As I watched the last US presidential debate of the 2016 election live over breakfast a few weeks ago, I recalled the last time I had spent an entire morning glued to the television screen watching political developments unfold. It was on 24 June, when the results of the referendum on the UK’s membership of the European Union were announced live on the BBC (a perk of living in Hong Kong and being 7 hours ahead of the UK is that I can watch British election results in real time without having to pull an all-nighter). It was 11:40 am here when David Dimbleby confirmed what felt like the “chronicle of a death foretold” soon after the vote counts began to trickle in: the UK had chosen to leave the EU.
The news refused to sink in, even as I stared at the headline flashing across the screen. The outcome had a much more intense emotional impact on me than I had anticipated. On Brexit, I am both biased and non-biased: biased, as a Spaniard brought up in the UK, who has extensively exercised her rights as an EU citizen; and non-biased, for having made a career and a profession of the study of EU law for over two decades. And in my two capacities, my feelings were unanimous: my heart said remain, and my head said remain. More accurately, my head said “remain and revolt”, as I believe that the UK could have used its solid position within the EU to push for a superior process of integration. But remain nonetheless.
I have undoubtedly been shaped both as an individual and as a professional by the opportunities offered to me by my UK residency. My family moved to London when I was just 11 years old. Since then, I have spent a total of 12 crucial years living in Britain. My first job was at the University of Glasgow. Although I have retained my Spanish nationality and citizenship, and the UK may not be part of my DNA, it is most certainly a vital part of my inner fabric, and I deeply care about the country’s future, whether in or out of the EU. But equally important, I am an EU national, and I have extensively taken advantage of the myriad of privileges that this entails. I am one of the 3 million undergraduate students who have experienced what it is like to live and study in another European country (in my case, Germany) thanks to the EU’s Erasmus university exchange programme. I wrote my Ph.D. at the European University Institute in Florence with a grant partly funded by the EU. I have been a trainee at the European Commission, where I had the chance to witness EU law enforcement and policy-making as it happened. I have extensively exercised my free movement rights, having resided and/or worked in six different EU Member States. As a female and as an employee, I have benefited from gender equality protection and working conditions guaranteed by EU law. Unsurprisingly, I find it regrettable that the continuity of all of these life-changing benefits has now been compromised for UK citizens. The result of the referendum is often portrayed as a popular uprising against technocracy and élitism. However, it is unclear whether the potential loss of such privileges, even if seemingly by the will of the beneficiaries, is really a win for the British people or more of an own goal. The idea that citizens’ rights would be at the forefront of the concerns when deciding to call for a nationwide reflection on EU membership is debatable. After all, the referendum was propelled by the same political leadership that put a heavy price tag on tertiary education in some parts of the country; the very one that has pushed Britain into an age of austerity and growing inequality which the United Nations recently declared to be in breach of international human rights.
Beyond my Brexit blues and my personal enjoyment of the perks of EU membership, in the months that have passed since the referendum, I have been mulling over the merits of putting the issue of EU membership up for popular vote. Such a reflection is even more relevant in the light of recent developments in Colombia, where the population has narrowly rejected a historic peace deal between the government and the Farc rebels. Is it really possible to say that, on 23 June, democracy triumphed? Before waiving the revolutionary, anti-élitist flag, the significance of the result requires cautious analysis. On the one hand, it seems apt to let citizens have their say on an issue that has such widespread implications for their everyday lives. On the other hand, membership of the EU is a highly technical matter, and yet opinions are likely to be influenced by a high dose of emotion (my own view included). In the Brexit discussion, Leavers at times reduced this complex reality to a simple choice between democracy and technocracy. Jeffrey Ketland, for instance, sees in the decision to leave the EU a desire of the British people “to take control of their society and its government away from an unelected, undemocratic elite, and into their own hands”. He accuses Remainers of defending a Hobbesian system of select, somewhat authoritarian, governance and decision-making. In competition law, the democracy-technocracy debate has come up in discussions about the choice between public enforcement (in the hands of an expert administrative agency) and private enforcement (left to the courts). Interestingly, a growing number of leading scholars in the US and the EU prefer the more technocratic public enforcement option. In his seminal Antitrust Paradox, the late Robert Bork warned about the dangers of placing excessive confidence on the seemingly democratic choice of private enforcement: “[i]f the courts abandon economic rigor, only [public] agencies can preserve the rationality of the law”. As he stressed the devastating unfairness and anti-competitive consequences of private litigation, he praised the EU system for “centraliz[ing] all enforcement in a single government agency” (p. 439). More recently, Daniel Crane celebrated the shift from democratic to technocratic enforcement in the US since the Chicago School revolution. He advocates for the need to “rationalize antitrust enforcement by moving in the direction of more expert administration and problem-solving approaches rather than relying so heavily on […] the jury and other populist institutions” (p. 1221). In his view, technocracy is desirable, as it is “separated from popular politics, insulated from direct democratic pressures, delegated to industrial-policy specialists, and compartmentalized as a regulatory discipline” (p. 1160).
Returning to democracy and technocracy in the referendum, it seems far too simplistic to discard the merits and perils of either approach to decision-making. There is a risk in “clinging to abstract notions of ‘democracy’ containing no concrete political substance“. In this sense, Ketland’s above interpretation of the democratic value of the Leave vote, while colourful, suffers from two fundamental flaws. First, his idea of democracy is muddled and obfuscated. He calls the EU “non-democratic and unaccountable“, and proposes heeding these concerns through the devolution of the (limited) powers currently in the hands of EU bodies to national institutions. But he seems to overlook that the UK has a hereditary monarchy and a Parliament with a House of Lords that is inherited or “selected”, and a House of Commons that is elected through first-past-the-post voting (and, post-referendum, even an unelected Prime Minister). Unless democracy and accountability are measured in terms of Britishness, it is hard to see how these institutions fare better than those of the EU. Second, he falls into what is, in my view, one of the major fallacies of both sides of the referendum: a tendency to paint all dissenters with the same brush. The reasons for voting to leave were complex and manifold, yet Leave voters are frequently portrayed as racists, or even as being overweight. Ketland’s assumptions vis-à-vis anti-democratic and élitist Remainers are as misleading as these depictions of Brexiters. Even when the post-referendum discourse of the unelected government continues to veer dangerously towards the racist and xenophobic elements of the Leave campaign, I am convinced that many voters do not feel at all represented by the blatant anti-immigrant rhetoric.
As for those who, like Bork and Crane, sing their praises for technocracy, their views somewhat lend support to the idea that élites are quick to reject democratic decision-making processes. While technocracy is a quintessential part of the modus operandi of most international organisations, and it laudably facilitates rational decision-making, it has been rightly noted that experts often display a “preference for avoiding overt political and public deliberation”. And, alas, technocracy is not a panacea. A look at the evolution of competition law in the EU, where enforcement is highly technocratic and was overwhelmingly centralised until 2004, demonstrates that supposed connoisseurs also make imperfect decisions. Adequate enforcement is not just about the institution entrusted with decision-making powers, but depends on the intrinsic qualities of that institution and those working in it. Moreover, since technocratic bodies have limited resources and cannot alone guarantee effective enforcement, the involvement of the courts represents an invaluable supplement to their activities.
If one extrapolates these conclusions to citizen participation in major decisions about the future of the EU, an argument can easily be made in favour of taking the voice of the general population into consideration, as a complement to the action of the experts who lead and propel the European project. Regardless of the merits of integration, alarm bells should go off when it is evident that a significant part of the population feels disenfranchised from the EU, or is simply unaware of its impact on their lives. It places a question mark on the viability of Monnet’s opaque method of integration and remote decision-making, referred to in the introduction of this paper, particularly in a society increasingly sensitive to traditional and mass media. I may be an unrepentant Remainer, but I am well aware that the EU has remarkable imperfections. Rising Euroscepticism cannot be ignored (interestingly, after Brexit, there are reports of citizens in other Member States with an enhanced anti-EU sentiment somewhat warming up to the Union). The European project will continue to face backlash if it insists on being built simply by turning its back on critics, or by playing them down on the assumption that they do not understand the benefits of integration.
While a purely technocratic progression is undesirable, direct democracy cannot, and should not, entirely replace expert decision-making. The assumption that the majority, no matter how narrow, can always be trusted to make sound policy decisions, and that its opinion on fundamental issues should simply prevail is utter madness, and would have the likes of Plato and Aristotle turning in their graves. The logic behind the prevailing representative democracy schemes is precisely that of delegating complex technical choices to the experts that the citizens decide to trust with their vote. But Brexit highlights one of the most significant problems of such systems, which is the distance that often exists between the electorate and their representatives. It has been said that, “[w]here [representative] democracy has been hollowed out in favour of technocracy, the gap between rulers and ruled leave [sic] people prey to populism”. When citizens are given the opportunity to decide directly on a fundamental issue, they should, at the very least, be provided with thorough, reliable information to choose what is in their best interests. Sadly, in the era of post-truth politics, facts-based discussions are becoming increasingly rare. And it is here where I find that the political class and the media let the British people down. A Leave campaign plagued with what have rightly been described as “mendacious lies“, was met with a rather emotionless Remain movement that failed to explain why the wider population should care about the EU. When representatives do not go to great lengths to engage with the demos, the resulting gap leaves people at the mercy of the vast amount of information available in mainstream and social media, the credibility of which is, more often than not, questionable to say the least.
Michael Lynch has discussed the risks of prioritising data quantity over quality as a consequence of the Internet’s information democratisation and the agenda pursued by the mainstream media. When unfiltered, unverified stories are repeated multiple times through various channels, there is a tendency to accept them as facts, regardless of their veracity. This undependability of the information available to citizens jeopardizes the value of democracy over technocracy. Regrettably, Leavers misused this weakness to their own advantage and did a superb job at portraying trustworthy opinions as the enemy of democracy, as reflected in Michael Gove’s infamous assertion that the country had had enough of experts. The problem is not limited to Brexit. Zeynep Tufecki has highlighted how the rise of Donald Trump can be explained partly by a lack of judgment of mainstream media, but mainly by the “mass media’s growing weakness, especially in controlling the limits of what it is acceptable to say”. Rather paradoxically, while unaccountability is often presented as one of the EU’s unforgivable defects, the media and the political class appear to be getting off lightly when it comes to their accountability for providing false and misleading information which may well have swayed public opinion on an issue with such profound consequences.
Regardless of the outcome, one major disappointment of the referendum is that it eschewed what could have been a constructive discussion between experts and the wider public about the merits and demerits of the EU. It presented a valuable opportunity to bring the benefits of the EU closer to the citizens through dialogue. It is a pity that the Remain campaign and EU leaders did not always adequately emphasise, for instance, the advantages of unrestricted access to a market of 28 countries with over 500 million inhabitants; how roads and infrastructure currently taken for granted across the UK have been built with EU funds; how EU citizens’ private information is protected through, arguably, the most thorough data protection regulation in the world; how the protection of competition through EU law ensures a level playing-field for businesses and ultimately has an impact on the quality and prices of our products; how employment rights, from the entitlement to statutory paid holidays to the right not to be discriminated against, are grounded on national legislation rooted in EU law. These benefits are not just available to a select few. While some Remainers did, at times, bring up these and other perks, they were overshadowed in the mass and mainstream media by, inter alia, unfortunate threatening statements made by political figures such as President Jean-Claude Juncker warning that deserters would not be welcomed back with open arms, or President Barack Obama saying that the UK would be at the back of the queue for trade deals with the US. Such remarks make better headlines than facts. Importantly, the debate could also have been a chance to consider the EU’s woes and general direction, and whether the prevailing neo-liberal model of capitalism adequately allows everyday citizens to reap the full benefits of EU membership. It is undeniable that many Leave votes were an expression of discontent with the blemishes of the current design of the EU. Some introspection in this regard would go a long way.
The Brexit saga demonstrates the need to value democracy by giving it a constructive meaning, and by protecting it from the populism and misinformation that can tarnish it. For direct democracy to work, the involvement of the experts and their engagement with the wider population is fundamental, as is “a more honest debate with an emphasis on truth“. Such an endeavour requires considering the possibility of holding accountable those who misuse today’s democratic information channels for manipulation. Daniel Moynihan exquisitely captured this when he said that “[e]veryone is entitled to his own opinion, but not to his own facts”. But the EU is not exempt from responsibility. Greater citizen engagement in the European project is imperative. The Union ought to explore how to enhance people’s participation in its benefits through a more inclusive model of integration and development which, as advocated by Rubio Marín, “considers the value of activities outside the market”.
As a result of these shortcomings, the UK and the EU now seemingly head for an inevitable (?), acrimonious divorce of uncertain consequences. The stability of European integration has been shaken to the core, and the loss of the UK’s constructive, pragmatic influence on the drafting of EU legislation is regrettable. But, as things stand, the UK looks set to be the biggest loser. Since the government is adamant that the Article 50 TEU process be triggered by the end of March 2017, less than 3 years are left to adopt all the legislation needed to fill in the legal quagmire, and to strike a deal with the market that currently absorbs almost half of the country’s exports. Regardless of the outcome of the discussions, a couple of things are clear. First, it will be a costly departure. As Yanis Varoufakis said in a recent interview, it is paradoxical that “instead of dedicating all [the UK’s] resources […] to be looking to the rest of the world, […][the UK is] going to have to spend the next ten years in intense negotiations with Brussels, and dedicating all [its] resources within Brussels and the European Union”. Second, there is no better deal than full membership, and the country will have no voice in the future development of a legal system that will continue to affect it. And all of this, for what exactly? What lies ahead for the citizens who, voluntarily or not, are destined for the consequences of the will of the marginally larger half of those who turned up to vote on 23 June? Thus far, the glimpses that we have had of what post-Brexit Britain might look like paint a bleak picture. And I am not only referring to the troublesome economic predictions. As expert opinions continue to be disdained, and the Tory conference erupts in applause when the PM rejects “activist left-wing human-rights lawyers”, as we are hit with news that the government intends to ask companies to list all foreigners working for them, as suggestions are floated that foreign professionals might only be allowed to remain in the country until British people have been trained to do their jobs, I worry about the vision that this non-democratically elected government seems to think it has carte blanche to impose on my dear UK. Democracy riding off into the sunset? Hardly.
* This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2871428). The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.