The UK has been in a state of shock since the referendum results were announced, with a very narrow margin of popular support for leaving the European Union. The political landscape is in turmoil: the prime minister has resigned, political parties are being ripped apart and Scotland is threatening to call a second referendum on leaving the UK so that the Scots can remain in the EU. They might even join the Euro Club.
The relationship between Britain and Europe was difficult from the beginning. After they joined the Common Market in 1973, a referendum was held within two years on whether they should stay “in”. In 1975 a resounding majority voted “yes”. The next wobble came in 1984 when Margaret Thatcher insisted on an agricultural rebate. It equates to approximately 66% of the UK’s net contribution. An anecdote has been told that the French President, Francois Mitterrand, was so exasperated with her that he said to his foreign minister: “She has the lips of Marilyn Monroe and the eyes of Caligula. Give it to her!”
The campaign ahead of the current referendum has been fought in a very emotional manner. The German artist and photographer Wolfgang Tillmans, who is an enthusiastic Anglophile and backer of the EU with an office in London, designed 44 posters that could be downloaded from his website and printed for free or shared on the social media. In an interview with Der Spiegel, he made the point that the official campaign against the Brexit was being conducted in completely the wrong tone and with an unattractive visual design.
They did not dare to address the subject emotionally, because the EU as a whole is unpopular. No one had the courage to warmly embrace the EU. Instead, they used economic arguments. Their primary claim was that it was better to remain, but the politicians who ought to be behind the EU often don’t support it themselves. In competition with populists, the mainstream tried to score points by being rational – and ended up weaker. As Tillmans points out, the anti-authoritarian stance of the Brits is very strong, but sometimes they have a predilection for the irrational.
Yet, nobody really believed that the “Leaves” would actually win and many used the referendum as a protest against the failure of government policies. It is important to understand that Britain has seen a net immigration of 3-million people since 2004 after the East European countries joined the EU. Of the 2-million EU foreigners living in the UK, Polish people make up the largest contingent (800,000), followed by Germans (300,000). However, roughly 2-million UK citizens live and work on the continent and equal that out.
Initially the Polish immigrants were warmly welcomed. Five years ago, the British were still overjoyed that their heating systems and drains were finally working again, thanks to Polish plumbers. But there were also undesirable social and political developments that provoked enormous dissatisfaction. They included the transformation of the economy since the Thatcher era into a service and financial economy as well as the government’s withdrawal from housing construction in a period of rising population and cutting back on health services in the face of an ageing population. Unlike the Germans who tackled similar problems with the Agenda 2010 that was pushed through by Gerhard Schröder, British politicians all too readily blame their own political failures on Brussels.
After the shock of the referendum outcome set in, more than 4-million people have signed a petition calling for a rerun of the referendum. The petition was lodged with the British Parliament in May by a Brexit supporter, who called for a rule that if the remain or leave vote is less than 60% based on a turnout less than 75%, there should be another referendum. A petition needs 100,000 supporters before Parliament will consider it and on the voting day only 22 people had signed the petition.
David Cameron has taken the stance that there should not be a second referendum, but Parliament has the last say. A referendum result is merely advisory and not binding upon Parliament, and given the extremely narrow margin of popular support, it has been argued by a fair number of MPs that the referendum should be rerun.
It was especially young people, who still have their life before them, who voted to remain in the EU. More than 80% of the voters aged between 18 and 24 voted for the EU, but only 30% of them went to the polls. By comparison, the elderly massively voted for a leave, but it cannot be excluded that they were lured by promises that the current EU contributions will then flow into the national health system.
Thus far the British Parliament has been mum on a rerun of the referendum. However, there are good reasons from a constitutional law perspective to question the democratic legitimacy and the validity of the referendum on formal grounds. A strong case can be made that the parameters of the referendum and the ballot did not adequately provide for an informed choice about the consequences of a Brexit. It was not merely a choice between leave or remain.
A referendum on leaving the EU is comparable to a constitutional amendment and because the consequences are immense, the hurdle for leaving should have been higher than 50%. The very narrow margin of popular support for leave (1.2-million of 34-million voters) is an extremely narrow basis of support for such a monumental decision.
Many voters also used the ballot as a protest vote against policies of the government that they are unhappy with. This is something that could be done in an election, but should not be done in a referendum with constitutional character.
Voters were also blatantly misled by the promises of the Brexiteers that the EU contributions will in future flow into the national health system and created the impression that access to the single market after a Brexit will cost nothing. They claimed that £350-million flows to the EU weekly, whereas the weekly contribution is actually £110-million, but a lot of that money flows back into the UK in the form of subsidies or projects.
The “Brexit” campaigners also misled the voters that they could decide how public funds of the UK will be spent in future. The institution that decides on budget appropriation is the parliament. Nigel Farage and Brexiteers quickly back-pedalled on that after the referendum, but a substantial part of elderly voters certainly fell for this campaign, which might explain why such large numbers of the age group above 65 supported the leave campaign.
The strongest argument is that the ballot did not spell out the consequences of the choice for the “leave” vote with a clear preference required upon leaving for one of the four options, viz the Norwegian, Swiss, Canadian or WTO model. The ballot should have required all voters that ticked off the “leave” choice to select their preferred choice of trading with the EU after a Brexit.
Many voters were under the impression that the UK would not have to make any contributions to the EU for access to the single market if they chose the Norwegian or Swiss options, which is not the case. They will have to pay a contribution and that depends on the size of the UK’s population and probably also on the volume of trade. Currently the per capita contribution of the UK to the EU is actually very low compared to other EU countries. The UK pays €76 per capita, whereas the per capita contribution is double as high in Germany and even higher in the Netherlands and Sweden.
If the Norwegian model is preferred, voters should have been informed that Norwegians pay about the same for access to the single market as UK citizens pay now. Currently the 5,136-million Norwegians pay a €388-million contribution, which boils down to a per capita contribution of €75. It is doubtful, however, that the UK will get better conditions than Norway as a founding member of the EFTA-states. The point is therefore that the UK probably will have to pay at least the same amount in contributions to the EU, if not more, with a Brexit, but in future will have no say in how that money is spent, will not get any of its money back and will also not have any influence on making European law. With this choice they do not really score anything.
The blocking of immigration from other EU citizens with a Brexit was a key aspect of the campaign of the Brexiteers. The question is therefore whether Eastern European immigrants could be kept out if Britain opts for the Norwegian or Swiss model or what alternatives there are if this is really so important.
A condition for access to the single market is that a country must be a member of the European Economic Area (EEA), either as a member of the EU or of the EFTA countries (Norway, Iceland, Liechtenstein and Switzerland). One EFTA member, Switzerland, has not joined the EEA, but has a series of bilateral agreements with the EU which allow it to participate in the internal market. However, all non-EU members are still required to accept the free movement of people, goods, services and capital within the internal market of the European Union. The UK would therefore not be able to block immigration from other EU countries if they chose either the Swiss or the Norwegian model. That practically leaves the “leave campaign” voters with a choice between the Canadian or WTO model, which was certainly not what they were bargaining for.
Apart from the immigration issue, the reclaiming of British sovereignty played a big role in the campaign. It has often been claimed that the British parliament is no longer sovereign because Brussels makes 75-80% of the laws. However, according to the European Movement and the House of Commons Library, regulations and directives from the EU make up a mere 8-10% of the law. Or in short, 90% of the law is still made by the British parliament. Here too, the promise that with a Brexit Brussels will have no influence on British law any more is false – at least insofar as either the Norwegian or Swiss options are the preferred future models. Both Norway and Switzerland are obliged in terms of the European Economic Area Agreement to adhere to and implement European law.
Thus, voters who did not want European law to play a role in UK trade with the EU in future had no other option but to select either the Canadian or the WTO model. The draft free trade deal with Canada has taken seven years to negotiate and has not been concluded yet. It aims at reducing regulatory barriers but does not give tariff-free access to all goods and excludes some key service sectors that are of immense importance to the UK. If they chose the WTO option, the UK would in future be in the same position as countries like New Zealand. This will be a disaster for the UK which conducts 50% of its trade with the EU.
A further, equally strong argument for a rerun of the referendum is that the ballot did not enable voters to consider the consequences for the unity of the United Kingdom. The ballot should have linked the choice to leave the EU to the dangers for the unity of the UK with a further question requiring leave voters to say whether they would still support a Brexit if that would imply that a member of the United Kingdom might leave.
Since a referendum does not have binding force, the British parliament can still debate the petition for a rerun of the referendum and grant it. It would be better to reconsider the issue than soldier on simply because the UK politicians do not want to lose face. It is particularly in the interests of young Britons who still have their lives ahead of them. DM
Loammi Wolf is a constitutional law specialist who runs the initiative Democracy for Peace.
Photo: UK Independence Party (UKIP) leader Nigel Farage poses for pictures with supporters (not pictured) outside the Electoral Commission in London, Britain, 31 March 2016. EPA/ANDY RAIN
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