rhetoric, false
optimism, and incongruous reasoning define the juxtaposition between Hector’s peace minded side and Paris’s belligerent camp. At times, the conversations occur at different levels, almost in the absence of a common frame of reference that is a prerequisite to a dialogue, with Helen’s inability to resist her impulses adding to the tragedy of the play.
What then can be said of Brexit so far? Whilst the full implications of the referendum cannot properly be assessed before the dust settles, it is not too early to offer some reflections on its immediate aftermath and repercussions. They are not intended to be partisan nor to inspire pessimism.
First, the departure of the UK is a great loss to the EU. Brexit shatters the irreversibility outlook implicit in the integration model of ‘ever closer Union’. The rejection of the integration project by one of the most economically and politically powerful Member States
cannot but be seen as a great setback. The UK has been very influential in shaping EU policy, leading the way in many areas of decision-making and, with its laisser faire orientation, often seen as providing a counterbalance to continental corporatist inclinations. It has also been, in terms of its compliance with EU law, one of the Union’s best citizens. Losing a key player is a disappointment and a political failure. This is not to say that the referendum outcome is to be blamed on the Union’s intransigence. The proposed settlement for the UK, reached in the European Council in March 2016, went a long way towards accommodating Britain’s requests. It recognized the exceptionalism of the UK; it imposed substantial limitations on the free movement of workers, coming agonizingly close to breaching the EU Treaties; and was a concession that few Member States could achieve. It is also highly doubtful that, had more extensive concessions been granted, the referendum outcome would have been different.
Secondly, the call for exit has given rise to an enormous amount of uncertainty and inefficiencies of a daunting scale. Managing Brexit has become, and will continue to be for a number of years, the main preoccupation of political leadership and the civil service in Britain, increasing exponentially the costs of public administration. The Institute for Government estimates that the annual cost of Whitehall restructuring to manage Brexit will be 65 million for each year that the Department for Exiting the EU and the Department for International Trade will operate. The costs are exacerbated by the lack of preparation both at policy and logistical levels.
There appears to be no specific alternative blueprint as to the trade policy of the UK and, prior to the referendum, the civil service had made no preparation in anticipation of a possible Brexit outcome. The EU will also be preoccupied with mastering a meaningful response whilst the cost of uncertainty, both economic and non-material, to individuals and businesses will be momentous.
Thirdly, the referendum outcome places the UK and the EU in a trajectory of conflict. Although Member States negotiate hard and pursue their own individual interests within the EU, they do so under the aegis of shared objectives and commitment to common institutions and processes. The decision to leave views the EU legal framework as an expression of EU hegemony and brings the UK and the Union in a competitive relationship both vis-à-vis each other and vis-à-vis third countries. A renaissance of sovereignism as a backlash to globalisation may be understandable but hides the fact that any inequalities in the allocation of benefits borne by free trade have been the result of distributional decisions taken principally at the national level.
Fourthly, irrespective of the motives or objectives of individual voters, it is difficult to avoid the conclusion that the no vote has empowered illiberal causes. The rejection of EU membership favours anti-immigration policies and fosters an ‘us’ and ‘them’ political culture. It has promoted nationalism and xenophobia building capital for political parties at home and abroad that favour a nationalist agenda. One may take the view that, on a cost benefit analysis, the empowerment of illiberal causes is a fair price to pay for deriving the sovereignty gain that results from Brexit. But denying its existence would appear to run counter to the evidence.
Finally, the referendum brought to the fore tensions between direct and indirect democracy. The outcome is widely perceived to be at odds with the views of the majority of the members of the Westminster Parliament. It thus leads to the paradox that a fundamental constitutional decision is taken despite the disagreement of the people’s elected representatives in a polity where parliamentary sovereignty is the defining constitutional principle. Yet, the triumph of direct democracy may well be temporary. The referendum question presented a multi-dimensional decision as a binary choice. Exit from the EU is only half of the story. The other half is the articulation of an alternative economic and social blueprint on which the referendum question was silent. Voters with widely diverse preferences coalesced around the no vote. Some view the EU as a threat to democracy. Others are critical of the EU’s perceived social orientation which they see as a threat to economic growth. Yet others accuse the EU of not allowing enough protectionism: free movement of workers is perceived as a threat to the domestic labour force and the EU was even blamed for not permitting the government to rescue the steel industry.
In short, the negative message of the referendum vote is clear but the positive one is not. Here, then, lies another paradox. Since the Brexit vote cannot be seen as endorsing any specific economic or political vision, it can only be interpreted as an empowerment to articulate such a vision but it is uncertain to whom the empowerment is given and under what processes any ensuing decisions are to be
taken. The referendum, in other words, has prompted delegation of power to political agents in a way that highly enhances their discretion and may end up increasing the powers of the executive vis-à-vis those of parliament. The Government has been keen to rule
out the possibility of another referendum. The truth is that the debate occurs in an uncomfortable constitutional vacuum. It would be as legitimate to hold a second referendum on whatever deal emerges as not to do so. Much as the referendum has been hailed as a triumph of direct democracy, governments rather than citizens might be the winners.
As Brexit unravels, lawyers may find themselves in more familiar, albeit disturbing, territory. No poet has ever interpreted nature as liberally as lawyers have interpreted reality, proclaims Hector in Giraudoux’s play. This is an elegant aphorism that many a lawyer would justly take issue with. But it serves to underscore Hector’s preceding statement: ‘the law is the most powerful school for the magination’;
and we will need a lot of it to make Brexit work.
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