Brexit: why EU leaders should hold their horses

Bas van Bockel

According to art. 50 of the Treaty on European Union (“TEU”, Lisbon version), “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. In February of this year the European Parliament published a briefing informing citizens and politicians of the backgrounds and the debate on this provision (published here: http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf). (For those with an academic interest in the issue, I highly recommend the piece by my friend Adam Łazowski, ‘Withdrawal from the European Union and alternatives to membership’ that is referenced). No doubt, the aftermath of the Brexit referendum has brought on a profound constitutional crisis in Britain which will take time to play out. EU leaders, while understandably frustrated and deeply concerned about the harmful consequences of this period of profound uncertainty for the economy and indeed for the very future of the European project, should realize that putting pressure on the UK to submit a notification subject to art. 50 TEU won’t help – and that frankly, it is not the most mature response either.

The constitutional crisis in the UK must now take its course. Amidst serious doubts about the sincerity of the Remain campaign strategy led by Jeremy Corbyn -and perhaps even more serious doubts about PM Cameron’s motives and political judgment in calling for a referendum in the first place- the United Kingdom is more deeply and sharply divided than perhaps ever before in its long and remarkable political history. A fundamental question is whether, under those circumstances, the outcome of the referendum can be deemed to be “in accordance with the constitutional requirements” of the UK, as also required by art. 50 TEU. This difficult question will no doubt be subject to heated public debate, as well as political debate in Westminster and, it seems, in Holyrood in the weeks, months, and (in the worst case) perhaps even years to come. In times of crisis and doubt, it should not be forgotten by European leaders that the question of the constitutionality of the referendum outcome is a question that must be decided by the UK itself before it notifies the European Council of its intention to leave the EU in accordance with art. 50 TEU. The mere fact that the UK resists pressure to submit an art. 50 TEU notification forthwith is already proof that these constitutional doubts exist, and are recognized by UK leaders.

One aspect of the debate that will no doubt further unfold in coming weeks is wat those constitutional requirements are and how they apply in an unprecedented situation like this one. In the UK, it is Parliament (and not the general public!) that is sovereign, and there are many good reasons for this. It is essential for a democracy under the Rule of Law that the legitimate interests of minorities are given due consideration in the political process, in accordance with overriding constitutional principles and customs that ordinary voters are not bound by. Otherwise, democracies would quickly relegate to the fortuitous tyranny of the majority over minorities and this is one vital function of the constitutional process in the UK and elsewhere that politicians in the UK will have to consider in the time to come when discussing the outcome and consequences of the referendum. In the meanwhile, Europeans elsewhere and their leaders simply have no choice but to be patient, as any other strategy could easily do more harm than good.