BREXIT : WILL OF THE PEOPLE ? - OR NATIONAL INTEREST ?

As we near a momentous series of votes in the UK Parliament starting on March 12 on whether or not to approve Prime Minister May’s deal with the EU (whatever it may be – the status is still unclear as of this writing on Monday morning, March 11), the hard core Brexiters of the Tory right, with other pro-Brexit supporters, are launching a furious attack on any possible extension of Brexit beyond March 29, two years from the filing of Theresa May’s Article 50 letter, which triggered, with little preparation, the withdrawal process from the European Union, largely based on the dangers of flouting the ‘will of the people’ in the 2016 ballot exercise.

As it stands today, there is almost no hope of Parliament approving May’s gamble of returning again and again to Parliament to approve the deal, as she has (so far ) failed to secure any legally binding changes to the Irish back stop, which requires the UK to remain in the EU customs union to secure the absence of friction between Northern Ireland and the Republic of Ireland as set out in the so-called 1998 Good Friday Irish settlement agreement, absent EU consent or a new trade deal – a form of ‘legal vassalage’ in the eyes of the right, including the European Research Group (ERG) Tory faction in Parliament, which would appear to be very happy to sink the United Kingdom ship in a disaster of its own making on the sake of (their) principles.

The key principle hitting the headlines and airwaves from pro-Brexit spokesmen is the stern warning that there will be ‘political chaos’ and collapse in belief in any system of government in the UK if the ‘will of the people’ is not respected, referencing frequently quoted statistics about the Brexit vote in 2016 being the ‘largest democratic exercise ever’ in the UK and ‘ a majority’ of the ‘people’ having firmly rejected staying in the European Union. 

The facts however are quite different, even when regarded from the time frame of the referendum itself. On closer examination, the ‘will of the people’ turns out to be a clever, but not very accurate, rhetorical device, full of sound and fury, as Shakespeare used to say, but not signifying a heck of a lot other than raw emotions, when you put it under an objective microscope 

If the 2016 referendum represents the will of the people, then you have to ask what people, for what purpose and at what point in time.

What People ?

As a math exercise, referendums are funny things and not that simple. When claiming a result is the will of the people you have to look at the purpose and the fundamental question of whether a bare majority of the voters who turned up on a polling day represents the will of the people, or a view of some people at a moment in time, as opposed to identifying the larger question of a national consensus.

By way of comparison, although referendums, or plebiscites, are widely used for direct legislative changes, from local laws to rubber stamping the decisions of dictators, for constitutional level changes, as in many democratic countries, a more careful terms of reference could have considered, for example, a 2/3 voting majority requirement to overturn 40 years of legal, political and economic relations with the EU, or a ‘triple lock’ of 3 of the 4 nations of the United Kingdom (England, Wales, Northern Ireland and Scotland), providing support for identifying a truly national will, or at least an assured level of consensus, confirmed by a high bar, to make such a radical change in the UK's direction.

The fundamental errors in the original terms of reference (further highlighted below) are highly relevant if there were ever to be a second referendum to determine the 'new will' of the people, or a national consensus based on a higher, constitutional-level minimum threshhold.

The Brexit referendum instead went for a bare majority of actual voters showing up at the polls, regardless of location or voting spread, which meant a small majority in northeast England tipped the balance, overriding the will of two of the 4 nations opposing Brexit (Northern Ireland and Scotland) as to the electorate of that day. 

On that score, the vote cannot be said to have represented the will of the country as a whole to any degree or even most of it. 

What was even more anomalous was the same Parliament, which set the terms of the (failed but equally contentious and constitutional) 2014 Scottish independence referendum which enabled with some exceptions, EU citizens and other Commonwealth (non UK) citizens resident in Scotland to vote from the age of 16 , did not allow 16 and 17 year olds or EU citizens resident in the UK (of which there are now approximately 3.5 million) to vote in he Brexit referendum, even those with permanent residency, which would also have tipped the balance heavily in favor of Remain.

There was also an unsettling economic divide, with poorer and less educated voters supporting Leave by far larger majorities than more educated and more prosperous voters who supported Remain, not indicating any lack of understanding of the issues by any segment (such as they were presented) but pointing to a class and pocket-book divide which speaks volumes as to schisms in society and, again, hardly a consensus.

More importantly, the numbers do not add up even with the democratic deficit of all EU residents being excluded set aside.

At the time of the referendum there were about 46,5 million voters on the roles, 33,6 million of whom showed up, of which only 17,4 million voted to leave, about 37,4 % of the registered electorate, not the majority - only the bare majority of those turning up to vote (51.89%), an incontrovertible minority despite the oft quoted fiction of the largest democratic exercise in the nation’s history, which may be true as a statement of a poll turnout (about 74%), but not a result of the majority of actual eligible voters.

Which brings us to the final and most damning failure of the vote : the disenfranchisement of an estimated 1.5 million of 5 million expat British citizens who were excluded from the vote as they lived outside the United Kingdom for more than 15 years, citizens who have as vested an interest in the country as do their children and grandchildren (who also couldn’t vote even if of voting age).

This legislative stripping of their voting rights, which deprived UK citizens abroad and particularly those in Europe of life changing rights (now being threatened, having been earned as EU citizens living outside their home country) was something the ruling Tory Party committed to reverse since its Tory Election Manifesto of 2015 but took no serious action on since, including before the 2016 referendum, to actually implement the re-enfranchisement, a direct dereliction of democratic duty.

If such a re-enfranchisement had taken place before the 2016 referendum, or today (when a bill is pending in Parliament to do so), even on the basis of the trends in the 2016 election, Brexit support it is estimated would have been or be reduced to between 45% and 47 % at most, again not a basis on which you can argue a consensus or 'will' on either side.

Considering the 1.5 million expats and the interests of EU citizens permanently residing in the UK, certainly the vote didn’t represent their will, nor does it as they have had no opportunity to express it.

For What ?

As to the issue of what was ‘willed’, you then have to look at what the referendum was on and not, in this case being on the general question of whether the UK should leave the EU – not on what terms and not when it should leave. This was a fixed question only at a fixed point in time almost three years ago.

Certainly, the referendum was not legally binding but did result from a firm pledge of the Cameron government in the 2015 election, after the UKIP party began gaining serious traction in the local elections, to hold a decisive in-out referendum (in hopes of finishing off the Brexit uprising).  

When the Conservative Government (which supported Remain) lost the election, and Prime Minister May came into power, after a series of court challenges, Parliament ratified the authority of the PM to withdraw from the European Union by more than 400 votes, in effect turning an advisory opinion into a binding commitment to honor the results of the referendum, eliminating the argument that the referendum was not a reflection at least of the votes of a duly constituted Parliament (which after all is how the country is supposed to be governed).

That may have eliminated an argument that a Brexit was not approved by the majority of the people’s democratically elected representatives (it was), but it still did not address the issue of when an Article 50 divorce letter should be filed, and what the ‘will represented’, a critical question which lingers this day and importantly so - as there is now no majority in Parliament for any solution other than an about face against a hard Brexit, which was never the subject of the referendum or of any debate as a choice

What the Leave Campaign had promised (including pro Brexit ministers in the current government ) instead included the ‘fastest’ trade deal with the EU one could imagine, hundreds of millions of extra cash for the NHS, and unfettered success in negotiating new trade deals and a booming economy as a result.

However, none of these things have materialized, rather the opposite – the specter of a hard Brexit with no real preparation, causing chaos on both sides of UK – EU divide and threatening real economic harm to UK businesses, trade, and individual rights on a massive scale (at least compared to what UK citizens enjoy now across the whole of the EU) which could last for a decade, at least in the worst case scenario, and one can safely say Parliamentary current reluctance to ‘crash out’ reflects the overwhelming sense that no, the ‘people’ (or at least a vast majority) don’t seem to want that either.

Indeed , this was confirmed just this morning by ardent Pro-Brexit Environment Minister Michael Gove, who declared that he himself had never campaigned for nor had contemplated a no deal Brexit, nor one therefore presumes, could support it.

When ?

Finally we have the existential question as former Conservative Prime Minister John Major recently pointed out of what constitutes the people’s will over time – and when it is most relevant (you can read his thoughtful speech here : https://www.johnmajorarchive.org.uk/2015-2/sir-john-majors-speech-to-the-john-smith-centre-for-public-service-19-february-2019/).

On that the facts are also rather simple : since the referendum about 2 million older votes have passed on and 2 million younger people have joined or are eligible for the roles, who the polls indicate, would largely back Remain in a second referendum, and even if at 60 % in favor , more than enough to tip the balance if a new referendum to test the will of the people now was held, not even counting the potentially re-enfranchised millions of British citizen expats or the interests of EU citizens resident in the UK.

That doesn’t mean taking a new updated test of public sentiment through a second referendum is a sensible idea right now, when British politics is perhaps at all all-time low point, at least in post-war times, in its incapacity, division and basic competence, creating a corrosive atmosphere of electoral cynicism which could rebound in a very divisive and ugly second vote if held soon, assuming the terms of reference, and who would be allowed to voted, could be agreed by Parliament.

Instead the situation suggests instead a desperate need for new leadership (of all parties and new parties) and a pause in the Brexit process of at least one year (an idea also supported by former Labor Prime Minister Gordon Brown) to obtain a real national consensus, a delay which the EU has hinted as open to offering if asked.

The UK could accomplish the same also by just cancelling Article 50 unilaterally if it wanted (and had the political courage to do so), which would not necessarily cancel the idea of Brexit, if handled properly, but would allow the country to heal and reassess and the return to Brexit if there was a real consensus with another Article 50 filing at some later point in time.

The National Interest

For those looking for a solution, the present sad reality also means the parties do need to consider, for all the above reasons, a different standard and not the ephemeral and very debatable will of the people circa. 2016 or now, when the will of the people cannot be readily determined, and when this confusion is exactly mirrored by the gridlock in Parliament which cannot figure out if it wants May’s deal (likely not), or a customs union, or a Norway type EFTA agreement which would provide some degree of autonomy but with way less influence than the UK has now has as an EU member state, much less a second vote which at the moment does not have the support of the majority in Parliament.

Instead there is a very basic metric for these options, which is much easier to discern – the national interest, including that of the UK's citizens, residents, businesses, and its old and the young, across all sectors of the economy, taking a dispassionate view not of momentary sentiments, which is the hallmark of a referendum, but the long view of what works for the United Kingdom and what does not for its future.

That should be and indeed is the only measure of a government’s duty to its citizens and residents. 

On this criteria there is room to compromise and find sensible solutions once you untether the weight of the ‘people’s will' argument (based on past promises in a different setting) from what is needed to protect the UK’s interests now, in this very destabilizing context, to the maximum extent.

In another era, a British Prime Minister , who was attacked on all sides by a nation in fear of foreign entanglements, came back from a trip abroad with a poorly advised agreement in hand, waving it in the air as he stepped from his plane, declaring in face of extreme turmoil that there was peace in our time (and freedom from foreign involvement).  

It wasn’t long until the will of the people, which gratefully supported this fleeting and insubstantial result at the time, saw that reality did not match the promises, and changed rapidly and overwhelmingly to the opposite viewpoint, which required immediate and urgent international engagement, when they saw the results of their enthusiasm crushed (literally) by the stark realities of what they had so loudly and enthusiastically supported, even with the best of intentions.

Whether any party can come up with a leader like Winston Churchill, (who was in his own way after the war pro-European and who replaced the (it must be said) May-like, dogged but inevitably inept Neville Chamberlain), to guide the United Kingdom out of this morass by taking at the long view and doing the right thing for the country as a whole, without worry or concern about previous polls, opinion or otherwise, however profoundly conducted and held in good faith, remains to be seen in the coming hours, days or weeks. 

Erik D. Lazar 

Mr. Lazar, a London-based international lawyer, is Director and Founder of Transatlantic Law International, a global business law firm, with affiliated firms in over 95 countries.