What does it mean to ‘respect’ the Referendum of the 23rd June, 2016?

By Gerard Delanty

The notion that the outcome of the Referendum of the 23rd June 20916 must be ‘respected’ has been much stated by politicians. This is now as likely to come from the otherwise sealed lips of Labour MPs as from the Tory proleave MPs. But what does it mean? To respect something is not necessarily to say one agrees with it. The fact that 17million people voted to leave the EU is certainly something to respected in the sense of taken seriously. However the fact that 16 million voted in the opposite direction is also to be respected. And, what about those disenfranshised? Are there views not to be respected? Should one respect something that causes harm? In short, respecting someone or something does not tell one what to do. That can be arrived at only by deliberation and reason.

Now, that is exactly what the Act that enabled the referendum intended. As is well now known, and despite the attempts of the government to conceal it, the referendum was advisory, which means that the outcome had to be adjudicated.  There is nothing in the Act that required it to be implemented. To regard it as a simple contest that can be won by a single vote is an obfuscation of the facts of law and of democracy.

This raises another aspect of respect: the government is required to respect the integrity of parliament. Yet, we have an authoritarian Prime Minister who has made strenuous efforts in the courts to deny parliament the right to deliberate the outcome of the referendum. The outcome of the referendum has been instead declared to be clear when it is evident to everyone that it was indecisive. The ‘people’ have not spoken. Of those who could vote and chose to do so, half voted one way; half another way. Neither side won.

The case has not yet been made that the 3.8% lead that Leave had over Remain is decisive. The fact is that this is a small majority and could be called the tyranny of the majority where it not in reality a minority, in two senses of the term: a minority of the electorate (32 per cent) and a minority of the population (c 18%). The argument does not hold that a simple majority is sufficient for the implementation of an advisory referendum result, since a referendum is not like an election. Rather than address this issue and have open discussion and a free vote in parliament, MPs of all shades prefer to repeat the same vacuous slogans of ‘respect the outcome’; ‘respect the will of the people’; ‘respect the decision of the UK’. As is well known in politics, if you repeat the same slogan it comes to take on a reality of its own and people will eventually believe that it is self-evident. Labour MPs in particular will pay a heavy price for their naive resignation with what is a new project of neo-liberal globalisation disguised by shallow rhetoric.

As they squirm in their seats, Labour MPs are allowing the executive to escape the scrutiny of parliament. Why? One reason is that they if May fails to invoke A50 and proceed with her ‘globalisation for everyone’ project there will be a general election that will disseminate Labour.  Labour MPs need to put the interests of the country first and see that what needs to be respected is the integrity of parliamentary democracy. This has yet to be put to the test.

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Thinking Beyond the European Crisis: reflections after Brexit

By Gerard Delanty

This was published on the webstite of the Cicero Foundation. The url is is http://www.cicerofoundation.org/lectures/Gerard_Delanty_After_Brexit.pdf It can also be accessed directly on the website www.cicerofoundation.org

There can be little doubt that Europe is experiencing a significant crisis in recent years. The post-2008 banking crisis, the Greek bailout, the refugee crisis, the rise of authoritarian populist parties, and Brexit reveal a continent in crisis. The optimism that made possible the post 1990 enlargement of the EU is no longer to be found. The EU is clearly on the defensive as new questions are being asked about it very raison d’etre. The question must be asked how significant is the current crisis and how should it be understood.

Is it possible to imagine the end of the EU? This would be the extreme scenario. In the age of Brexit and Trump, extreme scenarios cannot be dismissed. The UK today is suffering from a national psychosis and in the grip of mendacious politicians who have brought about a serious crisis of governability. It is certainly possible to imagine the break-up of the UK. No political order has endured unchanged for ever and the EU is less than six decades old. Its future is by no means guaranteed. The centenary of the October revolution is an occasion to reflect on the transience of what to contemporaries was imputable. Capitalism as the dominant economic system is merely 500 years old and according some recent prognoses cannot be regarded as here for ever.[i] Empires have come and vanished. Those that have survived, such as China, have witnessed seismic transformations in their history. A feature of the modern age has been perpetual revolution. The post-second world war project of European integration was itself the product of a continent torn apart by war. It has generally been seen as the hand-maiden of its nation-states, which are themselves relatively recent creations and like all political constructions they are volatile and prone to conflict.

If the EU comes to an end one day, it will more than likely be due to major crises within nation-states as they desperately respond to unrelenting global pressures. For the moment we can discount conflict between nation-states in Europe. There are certainly signs of significant tension with Russia and Turkey, but war within Europe for now appears to be a thing of the past. External war is not to be discounted, as in the case of Iraq war in 2003, but here too there is little appetite for armed conflict. The world-wide tendency is towards an increase in civil strife within nations rather than between them.

The current problems of the EU, I would like, to suggest are due to problems that are essentially bound up with the transformation of capitalism and are not specific to the EU whose structural problems exacerbate the external problems. These transformations are first and foremost manifest on nations and only secondarily on regional integration. However, these problems confound problems that are endemic to the design of the EU, and have, as a result, led to a legitimation crisis. But the underlying problem is that nation-states are increasingly unable to provide a model of integration for their increasingly diverse populations. It is hardly surprising that the EU is unable to achieve that national cultures are unable to do.

The EU originated in the political context of the end of the Second World War when it was very much tied to the project of post-war reconstruction in the context of the Cold War. The political ambitions were to be realised through economic policies based on the requirements of what was then industrial economies. The Schuman Plan was centrally about cooperation in matters of energy – iron and coal – and the foundations of the EEC were in economic coordination. The degree of integration was fully compatible with the requirements of industrially based economies in an era of economic growth. That era has now finally come to an end and much of the present crisis is a reflection of the transition to a new economic order characterised by post-industrial trends and low growth. The post-war project was entirely one of regional integration centred on France and Germany and with its centre in north west Europe. Capitalism today has broken free of the fetters of regional integration and has delivered different outcomes for European countries. The first signs of crisis began as early the 1972 when the post-1945 western capitalist world went into recession. The entry of neo-liberalism – rapidly in the US and UK since 1980, while piecemeal in the rest of western Europe – postponed the crisis. This was helped by a period of technologically assisted global growth that the EU also benefited from, though at the cost of transferring public debt into private debt. That lifeline lasted until 2008. The present crisis, marked by the Greek bailout, austerity regimes in many countries, and now Brexit, can be seen as beginning in 2008 as a systemic transformation in capitalism manifests itself in wider social and political transformation.

The early decades of European integration were based on a certain compatibility of capitalism and democracy. The political problems around capitalism were largely contained within the national state. The main cleavage for several decades was between capital and labour. European integration was for the greater part spared much of this conflict and was not subject to major demands for democratic legitimation. European integration was thus mostly untouched by domestic politics and for the greater part through market liberalism was relatively uncontentious. It can also be noted that it was a relatively cohesive entity of countries that had much the same civilizational heritage in liberal democracy, capitalism and Christianity and when cultural values and authority were not as much questioned as they are today.

Since the 1980s that changed as the EU consolidated around a project of enhanced political integration and constitutionalisation. The notion was born of European integration founded on the rights of citizens; national societies were slowly and irreversibly changed due to deep and long-lasting processes of Europeanisation. It was inevitable that would lead to greater contestation since the nature of the process involved new regimes of rights, which in turn had a transformative impact on the lives of people.  However, much of this contestation is also an outcome of a new cleavage that became manifest in European societies, namely a conflict between radical cultural pluralism and neo-liberal technocratic governance. This conflict somewhat displaced the older class-based cleavage, which was predominantly about redistribution and revolved around social issues. The lines of division became increasingly around a new generation born into an age of prosperity, mobility and global culture. For one segment, Europe represented mobility and pluralism; for another it was simply part of a new world of neo-liberal governance. This division partly translated into left versus right, where the left became more centred on cultural critiques of capitalism.[ii] This left the social critique of capitalism in an uncertain situation.

In recent years, a further cleavage has become apparent: between those who, on the one side, have not benefited from the New Europe and who largely identify with the national culture, and on the other side those who identify with the New Europe. This latter group lack coherence, since they include radical pluralists and those of the neo-liberal temperament. The outcome of the Brexit referendum of the 23rd June 2016 perfectly reflects this condition of societal polarisation. It is in part a cultural clash but it is one that cuts across the left and right cleavage and thus is fuelled by both right and left political discontents. It is in part the return of class politics but without the progressive spirit: the enemies of class are migrants, whether real or imagined.

In sum, the current situation in which the EU has become embroiled is not entirely one of its own making in that the causes lie within the national societies and derives from a major transformation of capitalism and societal change over the past few decades. The rate of economic and technological change as well as changes in governance have not been matched by changes in consciousness. The older cleavages persist along with new ones. The result is that the relation that previously existed between capitalism and democracy has been reversed: democracy is uncoupling from capitalism but in a form that gives voice to authoritarianism. This situation leads to a new phenomenon: authoritarian democracy. The UK since the Theresa May government and Hungary under Victor Orban are two examples of this.

The Brexit outcome is a stark reminder of how democracy can work contrary to the interests and logic of capitalist accumulation. No one suspected that the elites were not in fact in control and that the UK would act against its economic interests. This was not necessarily foreclosed by the referendum, which resulted in only a minority of the electorate voting to leave the EU: 37 per cent as against 63 per cent who either voted to remain or abstained. The percentage majority of 3.8 per cent was small and it was a government decision[iii] that granted such a slim majority victory. This was a victory of authoritarian populism but one that was achieved through democracy. The result is a deeply polarised society that has now embarked on a catastrophic project of major systemic transformation. The argument I am making is thus that the greater crisis is, in this instance, a national one and that the forces impelling the direction of change are national ones. It is arguably the case that the major divisions are within societies than between them. The UK, for example, is divided between those who see their lives and their society part of Europe and those who seek to find in the reassertion of national culture a different vision of society. The EU is possibly a trope for the latter to assert their difference from the former, who are now in an existential crisis.

The example of Brexit is reflected in the election of Donald Trump. In the USA, too, the lines of national polarisation are firmly drawn and where liberal democracy not only failed to stem the tide of authoritarian populism, but enabled it.  It must be reiterated that there is nothing inevitable in all of this, given the close margins that led to Brexit and the Trump presidency and the Austrian presidency election in December 2016 that saw the rejection of the far-right candidate. However, there appears to be similar trends in many countries where the extreme right are on the rise and the progressive left marginalised or incapacitated.

The project of European integration was never designed to deal with such problems. In many ways the current hiatus is due to the project having achieved many of its earlier goals. Europe has enjoyed a long period of peace and there has been considerable progress made in fostering rights of equality, especially for workers, for women and children. One problem is that much of this achievement is not visible since it has been effectively achieved through the nation state, which is the main vehicle of Europeanisation.

The normative foundations of the EU can be seen to lie both in rights and in mobility. The EU has created complex framework of rights, including human rights, which deeply embedded in domestic laws as a result of EU law. It could therefore be suggested that in certain aspects of the legal framework of the EU, in particular in those that pertain to the rights of the individual, there are wider normative aspects to European integration that transcend the goal of market integration. Habermas and others have characterised this constitutionalisation as a post-national Europe based on citizenship.[iv] It is arguably the case that the normative foundation of the EU is the individual, not the state. This limited sense of the post-national – rather than suprnationalism – is probably the most important legacy of the EU. It is in essence and internal transformation of the nation than its overcoming.

The other legacy that has normative force, in terms of providing a moral and political legitimation of the EU, is mobility. As is well known, the foundation of the EU is in the four mobilities of capital, good, services and labour. The first three constitute the basis of the single market and the fourth, essential to the single market, also transcends the market model of European integration. Through the right to mobility, Europeans have been able to study, live, travel for tourism, work and retire in all member states. This is something that Brexit has put into question. Freedom of movement has come to be a cherished value of Europe today and goes beyond the model of worker mobility. It cannot be so easily abrogated without calling into question the very foundation of the EU. It has also now become integral to the self-understanding of most nations.

The picture characterised in the foregoing places the sources of the current crisis less on the EU than on national societies becoming increasingly polarised in an era of neo-liberal politics. This is underpinned by a major transformation in capitalism. The EU itself suffers from design faults that have contributed to the current crisis. The major treaties that define the project of European integration were all conceived and enacted at times of relative economic growth and political stability, or at least they were not products of a world in crisis. As such, they reflected the positive side of the economic and political prospects that the second half of the twentieth century offered to the world. But the promise of prosperity was not fulfilled for the many. This is probably the major failing of European integration and where the political imagination is totally lacking. That this is now becoming apparent at a time when other changes external to the EU placing a severe burden on the EU, which does not have the capacity to respond.

European integration became at a time when the then EEC was surrounded by dictatorships. It was an age of geopolitical certainty. The eastern frontier with the Warsaw Pact countries had the character of permanence until it collapsed in 1989/90 opening the project of European integration to entirely new possibilities. With the new opportunities came new risks that for a time were manageable. In 2011 with the Arab revolts, the dictatorships of North Africa and the Middle East ceased to provide a stable borderland area. The disastrous Iraq war in 2003 presaged the dangerous new world that was forming on Europe borders. The collapse of Libya and the Syrian civil war, along with tensions with Turkey and Russia, have created an entirely new external context.

This situation of external instability has occurred at a time when external instabilities more generally have become internal instabilities. Nowhere is this more evident than in the case of the financial crisis of 2008, the on-set on austerity policies, and the problem of Greek debt. At European countries enter into a period of low to zero growth, the global economic crisis of capitalism since 2008 has imposed severe strains on European integration. The single currency has resulted in a crisis of systemic integration for the Eurozone area. The Euro currency functioned so long as the Keynesian economy prevailed, but with the transition to the Hayekian neo-liberal economy the national state loses considerable power. In view of the huge differences in the national economies of Europe, an inflexible currency severely limits options, in particular the ability of a given country to devalue its currency. But locked into the single currency, weak economies find themselves subservient to the strong economies. The systemic contradiction at the heart of European integration was the creation of currency union without political union. This mistake may quite well tear Europe apart. It has created a division between creditor and debtor states; between exporting states and importing ones. Political and cultural differences that once were supposed to be the basis of a Europe united in diversity have now become transformed into economic divisions. For long one of the major differences in Europe was between west and east. As a result of the contradictions of the single currency, a new and more systemic divide has risen between the north and the south, between core surplus countries and deficit periphery countries (see Offe’s incisive analysis).[v] The result is increasing debtness in the deficit countries, since those countries must increase their borrowing and spend tax revenues, which would otherwise be spent on social infrastructures, to service the loans. The single currency was a monumental error that has led to the weakening of the EU both politically and economically. The 28 member Union is now likely to see the departure of its second largest member as a result of the Referendum held in the UK in June 2016.

The systemic crisis of European integration – monetary union without political union – is a problem created by the EU. This contradiction fuels other problems that European integration has led to, for example the problem of democratic accountability, the so-called democratic deficit. It has led to a new tension between capitalism and democracy. European integration was primarily driven by market integration, but in pursuing other goals of integration, including monetary union and juridical harmonisation, the project of European integration was brought in different and often contradictory directions. Through the ECJ the EU has brought about greater egalitarianism, but the ECB has created the conditions for a systemic injustice.

The current crisis of European integration thus has a lot to do with the design and rationale of the EU. However, the problems do not all derive from the EU. In so far as it has become part of the neo-liberal order of governance, it must not be forgotten that neo-liberalism has been for long one of the dominant influences in national governments, where of course there are many variations and varieties of capitalism. National governments everywhere are in thrall to neoliberal doctrines at a time when their populations are showing signs of discontent with market solutions for everything. The Brexit vote in the UK was an expression of this protest, though in this case the antidote that the government is offering is more not less globalisation. Nations everywhere are deeply divided and the new cleavages do not derive exclusively from European integration.

What then is likely to be the future of European integration? Despite the intractable problems it faces, the EU remains nonetheless a major global regional power in a world in which regional integration is becoming more important. The clock cannot be set back. Perhaps the current situation might be seen as normal and the previous decades as abnormal. These were decades when Europe enjoyed considerable peace and relative prosperity. In the longer perspective of history and in view of the wider global context, the assumptions that European lived with for some time may need to be revised in a more turbulent world. One thing is for sure and that is that nations need to build bridges not walls.

What is now needed is a fundamental shift in the very conception of Europe to more fully capture solidarity. This is more important than issues of mobility, markets or supranational governance. It is clear that nation is no longer able to deliver social justice without connecting with a larger sense of political community. This may be the most viable opportunity for Europe to reinvent itself.

[i] See Wolfgang Streeck How Will Capitalism End? London: Verso, 2016. Immanuel Wallerstein et al Does Capitalism Have a Future? Oxford: Oxford University Press, 2013.

[ii] See Luc Boltanski and Eve Chiapello The New Spirit of Capitalism. London: Verso, 2006.

[iii] In fact it was a non-decision based on a collective denial of the need for a supermajority. The Referendum was non-binding and the legislation did not therefore specify a super-majority. The government accepted the result based on a simple majority and parliament was not given a chance to vote on it.

[iv] Jürgen Habermas The Postnational Constellation. Cambridge: Polity Press, 2001.

[v] Claus Offe Europe Entrapped. Cambridge: Polity Press, 2015. See also Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism. Cambridge: Polity Press, 2014.

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Brexit and the Iraq War: lessons not learnt

by Gerard Delanty

In 2003 the British parliament voted to go to war with Iraq on the dubious grounds that Iraq possessed weapons of mass destruction that could be used against the UK. This has now proved to be a great mistake, as the Chilcot Report has concluded, and there never was any evidence to support the case for war. Yet, what has been learnt from this exercise in utter folly?  Nothing. The controversy over Brexit today reveals an equally incompetent and supine parliament unable to stand up for truth.

Despite the evidence that it is not in the national interest for the UK to leave the EU and that it would be a step backwards, there has been no protest from parliament against the proBrexit government. It would be appear to be a done deal that the referendum result of the 23rd June 2016 must be implemented and that parliament does not need to debate and vote on whether or should be triggered.

Neither before nor after the Referendum did the government specify a percentage majority. As an advisory referendum, the outcome was subject to further determination as regards whether or not A50 should be triggered. Parliament has remained silent on the basic question of whether the outcome was valid and appears to have accepted the Tory manifesto to implement the result regards of the extent of the majority. Why is this?

The outcome was a slim majority of 3.8%. Why is this small majority being described as the ‘will of the people’? The 58 % cent (17 million) who voted to leave were a mere 37% of an electorate that did not include British citizens living in other EU countries and 16-17 year olds. 63% either voted against or did not vote. There is also the demographic fact that each year there are some 700,000 young people who qualify to vote and most of whom probably can be assumed to be proEuropean.

Why is the outcome treated as if it were ‘first past the post’ election with a simple majority sufficient, when in fact a supermajority of at least 60 % would normally be required for such a major change to the status quo? Why have only a handful of MPS demanded a parliamentary debate and a free vote on whether or not to implement the referendum?

Why is parliament supporting the massive deception that a simple majority is binding and that it is the will of the people when it is obviously nothing of the sort? There is nothing democratic in this. On the contrary it is a perversion of democracy.

The ballot option was simply ‘Leave the European Union’.  It did not specify what this might mean in practice. Some six months later, nobody has any idea what this means. Whatever it means, it certainly does not need to mean leaving the single market even if that requires acceptance of the principle of freedom of movement. It is apparent to all that this would be catastrophic and impractical to realise. Why is the whole issue being discussed on the terms of UKIP and the extreme right wing of the Conservative Party?

There are only three options: to remain within the EU; to leave (the so-called Brexit); or to negotiate an arrangement similar to Norway (i.e. remain in the single market and accept freedom of movement, along with other non-negotiable principles of the EU treaties). Only the first two can be decided by the UK government. The third and its variations will have to be negotiated. It is difficult to see how an outcome can be advantageous. The preferred goal of the government to have a soft-Brexit (control over borders but entry to the single market) is undeliverable.

It is evident that there are no advantages to be gained from leaving the EU and that there is insufficient will to do so. Aside from the economic and political upheaval, there are the intractable problems for Ireland and Scotland and for UK citizens living in the rest of the EU.

In order not to repeat the great mistake made in 2003, parliament needs to debate and vote on the referendum rather than await direction from the courts to do so. Until now the only debate is only on the details of the plan and when that plan should be revealed. The government’s plan is as devoid of substance as was Blair’s evidence that Iraq possessed weapons of mass destruction. Yet, all parliamentarians are capable of addressing is the plan for Brexit, not whether it should go ahead or whether there should be a new referendum. Petrified at the prospect of questioning the outcome of the referendum, they prefer to remain silent and hope that providence will come to the rescue. The government has undermined parliament by denying parliament the right to vote on implementing the outcome and parliament has undermined itself by complicity with a project that is manifestly not in the national interest and for which there is no clear-cut mandate. Instead, we hear obfuscating nonsense about the ‘will of the people’.

Historians in the future will look back on 2016 and wonder why so few parliamentarians failed to take a stance on the outcome of the referendum. The judgement of history is likely to be as negative and that nothing was learnt from the great misadventure of the Iraq War.



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Human Rights and Brexit

Nuno Ferreira

Sue Millns

Samantha Velluti                                                        

Gerard Delanty


  1. The outcome of the referendum held on the 23rd of June has resulted in various and competing perspectives in relation to human rights protection. Those UK human rights laws that do not derive from the implementation of EU legislation will not necessarily be affected. But drawing a clear-cut distinction is far from being an easy enterprise.
  1. Both EU law generally and European human rights law are deeply entrenched and embedded in the law of the UK in very complex ways. Indeed EU human rights law, as represented in the EU’s own human rights instrument – the EU Charter of Fundamental Rights – is highly inter-twined with European human rights law as represented by the European Convention of Human Rights (ECHR) and the case law of the European Court of Human Rights (Strasbourg Court). Whilst in theory upon Brexit the EU Charter would cease to apply, in practice the position would be more complex. In pragmatic terms it might be better to leave existing domestic legislation implementing EU law as it is, with parliamentary intervention on a case-by-case basis and selected repeal of unwanted legislation.[i]
  1. So, there are serious difficulties in severing domestic law from EU human rights law because of the way that the various (UK, EU, ECHR) regimes of human rights protection are interlinked. This explains the difficulty in isolating the question of the human rights implications of Brexit from the debate concerning the UK’s relationship with the ECHR and the Strasbourg Court, and the prospect of a British Bill of Rights.
  1. It should also be reminded that the result of the Brexit referendum was proclaimed to be binding, despite the fact that the referendum was in fact consultative – and therefore not binding – and that no super-majority threshold was set, which would normally be required under such circumstances. For this and other reasons, the democratic legitimacy of Brexit is questionable.[ii] Furthermore, Brexit encroaches on devolved powers and abrogates individual rights of citizenship embodied in the EU citizenship UK citizens possess. This requires an extremely cautious and sensible approach to future Brexit negotiations with the EU.
  1. This contribution will explore these issues, particularly from the perspective of three particular areas: gender and equality policy, children’s rights and external relations. Overall, the key message of this contribution is that the present authors, informed by the work they carry out in the Sussex European Institute and the Centre for Human Rights Research at the University of Sussex, are deeply concerned about the possible erosion of fundamental rights when/if the UK leaves the EU.
  1. Gender and Equality Policy
  1. In the area of gender equality, the EU has led the way in its development of provisions to address sex discrimination, particularly in the work place, and there is a serious risk that when/if the UK leaves the EU this progressive legal protection could be eroded.
  1. On the basis of the equal treatment principle now embodied in Article 157 TFEU, the EC in the 1970s adopted two directives that would become the bedrock of the Union’s gender equality policy over the next decades: the 1975 Equal Pay Directive (EPD) on the elimination of discrimination in all aspects of remuneration between men and women for work of equal value; and the 1976 Equal Treatment Directive (ETD) on equal treatment in access to employment and working conditions. The principle of sex equality was subsequently extended to the sphere of social security.
  1. Since those momentous developments of the 1970s, the ECJ/CJEU elaborated and extended the EC/EU primary and secondary legislation on gender equality.[iii] In 2002, as a way of codifying the relevant case law of the ECJ but also the secondary legislation that had been put in place over the previous twenty years, the EU adopted the Equal Treatment in Employment Directive.[iv] Two years later, it also extended the prohibition against sex discrimination beyond employment in the access to and supply of goods and services.[v] Substantial amendments of the 1976 Equal Treatment Directive have added definitions of indirect discrimination and sexual harassment. They also require Member States to set up equality bodies to promote, analyse, monitor and support equal treatment between women and men. The EU has also taken significant steps to improve access to parental leave for employees and to provide health and safety protection for pregnant and breast-feeding women at work.[vi]
  1. Following the adoption of the Amsterdam Treaty, three new directives were adopted.[vii] Council Directive 2000/43/EC prohibited discrimination on grounds of race and ethnic origin beyond the narrow confines of employment. Council Directive 2000/78/EC prohibited discrimination on grounds such as religion, sexual orientation, disability and age in the field of employment.
  1. Finally, Council Directive 2004/113/EC introduced an obligation to ensure gender equality in access to goods and services in the public and private sectors. With a view to consolidating legislation and tidying up existing provisions, the EU also adopted its ‘Recast’ Equal Treatment Directive in 2006.[viii][ix]
  1. Marking a significant shift away from gender equality in employment and towards a more holistic view of equality as a fundamental right, the EU made legally binding its Charter of Fundamental Rights with the Lisbon Treaty. The Charter contains a basic ‘equality before the law’ guarantee (Article 20), as well as a non-discrimination provision (Article 21) and a reference to positive action provisions in the field of gender equality (Article 23).
  1. The expansion of legally codified and enforceable rights in the area of gender equality and non-discrimination have been hugely significant for women in the UK. The UK has implemented the above measures into domestic law, with many provisions in the Equality Act 2010 being based on EU law. It is imperative that the Brexit debate places women’s rights (and worker’s rights) at the centre of its agenda, given that employers will be looking for ways to create a more flexible and cost-effective workforce and that equal rights and maternity rights can be financially costly, particularly for small businesses.
  1. Children’s rights
  1. Children’s rights in the UK have in many respects been enhanced by EU law and policy. The Inquiry rightly mentions the importance of Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography and Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. These two Directives enhance greatly the protection offered to children and illustrate a ‘best practice’ at a global level on how child victims of trafficking and/or sexual exploitation should be protected and their welfare ensured. It is crucial to prevent a possible Brexit from jeopardising the value added by these legal instruments to the UK legal system.
  1. In the particular field of EU labour and employment law, UK children have been both incidental and direct beneficiaries. As incidental beneficiaries, and as a consequence of their parents’ right to move and reside as workers throughout the EU, children have acquired specific rights, including the right to study and train in the host Member State under the same conditions as nationals of that State,[x] and the right to remain in that State once the employment relationship or service provision activity of their parents ended.[xi] Children have also been indirect beneficiaries of the EU’s sex (later, gender) equality agenda, discussed above.
  1. Crucially, children’s rights have been directly enhanced by the Young Workers Directive (Directive 94/33/EC of 22 June 1994 on the protection of young people at work, YWD). The YWD imposes on Member States the obligation to protect children from economic exploitation and any work that may have a negative impact on their development or education. In particular, it sets the minimum age of admission to employment at 15, aligns this age with the educational system milestones, limits working time to 40 hours/week and 8 hours/day, and bans night work for children. The YWD also establishes several obligations that employers have in relation to child workers in the light of their vulnerability. These standards have been generally transposed into UK law, particularly into Part II of the Children and Young Persons Act 1933.
  1. Although the YWD and its rules may be critiqued for its shortcomings,[xii] they overcame a worrying lack of protection for young people in UK labour policy. Yet, there has been a historical resistance from the UK government against the YWD, which is reflected in the four-year extension the UK obtained in relation to the deadline for implementing several (the most important) provisions of the YWD (Article 17(1)(b) YWD). Brexit could thus lead to a dangerous loss of rights for child workers, if the UK law reverts to its previous standards in this field.
  1. Although children were already able to potentially benefit from existing EU equality instruments prohibiting discrimination on grounds of sex (discussed above) and race/ethnic background,[xiii] the Equality Framework Directive allowed children to become explicit and core beneficiaries of EU equality law.[xiv] This is a fundamental instrument for children: EU law enshrines their right to claim equality (interpreted in a broad sense, Article 3) and a significant degree of protection from discriminatory practices against them at work, above all on grounds of age (but also on grounds of sexual orientation, religious belief and disability).
  1. If a possible Brexit eventually leads to weakening the rights and policies described in this section, there is the serious risk of entrapping children in a life-long cycle of low-skilled and low-pay employment, entailing the perpetuation of poor social and working standards, race-to-the-bottom-style competition, and a society unprepared to face the economic, environmental and technological challenges posed to us all in the future.[xv]
  1. International trade

19. As part of the EU, the UK is currently party to trade deals with human rights clauses written into them. A moot point remains whether the UK post-Brexit will have to renegotiate key aspects of its World Trade Organisation (WTO) rights and obligations. Some argue that the UK will be in the same position as a country that is seeking to accede to the WTO for the first time,[xvi] and that it will have to sit down and negotiate its terms of membership with the other WTO Members who will have a power of veto over the outcome of these negotiations.[xvii] Others disagree:[xviii] Bartels, for example, argues that with regard to the multilateral WTO agreements the UK’s rights and obligations are not contingent on its EU membership. Following this view, even though the UK will need to submit a new schedule of commitments, objections to certification by other WTO Members will not have any legal consequences, as certification is not required for a schedule, or a change in a schedule, to be legally effective. So, the position of the UK within the WTO after Brexit could remain the same as it is at present.

  1. To date the EU has concluded an array of international trade agreements that are different in nature and belong to very diverse contexts, namely purely trade relationships to much broader partnerships of which trade is only one element.[xix] Since the 1990s it is a standard policy of the EU’s trade relations with third countries that all agreements include a “human rights” clause which provides that respect for human rights, democracy and the rule of law constitute the basis for the agreement and represent the “essential element” of the agreement on which the reciprocal obligations of the parties are premised, so that human rights violations of a certain scale by one of them can amount to a material breach of the agreement and justify suspension or other counter-measures. In addition, there is also a “non-execution” clause stating that in the event that one party fails to comply with its obligations, the other party is able to adopt “appropriate measures”. There is also an “implementation” clause which provides that ‘the Parties shall adopt any general or specific measures required for them to fulfil their obligations under this Agreement, and shall ensure that they comply with the objectives laid down in this Agreement’.
  1. The UK will need to focus on developing a new trade policy that needs to tackle conflicting pressures: on the one hand, maintain the competitiveness of the British economy and thus promote a push for trade liberalisation and, on the other hand, consider the economic expectations of the British electorate motivated by a dislike for trade liberalisation.[xx] Future trade deals of the UK with third countries will to a good extent be determined and shaped by whatever type of EU-UK agreement and model is applied to the future EU-UK relationship, as well as the place of the UK within the WTO, which remains unsettled.
  1. With this in mind, two possible scenarios/outcomes can be envisaged:
  • the ‘renegotiation’ option;
  • the ‘status quo’ option.

The ‘renegotiation’ option

  1. A number of trade agreements that are binding on the UK have been concluded exclusively by the EU. After Brexit, these agreements would no longer apply to the UK, meaning that the UK would have to renegotiate them. The UK is also party to many preferential trade agreements with third countries negotiated by the EU and the Member States, which are known as ‘mixed agreements’. These would also have to be renegotiated. The UK could model its trade agreements on the current wording in EU trade deals and should refrain from setting higher standards, as this could jeopardise its trade deals with partner countries. The advantage of such approach is that the UK could build on extensive studies and reports conducted so far on EU trade deals and human rights conditionality. The UK could tailor its trade agreements to the needs and specificities of the partner country concerned. Relying on the EU model could also help the UK in tackling the conflicting pressures adverted to above and address legitimacy concerns both on the international and national plane.
  1. Another option for the UK could be to develop its model of trade agreement and human rights conditionality on the basis of the general exceptions provisions under WTO law. However, there is a whole series of obstacles that limit their use for upholding human rights, particularly labour rights and environmental protection.

The ‘status quo’ option

25.Another scenario could be for the UK to remain a party of such preferential trade agreements (containing human rights clauses) to which it is attached through EU membership, as it is in its interests to do so. This could be included in the negotiations between the EU and the UK. If so, it would require the ratification of all the other 27 Member States. In practice, this would involve what Koutrakos has termed a ‘rolling over’ argument, according to which the UK would simply agree with partner countries to ‘roll over’ the provisions of existing agreements. [xxi] However, while at first sight this may seem like a pragmatic option, it would still require some degree of renegotiation, as the provisions of extant agreements would still need to be changed in the light of the new policy context of the UK.

  1. It is difficult to state which is the preferable option, given that much will depend on the type of agreement concluded between the EU and the UK and on the views of the EU Institutions and the other Member States. The ‘status quo’ option might be more pragmatic at first glance, but it may prove to be as cumbersome and complex as the ‘renegotiation’ one.
  1. Conclusion 
  1. The EU has long provided a safety net in terms of the protection of basic fundamental rights through its Treaties, its secondary legislation and its case law. If this safety net of legal protection is removed and national law built around EU provisions is repealed, this will leave individuals vulnerable and at risk of fundamental rights abuse. This is true of civil and political rights, but also true of social and economic rights, particularly in the contexts explored above of gender and equality policy, children’s rights and external relations.
  1. If and when the UK leaves the EU, it will be more important than ever for the UK to develop a strong human rights policy. It will be crucial to retain the 1998 Human Rights Act or, in alternative (or in addition), introduce a comprehensive and substantial Bill of Rights. At any rate, the UK should remain a committed Party to the ECHR, which would soften any damage caused to domestic human rights law and policy by leaving the EU. Any move towards leaving the ECHR would simply lead the UK to become a pariah state in the international arena. Overall, and without ignoring the UK’s own constitutional arrangements, UK domestic courts will also need to see the jurisprudence of the Strasbourg Court as a ‘floor’, not a ‘ceiling’: UK courts should feel free to develop their own human rights case law, provided it goes above and beyond what the Strasbourg Court requires.[xxii]

[i] Proposal put forward by Catherine Barnard, see London School of Economics (LSE) Commission on the Future of Britain in Europe, The implications of Brexit for fundamental rights protection in the UK, Report of the hearing held on 25 February 2016, LSE European Institute, http://www.lse.ac.uk/europeanInstitute/LSE-Commission/Hearing-6—The-implications-of-Brexit-for-fundamental-rights-protection-in-the-UK.pdf, p. 7.

[ii] Gerard Delanty, ‘Brexit: The Case for Illegitimacy’, Huffpost Politics, 7 July 2016, <http://www.huffingtonpost.co.uk/gerard-delanty/brexit_b_10832514.html?&gt;; Gerard Delanty, ‘BREXIT and the Great Pretence of Democracy’, 3 September 2016, <https://gerarddelanty.wordpress.com/2016/09/03/first-blog-post/&gt;.

[iii] Catherine Barnard, ‘Gender Equality in the EU: A Balance Sheet’, in Philip Alston et al. (Eds.) The EU and Human Rights (Oxford: OUP, 1999), 215-279; special issues on EU gender equality law of Feminist Legal Studies (2006, issue 10) and the European Law Journal (2007, issue 13/2).

[iv] Council Directive 2002/73/EC.

[v] Council Directive 2004/113/EC.

[vi] Council Directive 92/85/EC; Council Directive 96/34/EC.

[vii] Susan Millns, ‘Gender Equality, Citizenship and the EU’s Constitutional Future’, European Law Journal, 13/2 (2007): 218-237.

[viii] European Parliament and European Council Directive 2006/54/EC.

[ix] Gender-specific EU legislation includes a variety of other directives such as the Directive on Pregnant Workers (92/85/EEC), Directive on Parental Leave (96/34/EC) and the Directive on the Burden of Proof (97/80/EC). For an up to date overview, see Ann Humhauser-Henning, ‘EU Equality Law – Comprehensive and Truly Transformative?’ in Mia Ronnmar (Ed.) Labour Law, Fundamental Rights and Social Europe (Oxford: Hart Publishing, 2011), 113-136.

[x] Article 12 Regulation (EEC) No 1612/68, now replaced by Article 10 Regulation (EU) No 492/2011 without any amendment.

[xi] Regulation (EEC) No 1251/70 and Council Directive 75/34/EEC, now repealed and replaced by Directive 2004/38/EC, in particular Article 12.

[xii] Nuno Ferreira, ‘Child labour and EU law and policy: a regional solution for a global issue’, in Ingi Iusmen and Helen Stalford (Eds.) The EU as a children’s rights actor: law, policy and structural dimensions. 2015, Verlag Barbara Budrich, pp. 259-288, https://shop.budrich-academic.de/wp-content/uploads/2015/10/10.3244978384740193d.pdf?v=79cba1185463.

[xiii] Council Directive 2000/43/EC.

[xiv] Council Directive 2000/78/EC.

[xv] Nuno Ferreira, ‘Child labour and EU law and policy: a regional solution for a global issue’, p. 285.

[xvi] Panos Koutrakos, ‘What does Brexit mean for the UK in WTO?’, 12 July 2016, www.monckton.com/brexit-mean-uk-wto/

[xvii] Peter Ungphakorn, ‘Nothing simple about UK regaining WTO status post-Brexit,’ 27 June 2016, http://www.ictsd.org/opinion/nothing-simple-about-uk-regaining-wto-status-post-brexit; Clair Gammage, ‘UK Trade after Brexit: Is the WTO a suitable alternative?’, http://legalresearch.blogs.bris.ac.uk/2016/06/uk-trade-after-brexit-is-the-wto-a-suitable-alternative/.

[xviii] Lorand Bartels, ‘The UK’s status in the WTO after Brexit’, University of Cambridge, Faculty of Law, Working Paper September 2016, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2841747.

[xix] Full text access to EU FTAs can be found at: http://ec.europa.eu/trade/policy/countries-and-regions/agreements/index_en.htm#_other-countries; specifically in relation to their labour provisions can be found at http://ilo.org/global/standards/information-resources-and-publications/free-trade-agreements-and-labour-rights/WCMS_115822/lang–en/index.htm#P4_728.

[xx] Steve McGuire, ‘What does an inclusive UK trade policy look like?’, 5 September 2016, http://www.sussex.ac.uk/eu/articles/uk-trade-policy?ref=twitter.

[xxi] Panos Koutrakos, ‘Brexit and International Trade Treaties: a complex, long, and expensive process’, http://lawyers-inforbritain.uk/briefings/brexit-and-international-trade-treaties-a-complex-long-and-expensive-process/.

[xxii] Nuno Ferreira, ‘The Supreme Court in a final push to go beyond Strasbourg’ Public Law, 2015 (3). pp. 367-375.

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Authoritarian Democracy and Militant Democracy

Gerard Delanty

One of the fundamental problems of liberal democracy is that it can do nothing to stop people from becoming illiberal and in certain circumstances it can further illiberalism. Liberal democracy, as left-wing critics often complained, has been a means by which democracy is confined to safe issues that do not call into questions major inequalities in society. Recent developments indicate that it is also unable to stop the rising tide of authoritarianism. Authoritarianism was once seen as the opposite to democracy. Since the collapse of the USSR, liberal democracy appeared to on the rise. However, in many parts of the world today democracy has taken a pronounced authoritarian form. Democracy has often been a vehicle by which authoritarianism entrenches itself in the political process. The most obvious examples of authoritarian democracy are Russia under Putin and Turkey under Erdogan. Both rulers are popular and acquired their power through the democratic process.

In many ways China, despite the absence of liberal democracy, is more democratic than Russia, which may be more an example of authoritarian democracy than Turkey. Nonetheless Putin and Erdogan enjoy democratic legitimacy in ways that the rulers of China do not. There can be no doubt that democracy is a powerful current in the world. The disturbing reality today is that democracy might be in the service of despots. This is a trend that is not comparable to the example of Hitler who acquired power through the electoral process, since once they acquired it, the Nazis immediately abolished democracy. In this case the defense of democracy did not need to reflect too much on itself since it was confronted with its opposite. But when democracy engenders authoritarianism and sustains it, the challenge of defending democracy is different. This is where militant democracy is required.

Militant democracy is the radical defense of democracy against those who use it to further illiberalism. Coined in 1937 by Karl Lowenstein in the context of the rise of fascism, it was given a basis in the post-war German constitution. In recent years the notion has enjoyed a revival as means of combating extremists who use the democratic process to further their aims which are always detrimental to democracy. It is relevant in situations where basic liberal principles such as freedom of speech are subverted to justify hate speech. Militant democracy would thus demand hate speech legislation. Militant democracy generally seeks to defend democracy from those who misuse the formal commitment to equality.

The political situation in Europe and North America is changing and the question can be asked if recent developments are indicative of the disturbing rise of authoritarianism and the need for something like militant democracy. The unimaginable spectre of a Trump victory in the election next month in the USA, the terrifying prospect of Brexit in the UK, and the rise of menacing populist xenophophic parties in Europe are all examples of the transformation of liberal democracy into authoritarian democracy. Even if Trump is not elected, the fact of his rise to power is a reminder of how one of the world largest democracies made possible a development that seriously underlines the principles of modern democracy. Similarly in the UK, since the resignation of David Cameron following the disastrous Referendum of the 23 June 2016 and the appointment of Theresa May as Prime Minister, the country has a hard-line and extremely right-wing government that is intent on the side-lining of parliament in the pursuit of Brexit. Although Trump has styled his possible win as ‘Brexit plus’, the implications for the UK are graver since they amount to a so-called Great Repeal Act that will sweep away decades of progressive legislation. The USA can at least look forward to a presidential change in four years.

Trump in the USA and the May government in the UK are disturbing examples of authoritarian democracy and the pathological effects of the mass media on politics. The politics of Theresa May’s premiership are an assault on democracy in that the government can through an ancient law, the Royal Prerogative, by-pass parliament in enacting new and draconian laws that will take away the rights that people have acquired. It is an attack on democracy in pursuing a momentous project that has a minority support while claiming that it represents the will of the people. But it is the will of the people as interpreted by the government.

Authoritarian democracy is a development of populist politics. Authoritarian democracy draws on populist politics, both of the right and of the left. Both are in clear evidence in the UK and in the USA today. Dissatisfaction with the mainstream fuels public anger which is challenged into radical positions that often are obsessed with migrants and security. The European trend until now is one that sees the growth of anti-migration populist parties which are also are Euro-skeptical. As such, they combine right-wing cultural authoritarianism with left-wing despair of social democracy to promote prosperity for all. Until now, with the exception of Hungary, most of these movements are marginal, but are having a transformative impact on the mainstream as the main centre and right parties take on their policies. The UK is an alarming example of how far this can go. Despite the considerable disquiet of most parliamentarians in the major parties, there is more or less universal acquiescence with the betrayal of democracy and the shallow adherence to a phoney democracy whereby the illusion is preserved that the government has a democratic mandate when it has nothing of the sort since it invented spurious rules.

The present situation calls for militant democracy. This will need to be more than what it is normally called on to do, namely to curb extremists from abusing the democratic process. The problem with authoritarian democracy is that the extremists occupy the executive which consequently will not bend to calls from elsewhere, whether within the legislative or in the wider public sphere. A major challenge then for the present day is to preserve democracy against democracy. This will need to go beyond traditional radical democracy which operates outside the political system, but it will need a much stronger militant democracy that can reply on the mainstream political centre. The forthcoming judgement of the High Court in London if it finds in favour of the People’s Challenge against the government on Article 50 will be an interesting example of militant democracy since, if it is upheld in the event of an appeal to the Supreme Court, it will force real democracy on the government. In that event, it remains to be seen how far authoritarian democracy has gone in eroding the integrity of parliament.

24th October, 2016

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Open Letter to the Prime Minister, Theresa May

Dear Prime Minister:

I am writing to request clarification on a number of points relating to the Brexit process and what appears to be government duplicity on the nature of the Referendum.

Would you please clarify why the result of what was an advisory referendum is being implemented without an agreed threshold?

Why did the government conceal the fact that the European Union Referendum Act of Parliament legislated only for a consultative referendum?

Since the referendum of the 23rd June was not a legislative one, in which case it would have specified a threshold, why is it being treated as one?

The referendum was called for in the first instance because it was believed not to result in a Leave majority. So is it the case that the referendum was deemed to be binding at a time when it was believed that Leave was not likely to gain more than 50% of the vote in order to placate the extreme wing of your party?

When the game went wrong and a Leave margin of 3.8% resulted, why did your government continue to obfuscate the distinction between an advisory and a legislative referendum and to muddle the different norms that govern elections (simple majorities) and referenda (super-majorities on major changes to the status quo)?

Referenda are unlike elections in that they require super-majorities, normally 2/3 majority, for major changes to the status quo. When exactly and by whom was it established that only a simple majority was sufficient for the result to be implemented?

The government manifesto proclaimed that the result should be ‘respected’. When exactly and by whom was it decided that ‘respected’ means to be ‘implemented’ and to be implemented without parliamentary approval?

The Leave campaign was fought on the aspirations to ‘regain sovereignty’ and ‘getting control’ and other such slogans. Is it not a blatant contradiction for the executive (government) to entirely disregard the legislative (parliament) when that was their cause? Does the insistence on the Royal Prerogative to implement Brexit not undermine the cherished value of democracy that you claim to be defending?

How can you claim that there is a clear majority in support of such a momentous constitutional change when only a margin of 3.8% was in favour of Leave? 63% of the electorate did NOT vote to leave the EU. More people did not vote than did vote for Brexit. The 52% Leave who voted is a mere 37% of the electorate. How can this relatively small majority be deemed to legitimate the implementation of a consultative referendum?

Are you not concerned about the implications for all those who did not vote because they were disenfranchised (British citizens living abroad,  16-17 year olds) and that at the next election in 2020 there will be a generation of angry young people who were born EU citizens but will have had their liberties and rights taken away by your government?

Yours sincerely,

Gerard Delanty

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BREXIT and the Great Pretence of Democracy

 Gerard Delanty

The Referendum of 23rd June 2016 has fundamentally undermined British democracy. The government made a catastrophic error in holding the referendum without clarifying the nature of the referendum. The motivations were entirely to do with a conflict within the Conservative Party on the question of the EU and were not in the national interest. The result was proclaimed to be a binding despite the fact that the referendum was consultative and therefore not binding. In an act of wilful deceit, the government is pretending that it was a binding referendum and that it automatically results in the UK leaving the EU without parliamentary approval and without the normal specification of a supermajority. The 3.8% majority is being falsely described as a substantial majority, when it is a slim majority and does not meet the requirement that would otherwise have to be met for such a major change in legislation. This alleged majority is in fact a dictatorship of the 37% of the electorate who voted for Brexit. The notion that 50% plus one is an acceptable threshold is a fiction that the government encouraged people to believe in because it did not expect a Leave vote to exceed that amount. The government has decided to stick with the fabrication for the convenience it offers to hold the Conservative Party together. For their own reasons, most Labour MPS have colluded in the deception.

The legitimacy for Brexit is not valid on democratic grounds simply because a substantial majority did not vote for it. Rather than being a democratic outcome, it is precisely the opposite. The current situation is that the government and more or less all of parliament have colluded in obfuscating the facts and process of the referendum in relation to the democratic process. Democracy is not reducible to a simple majority. Is not just about what a majority decides unless there are clear rules for determining what constitutes a majority. This is why referenda need to be carefully legislated for, in order to ensure that they do not produce illiberal results, which can very easily happen when a minority becomes a majority. A properly functioning democracy has guards against such an occurrence.

There are essentially two kinds of referenda, consultative ones and legislative ones. The latter type are binding and specify the threshold required for a change in legislation. Most referenda held in the UK were on relatively minor issues that do not entail major changes to the status quo and where they were legislative in nature they specified a threshold. An example is the Alternative Vote referendum in 2011. In this case it was specified as legislative and a 50% threshold of a simple majority was specified. Other referenda on more major questions, such as the Scottish Referendum Act of 2013 and the Referendum of 23rd June were consultative and did not specify a threshold. Such referenda are relatively rare[i]  and in the case of the Scottish referendum it was not put to the test since the outcome clearly was a no vote for a major change to the status quo. In the case of the Referendum of 23rd June, the results gave a small majority in favour in favour of Leave.

The government is misrepresenting the figure of 52% votes  –  which in fact is 51.9%  –  as a majority vote of the electorate.  The reality is that only 37.4% of eligible voters voted to Leave, while 34.7% voted to Remain and 27.9% did not turn out to vote.   In absolute numbers, out of an electorate of 46.5 million, 17 million voted Leave, 16 million  voted Remain, and 13 million did not vote.  The non-voters are often incorrectly characterised as either indifferent or support whatever the majority decide. This may be the case in elections, but not in the case of referenda, and especially not in consultative ones. The objective reality is that 37% voted to Leave and 63% did not vote to Leave. The 3.8% margin is in numbers 1,269501 million voters. If half of this number plus one – i.e. 634,7506 – had voted the other way, Remain would have had a majority. I have yet to hear an argument how this could amount to a clear majority that merits a course of action that has no other merit than that it was desired by a small proportion of the electorate and population.

The non-turnout numbers matters greatly because the results of a referendum are very different from the results of an election since they concern long-term changes to the status quo. In the case of referenda that have major societal implications and are binding virtually all modern democracies specify a supermajority for changes to the status quo, normally circa two thirds majority. It is generally accepted that abstentions in the case of referenda should be treated as a vote for the status-quo or at least need to be taken into account in any decision for the implementation of the result.

The government is also undermining the spirit if not the letter of the unwritten constitution in treating the result of what is now widely agreed to be an advisory referendum as binding.  The 2015 EU Referendum Act[ii] never provided for binding implementation of any result delivered and also never specified a threshold.  This was outlined in a government briefing paper[iii]  that clearly specified that it was a consultative as opposed to legislative referendum.

Having failed to define a threshold, which was politically necessary in order to satisfy the minority of ultra right-wing Conservative MPs and the UKIP party, the default of 50% became a generally accepted assumption, even though it was never specifically mentioned and the government in a major miscalculation believed it would never come to pass. The current situation has come about by the government spuriously confirming a consultative referendum into a legislative one, but without the necessary steps (it remains to be seen if the courts force the government to provide parliamentary approval). They may quite well do that, though they will not be able to force a free vote. The courts may be able to enforce constitutional legality, but they cannot enforce legitimacy. In view of the precedent established in March 2003 by Tony Blair in seeking parliamentary approval for the momentous  but also illegal war against Iraq, it is difficult to see how the present Prime Minister’s right to use the Royal Prerogative can be legitimate for an equally momentous act.

The 50% threshold is a sheer invention of the government to solve a problem that it had created. The Referendum of 23rd June produced a very slim majority – 3.8%  – that is now being falsely described as a democratic mandate, the so-called ‘voice of the people’. There is nothing binding in this and nothing democratic and it is not a majority in any significant sense. This was also recognised by Nigel Farage, the ex- leader of the UKIP party in May 2016 when he claimed that a 52-48 outcome in favour of Remain would be contested. It cannot be seriously argued that 3.8% is a substantial majority. The truth is that the UK is seriously split on this issue and that the way to address the issue is not through the Brexit course, which is widely recognised by the vast majority of MPS to be a mistake and the only reason to act on it is because of the so-called majority it produced.

I am convinced that the reason for the great pretence of a democratic outcome is that the government is attempting to disguise the irresponsible decision to hold the referendum in the first place and is using the language of democracy to disguise the sheer undemocratic nature of what are party political aims that have little public support. The supine opposition has more or less collapsed and rather than challenge the deception of the government, with the exception of a handful of MPs, it is actively colluding with it through either silence or repeating the vacuous phrase of a people’s decision.

There are other reasons why the outcome of the referendum should not be implemented. In view of its far-reaching implications it was vital for such major changes that the franchise should include all those entitled to vote. In fact, the franchise was not extended to 16-17 year olds and over-15 year UK nationals living and working abroad. These were effectively disenfranchised, as were UK citizens living abroad.

In addition, to having major negative implications for British citizens, the referendum has serious long-term implications for Scotland and Northern Ireland. Their devolved parliaments were not given an opportunity to approve of the results nor were there any guards against the dictatorship of the English voters.

Quite aside from disenfranchisement of large sectors of the population and the marginalisation of the UK’s regional parliaments, a more serious problem is that the state does not have the legal power to abrogate individual rights of citizenship. Over the past decades, as a result of the membership of the EU, British citizens have accrued new rights, which cannot be simply removed by a small majority.  Over 1.3 million UK citizens work and live in other EU countries and stand to lose this right, as well as those who would otherwise plan to live and work in other EU countries. Removal of citizenship rights against the will of a citizen without good grounds is contrary to the Human Rights Declaration. The abrogation of rights is possible only in relation to specific persons, for example for criminal convictions (this issue is the subject of ongoing legal challenge).

For a referendum to override an existing state of affairs there must be clear and legitimate conditions set out in the referendum and eligibility must extend to all citizens likely to be affected by the implementation of the result, including those not yet of age to vote given that its outcome may have implications for them. A non-binding referendum can of course be implemented, but in view of the long-term consequences, parliament must be fully involved in the implementation of the results of a non-binding referendum. It is vital to acknowledge that in a referendum, unlike in an election, the status quo always takes precedence and changes to it need to be relatively minor or if they are to be major ones they need to be comprehensively addressed.

I cannot think of another example of a referendum anywhere since Germany in the 1930s that has resulted in a decision that, if implemented, will result in the loss of rights. There is, additionally, the grave implications for the Good Friday agreement in Northern Ireland. The government has obfuscated the very great differences between elections and referenda, giving the public the false argument that the same rules apply.

I would also comment that the argument made by some MPs that because the 1975 referendum  on membership of the EEC had a smaller turn out (64%) this someone provides a precedent for implementation is totally erroneous, since entering and leaving are not comparable. Leaving entails a major loss of rights, while entering did not have any major implications for the status quo. In any case that referendum had a more decisive outcome (67/32) and did not at the time have major implications beyond economic cooperation.

The referendum of the 23rd of June itself was designed to put the interests of one party above the national interest. We currently have an utterly unacceptable situation whereby the Prime Minister is insisting on using the anachronistic Royal Prerogative to implement an outcome that has not been approved by parliament and which is held by the majority of parliamentarians not to be in the national interest. This cannot be described as democratic. It is a clear and alarming sign of power shifting to the executive. There is widespread complicity in this deceit across the board – most worryingly by MPs who supported Remain  – since no one wants to admit that the Referendum produced an illegitimate result and that parliament as a whole has also collaborated in the government’s deception. Rather than openly question the government’s course, there is widespread complicity in it by MPs who know that it is wrong. Parliamentarians need to be reminded that they do not have the right simply to remain silent for reasons of party policy or fear for their re-election if they speak the truth. The duty of a parliamentarian is to uphold the principles of democracy[iv]. These principles include a strong commitment against majoritarianism on issues other than elections.

The UK, like most modern democracies, is a representative democracy. In representative democracies parliament oversees and protects democracy. When direct democracy is used, which is rare, it is overseen by parliament in order to ensure that it does not undermine the fundamental assumptions of democracy and the constitutional rights of individuals.

I strongly suspect that the Article 50 may never be invoked or if it is triggered that it will never result in the UK leaving the EU due to the complexity of the issues and the negative consequences and that it will collapse under its own weight. If the government succeed in invoking Article 50, it will have to contend with the alienation and very likely radicalisation of millions of young people and much of the 63 % who did not vote for Brexit, especially as they begin to see through the great pretence. Indeed, in terms of population, only 27% voted to leave.  That leaves a lot of very angry people. A new generation of voters who were born EU citizens and disenfranchised by the June referendum will not forget how the main political parties have colluded in the great pretence.

Simply hoping for the best Brexit deal is not going to solve the problem. The political and intellectual elites will one day find themselves looking very foolish when their legacy is settled and it becomes clear that they did nothing to stop such reckless irresponsibility.


[i] There have been only three nation-wide referenda held in the UK: in 1975 on membership of the then EEC, the Alternative Vote referendum in 2011, and the June 2016 referendum. The other 8 referenda were on regional issues. http://www.parliament.uk/get-involved/elections/referendums-held-in-the-uk/

[ii]The EU Referendum Act  http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted

[iii] House of Commons Briefing Paper CBP-7212 http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7212

[iv] MP ‘s Code of Conduct http://www.publications.parliament.uk/pa/cm201516/cmcode/1076/107602.htm#a3


 Professor A..C. Grayling’s Letter to MPs


Dr Austin Harrington’s blog:


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