University of Bologna Law Review (Jul 2020)
Brexit, the Misrepresentation of Democracy, and the Rock of Gibraltar
Abstract
This short essay makes three points regarding Brexit that have not been widely considered in public or academic debate. First, Brexit advocates (Leavers) successfully misrepresented the referendum of June 2016 as a definitive expression of democratic will. (“The people have spoken.”) The slim majority result was less than such an expression, particularly because it ignored intercommunal and intergenerational democratic values—most profoundly, overriding clear majorities in Scotland and Northern Ireland which had voted to remain in the EU. Second, even though within a year of that referendum, a majority of Britons (Remainers) had come to oppose Brexit, political leadership among the Remainers was woefully ineffective. Some, like Prime Minister Theresa May, simply changed sides, wrongheadedly accepting the people-have-spoken rhetoric. Other Remainers continued to make their case, but did not effectively argue that people had not spoken. Perhaps, most crucially, the British “first past the post” electoral system provided no viable remain option in the December 2019 Parliamentary elections. Put simply, in the December 2019 Parliamentary elections, Remainers had no one to vote for. Third, hopes that the UK could easily rejoin the European Union (encouraged in part by remarks of EU leaders) are false. Article 49 of the Treaty on European Union (TEU) requires that a state which has left the EU should go through a rigorous admission process. Since Article 49 requires unanimity among EU member states, any member with an objection to Britain rejoining could block readmission. Most troubling for Britain could be Spain’s long-standing claim for the return of Gibraltar to which the UK would be loathe to accede and from which Spain would be loathe to retreat.
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