Should I stay or should I go?

John Erik Fossum, University of Oslo, reflects on possible implications for British #EUReferendum voters on 23 June.
 
The title of the famous song from the Clash’s Combat Rock album could perhaps sum up the choice that British voters will face on June 23. But the parallel might end with the title, for two reasons. One is that the song is about a sad lover who feels compelled to make a choice. The EU has been exceptionally accommodating to the UK through exemptions and opt-outs, and has at no point confronted it with the question of staying or leaving. It is the UK that has been dithering in-between these two options from the very moment it joined the EU (Lord 2015). In that sense the binary choice that UK leaders are now apparently faced with could almost be construed as the exception. 
 
The other reason is that there are efforts to break out of the binary situation. The Leave Campaign is arguing that a yes vote to Brexit should not automatically trigger a UK use of Article 50 TEU, but should instead be construed as a license to renegotiate a new role for the UK after a positive referendum result. In other words, Brexiters do not want to push the formal leave button before they renegotiate the UK’s role in relation to the EU, but will renegotiate before formally speaking leaving. The argument is that doing that will maximize UK bargaining power. By not pushing the Article 50 TEU button they will not start the process of countdown that Article 50 TEU has installed. Once Article 50 is invoked, if no agreement has been reached after two years the UK will automatically have to leave the EU unless an extension can be assured from the European Council where all the other 27 members have veto. The UK by not pushing the Article 50 TEU button the argument goes will retain flexibility because it will not formally have left the EU whilst renegotiating a favourable new arrangement with the EU as a non-member. The implication is that a favourable Brexit referendum result does not dissolve any bonds between the UK and the EU; the procedure is set in motion only once Article 50 TEU is activated. Since the negotiations might easily extend beyond the present Parliament the future management of the referendum result is shrouded in uncertainty, and may even be said to be privy to political caprice. One aspect pertains to internal dynamics in the Conservative party which is deeply divided on the issue of continued EU membership. Another is that a political election might bring in another political leadership that could overturn this decision. 
 
In the following I will reflect on possible implications of de facto expanding the referendum options which the Leave Campaign apparently wants; look at other instances of referenda in Canada and Norway to illustrate some of the problems associated with ambiguous questions and/or options; and finally reflect on some of the lessons from the Norwegian case that are of relevance to the UK. 
 
Respecting the referendum result 
 
A popular referendum is generally understood as the most democratic decision-making procedure that is available to modern complex societies, even if it is important to underline that the democratic quality hinges on a range of factors, including the absence or presence of political machinations and manipulation pertaining to framing or timing of the referendum; clarity of the options; quality of debate; and range and degree of popular participation (Leduc 2015). The implication is that the legitimacy of the referendum as a means of settling a fundamental question especially over time will hinge on such factors. 
 
If we look at the UK situation it appears that the UK PM felt compelled to hold the referendum to marginalize the UKIP and the Eurosceptic faction of the Conservative Party. Internal party political factors thus figure centrally in the decision and perhaps even the timing of the referendum. On the question, David Cameron has said in the House of Commons that “if the British people vote to leave, there is only one way to bring that about, namely to trigger Article 50 of the Treaties and begin the process of exit, and the British people would rightly expect that to start straight away”. The PM underlines the need to respect the referendum result and that the referendum is about two options only, whereas the Leave Campaign in effect seeks to extend the options to three: a) stay in; b) leave through activating Article 50 TEU; and c) declare the intention to leave but without activating Article 50 TEU. Option c) is said to be about optimizing bargaining leverage but it does not foreclose the possibility of the UK remaining an EU member. The third option therefore has two possible outcomes: the UK leaves the EU after having concluded the negotiations for an alternative affiliation, or the UK remains in the EU after these negotiations. 
 
The Leave Campaign is in effect asking voters to entrust them to carry the process through to a result that will maximize the effect of the yes to Brexit vote. The directness of the popular will as expressed in the referendum is muted by political elites who act as trustees. What is it that differentiates this from representative democracy, other than the fact that those conducting the negotiations are political executives, i.e. persons who are one step removed from Parliament? And if negotiations (as is most likely) exceed beyond the two-year limit, a new election might determine the UK’s status. 
 
An important implication of the Leave position is that a clearly worded question is turned into an unclear substantive outcome, and the referendum procedure is rendered subservient to political machinations and/or a subsequent election. Even if the UK experience is unique in an EU context there are historical examples of unclear questions and unclear substantive choices. Two examples warrant brief examination here. 
 
Questions and Options
 
Perhaps the closest historical analogies to the Brexit issue are the two Quebec secession referendums of 1980 and 1995.  The first was turned down with a clear majority: 60-40 percent against, whereas the latter came very close to a yes. The difference was a mere 54.228 votes or 50.48 percent in favour of the No option. The question posed in the referendum read as follows: "Do you agree that Québec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the Bill respecting the future of Québec and of the agreement signed on 12 June 1995?" Here we see that the issue of negotiations was explicitly included in the wording of the question; thus the question itself rendered unclear what persons voting yes actually voted for. 
 
This created a lot of uncertainty and ambiguity in Quebec. Some voters for instance thought that they could vote yes to the question of Quebec secession from Canada and still retain their Canadian citizenship; that they would continue to send members to the federal parliament in Ottawa; and that they would continue to use the Canadian dollar (Young 1998:318-19). The response paved the way to a Supreme Court test of the legality of secession where the Supreme Court declared that there was no legal right for Quebec to unilaterally secede from Canada but there was a political duty to negotiate with a Quebec seeking to secede. The Supreme Court underlined the importance of a clear majority on a clear question and provisions for that were spelled out in the so-called Clarity Act (An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, 2000). 
 
Another example is Norway’s referendum on EU membership in November 1994. The question here was clearly worded: it was a matter of saying yes or no to Norwegian EU membership. Nevertheless, as the period since 1994 has underlined the circumstances surrounding the vote were less clear, rendering the yes-no issue ambiguous. The point is that when the referendum was held Norway had already entered the European Economic Area, which is a dynamic agreement where Norway has ended up adopting 3/4 of all EU legislation. In substantive terms the choice facing electors was actually about which form of association, not whether Norway should have a close EU association (which had already been settled by the EEA Agreement). Thus, the choice was whether to vote no which would entail remaining in the EEA or yes to full EU membership (and departure from EFTA). 
 
It is often said that the idea with the EEA was to facilitate later EU membership, even if that is a disputed assertion. The fact that the EEA Agreement was in place most likely served to divide EU proponents because many supporters of a close relationship to the EU could settle for the EEA Agreement (which excluded the most sensitive issue-areas, agriculture and fisheries). 
 
Implications
 
The Quebec example showed that an ambiguously worded question can undermine the legitimacy of the referendum and engender a lot of confusion. The Norwegian example showed that even a clearly worded question may gloss over a far more complex reality and therefore not settle the issue in a manner consistent with what the majority voted in favour of in the referendum. Another way of putting it is to say that there was a clear discrepancy between the wording of the question and the substantive choice facing electors. 
 
It is often said in Norway that the No side won at the day of the referendum, but has lost every day since. The EEA Agreement (and flanking agreements) is a highly dynamic and extremely lopsided arrangement, which many argue reduces Norway to a ‘fax democracy’ (the term which refers to decisions being faxed to Norway from Brussels was coined when faxing was still important). 
 
If we think of the possible substantive implications for the UK case of increasing procedural ambiguity, one possibility is that a yes vote in the UK spooks the EU into entering negotiations due to a concern with the possible domino effects of a Brexit. The idea would be that the EU considers it better to negotiate with a UK still formally a member than with a UK that has left the EU. The question is whether that is a credible assertion. One could also argue that the domino effect will be magnified in a situation where the British have voted to leave, but have not invoked the relevant legislation to start the process rolling. Why is that? Because it lowers the threshold for other EU member states to enter the game and insist that they would want the same concessions as the UK. They would thus in effect alter the negotiation situation from one mainly focused on EU – UK relations to a far more unwieldy process where the concerns of other states eager to renegotiate their terms of membership will enter the fray. Such a process is likely to produce a host of unpredictable effects, with bearings on EU coherence. Given this it appears rather unlikely that the EU will want to enter negotiations with the UK before the UK has formally invoked Article 50 TEU. Note also that Article 50 TEU regulates the terms of exit; the terms of renegotiation must be dealt with through other procedures. 
 
Another aspect of not invoking Article 50 TEU and bank on negotiations with the EU could be that Brexiters secretly know that all other options to membership are inferior ones. That might be why the Leave campaign has been reticent in formulating credible alternative options to EU membership. If we take the EEA as an example and use Norway as the largest and most relevant comparator (the EEA is a formally speaking two-pillar structure with bridging arrangements between EFTA and the EU), because that is the instance of a non-member-state with the most direct and unhindered access to the EU’s internal market, we find that market access comes with direct acceptance and incorporation of all relevant EU legislation, including in flanking areas. What is less commented upon is that this dynamic arrangement has over time brought significant elements of those policy areas that were explicitly excluded from the initial EEA Agreement into the purview of EU legislation. Agriculture is a case in point. It was excluded from the EEA Agreement and yet now 40 percent of the EU legislation that is operative in Norway is in the field of agriculture. These decisions shape the states’ scope for independent action; they also increasingly influence issue-areas where states want to retain their independence. 
 
A similar image appears if we consider the Swiss case. Even if the Swiss arrangement is formally speaking static with more scope for Swiss influence, the reality on the ground is quite similar to the Norwegian case (Lavenex and Schwok in Eriksen and Fossum 2015). The important point is that it is not a matter of choosing a specific model, be it the so-called Norway Option or the Swiss Option but the critical issue pertains to the nature of the actual structure and operation of the relationship that a non-member state has to the EU. The closer in actual practice the relationship a non-member has to the EU the more the EU sets the terms of operations for that state. 
 
The point about the structure of the relationship has direct bearings on the substance of the UK referendum debate. One aspect pertains to what the UK wants. Given that many Brexit supporters are concerned with unhindered UK access to the EU’s internal market, they will have to convincingly show that the UK’s size and influence can weigh up for this structural feature. The other aspect pertains to sovereignty, which by now figures prominently in the Brexit debate. 
 
A closely affiliated non-member state such as Norway lacks access to all those bodies where member states shape decisions in common in the EU, notably the European Council, the Council and the EP. That is well-known and widely stated in the UK referendum campaign. However, a less-noted but equally important point pertains to the broader implications of what we can discern from Norway’s experience in the field of agriculture. The EU’s increasing regulation of issues under the rubric of agriculture shows that this is not only a matter of Norway losing out on co-determination; a closely associated non-member state such as Norway increasingly finds itself losing influence on the processes that determine that state’s scope and terms of self-determination in those issue-areas that were not regulated in the initial EEA Agreement. This latter problem is not only about a state’s ability to control a substantive policy area; it is a deeper question of constitutional sovereignty. The point is that the EU is about a form of integration that is qualitatively different from what we find in any kind of international trade agreement. The EU is a kind of constitutional order, where states pool and share sovereignty. The EU’s member states have instituted a set of common institutions to manage this. The member states help these institutions effectuate their decisions; hence lending a measure of stateness to the EU supranational institutions. Lack of access to this system entails lack of access to those bodies that increasingly structure not only what states have agreed to undertake in common but that also increasingly structure the terms under which states undertake their self-governing in general.
 
The upshot is that a closely affiliated non-member state such as Norway loses out on both co-determination and self-determination. The effect is structural: it stems from the structure of the association which is such that the closer the association, the more the EU determines the conditions for democratic self-rule in the associated non-member states. Non-membership in this shape is a kind of self-imposed hegemony (Eriksen and Fossum 2015); it is the structure of the relationship that matters. It is questionable if the UK’s size is sufficient to upset the weight of this structure. Even if the UK seeks a different agreement than the EEA and the Swiss, the question remains as to how much scope there is available for British exceptionalism. After all, the EU has sought to reduce the range of external forms of affiliation with non-members. The EU is also internally quite differentiated and is very wary of adding further external differentiating impulses, which a distinct UK status would imply. 
The commitment not to invoke Article 50 creates uncertainty as to the UK’s future status. It can be construed as a means of procedural manipulation with effects not entirely dissimilar to those experienced in Quebec: by opening up for several possible options on the yes to Brexit side and therefore greatly increasing the win-set on the Leave side. In the UK the likely political result will be even more disillusioned voters and disgruntled European neighbours.
 
There are two lessons from the Norwegian (and Swiss) case(s). One pertains to the need to stop discussing ‘the Norway option’ or ‘the Swiss option’, and instead focus on the structure of the relationship that these states have developed with the EU. On the ground, in actual operational practice, there are many similarities between what happens to Switzerland and what happens to Norway. In what sense should the situation for the UK be qualitatively different than for these countries? The other lesson pertains to the need to confront the issue of sovereignty head-on, especially for the Remain camp. This is probably one of the thorniest challenges confronting it. But if the Norway case is anything to go by, the No side won the 1994 referendum by insisting that EU membership entailed a loss of democratic sovereignty. The yes side in Norway was mum on these issues because it did not dare to confront them, and ended up basically supporting the opponents on the need to preserve Norwegian democracy. The upshot was to deplete the EU of any significant political normativity. It also deprived the yes side of the main argument, namely that the no to EU was shirking the main issue, in the sense that the European context is one of states being deeply imbricated and interdependent. Even if one wants to leave it is questionable how far one can go, and any solution that simply thinks of democracy in national terms is inadequate. 
 
One of the main justifications of the EU as a political experiment has been the effort to democratize interstate relations, democracy’s traditional Achilles heel. The conundrum facing the Remain camp is that the various crises and the EU’s responses to them have seriously weakened the EU’s democratic credibility. Hence it is more convenient to be silent on these issues. The risk is conceding the normative ground to the opponents. A more constructive approach would be to propose a normative vision for an EU with the UK included. As it stands the Leave campaign has it easy in that it can simply point to the many EU inadequacies; a more constructive debate could be one that engages with how the UK can usefully contribute to dealing with these.
 
----------------------------------------------------------------------

Sources:

Eriksen, E. O. and J.E. Fossum (eds.) (2015) The European Union’s Non-members: Independence Under Hegemony?, London: Routledge.

HM Government (2016) ‘The process for withdrawing from the European Union

Leduc, L. (2015) “Referendums and deliberative democracy”, Electoral Studies, 38: 139-48.

Lord, C. (2015) ‘The United Kingdom, a once and future(?) non-member state’, in Eriksen, E. O. and J.E. Fossum (eds.) (2015) The European Union’s Non-members: Independence Under Hegemony?, London: Routledge, pp.211-229.

Young, R. A. (1998) The Secession of Quebec and the Future of Canada, Montreal & Kingston: McGill-Queen’s Press.

 

Comments policy

All comments posted on the site via Disqus are automatically published. Additionally comments are sent to moderators for checking and removal if necessary. We encourage open debate and real time commenting on the website. The Centre on Constitutional Change cannot be held responsible for any content posted by users. Any complaints about comments on the site should be sent to info@centreonconstitutionalchange.ac.uk

John Erik Fossum's picture
ARENA Centre for European Studies, University of Oslo
27th May 2016
Filed under:

Latest blogs

Read More Posts