Herwig Hofmann on "First steps after the UK referendum on Brexit"

With the continuing fallout from the UK's Brexit referendum last week, there has been a great deal of speculation about what happens next.  In this timely contribution, network member Herwig Hofmann (Luxembourg) offers his own thoughtful take, with particular focus on the legal framework governing Article 50 TEU, its intersection with the UK constitution, and EU reforms to enhance democratic legitimacy.

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The result of the question whether the UK should remain a member or leave the European Union, which was put before the UK electorate following a leadership crises in the British conservative party, is now known. Important parts of the UK voted to stay, notably Scotland, Northern Ireland and London. But on a rainy day, the slim majority of just over a million individuals or under two per cent of those eligible to vote however elected to opt for Brexit. This majority was largely made up by those above fifty, not the young. Over 50% of voters aged under fifty voted to stay.

Ever since, uncertainty about the proper way forward is part of the lives of the over five hundred million citizens of the EU and, of course, any politician or more generally, any decision-maker. The issues involved are so complex, and the consequences so difficult to assess not just with regard to their outcome for any citizen and any individual country or part of it, but for Europe as a whole and even globally, that a calm and collected response is necessary.

But in spite of all the uncertainty created, in assessing the situation, one fact is rather telling. Those who cheered the UK result were the likes of Nigel Farage, Marine Le Pen and Geert Wilders. Outside of Europe, this list also included Vladimir Putin and Donald Trump.  None of the above is known to campaign on platforms interested in individual rights or for their commitment to open and tolerant societies.

Should then, in this complex situation, a fast break-up be pursued? Should the official way to doing so, the procedure established in Article 50 of the Treaty on European Union be set in motion with the result that UK membership in the EU would automatically end two years after notification? Tellingly, Article 50 of the Treaty reminds us that the decision to withdraw from the European Union should be made by any Member State in accordance with its own constitutional requirements. The reason is clear, the decision to leave the EU is a decision with fundamental constitutional implications for both the withdrawing country and the EU as a whole.

The UK’s constitution is uncodified and thus difficult to read. Yet some basic principles stand out: Amongst them is the notion of what is known as ‘parliamentary sovereignty’ which indicates that referendums are not part of the constitutional structure and are not binding in this system representative democracy in which parliamentary majorities need to be won. Moreover, the UK has become a quasi-federal structure. In those structures, fundamental constitutional decisions are generally not taken without the agreement of all constituent parts – in the case of the UK that includes England, Wales, Northern Ireland and Scotland.

Part of the unwritten UK constitution is also the notion of the UK being a democracy. It would be a travesty of democratic government if the interests of minorities and their fundamental rights (whether they are guaranteed by the UK legal order or under EU law) were not respected. Democracy is not only a question of head count but also of temporary limits of government, of a system of checks and balances including such requirements as repeat votes for constitutional amendments or super majorities.

So, in the cold light of day, there does not seem to be a parliamentary majority for leaving the EU, the referendum was a snap-shot poll advising the government about the majority feelings. A new election could maybe create such majority but that is far from clear. Why then rush to make Britain leave with the effect that all its citizens, including those in Scotland and Northern Ireland, become deprived of their rights and freedoms associated with EU citizenship?

Arguing in favour of a wait and see approach regarding the UK political turmoil, however, does not mean that we should sit on our hands in the EU and do nothing! Instead, we urgently need to make the EU more democratic and address the big questions relevant to the people living in Europe. Democracy thrives on the open debate of opposing ideas and the possibility to change course, trying one set of ideas and if they don’t work trying others.

Changes are simple, they require only a small tweak of the practice of using existing procedures. Since the European Parliament is directly elected and is a full co-legislator, it would appear high time to allow it to vote on its own legislative initiatives. People are fed up being told what to do. Being able to elect representatives who can enact the programmes into law for which they were elected is central to a thriving democracy. This single element would be a fundamental advancement also on a theoretical level because it allows for a self-learning system in which policy errors can be corrected. Ending the administrative bottle-neck within the Commission impairing democratic discourse can be introduced over-night. It does not require a Treaty amendment, it simply requires a self-commitment by the European Commission to respect majority votes in the European Parliament.

Allowing parliamentary majorities to present legislation and to vote on it as co-legislator with the Council would foster democratic self-government in the EU. It would allow the European Parliament to address by legislative initiative real issues on the mind of Europeans such as the fight against poverty and unemployment and ensuring common security for all Europeans. The vote in the UK could be a wonderful moment to seriously think about democracy in the EU and create the opportunity for dynamic development of legislation made by the citizens and for the citizens.