david kershawWhat did the 52% who voted to leave the EU want? In the first part of a lecture delivered at the Goethe University in Frankfurt, David Kershaw argues that pro-Brexit politicians and media have presumed to interpret the vote as a mandate to ensure Brexit results in the controls on free movement which are likely to result in a hard Brexit. Their optimism about their ability to secure a deal giving Britain control over freedom of movement fails to acknowledge its importance to the rest of the EU.

Manufacturing meaning from meaningless terms

Brexit means Brexit, we are told. But what does Brexit mean? Brexit means that the United Kingdom will not at some point be a member of the European Union. But apart from that truism, Brexit is meaningless. The vote of 52% of the UK electorate who chose to vote in favour of leaving the Union has no meaning, apart only from the fact that they wish to leave. If Brexit is taken to refer to the terms of Brexit, then The Vote has no singular discernible meaning; it provides no “mandate” for a particular form of exit arrangement or strategy; and it provides no direction for whose interests should be promoted, and whose interests should be sacrificed, in the terms of any exit arrangement.

A vote of 52% of the voting electorate translates into 37% of the registered electorate and a mere 34% of the electorate eligible to vote. 28% of the registered electorate did not vote at all on the question they were asked: “Should the United Kingdom remain a member of the European Union or leave the European Union?” A further 7% of the electorate elected not to register for The Vote. This 35% group of silent voters were indifferent to this binary option. But one cannot infer from such indifference that they are indifferent to the terms upon which we are to exit the EU. Different questions related to the different Brexit options may have elicited a voting response. The interests of those who did not vote and their voice are not reduced to nought as a consequence of their non-participation in the binary choice they were offered.

Of the 52% who voted in favour, or of the 48% who voted against, we do not know with any certainty why they exercised their vote as they did. We do not know the cost / benefit calculation or ideological commitments that generated their cross in the relevant box.

  • Many voted for exit in order to control intra-European immigration;
  • others because of their disillusionment with the outcomes generated by our globalised world;
  • others on grounds of low level nationalism, to make Britain great again and not to be told what to do by European bureaucrats;
  • others because of objections to the EU’s perceived democratic deficit;
  • others because of the bad taste that an impression of EU waste and corruption leaves behind;
  • yet others because it was time for the UK to take back control over its own laws, although it wasn’t always clear which laws they wanted to control;
  • others voted to leave to protect the supremacy of the great institution of the UK Parliament, the mother of parliaments, our great centre of representative democracy;
  • for others the idea of the European state is incongruent with the nostalgic idea of a small British state, and the regulatory style of the EU is incongruent with their idea of the British regulatory style;
  • and there is even a small group who voted to protect the UK from the colonialism of the European metric system! I stand before you 6’2″ tall. I have no idea what my height is in metres and centimetres. I am not sure how that can be true. But it is.

For sure, it seems likely that some of these drivers were much more prevalent than others, but there is no majority for any of these, or others (and there are, of course, others), in “the 52”.We can, and we do, look to ex-post polls of voting choices and preferences to fine-tune our understanding of The Vote. Yet those polls will not reflect accurately the drivers of the decision. Such polls are partial and necessarily subject to a range of ex-post justificatory and other biases that distort that polling. And polling, as Brexit and Trump have made very clear, is not what it used to be. But even assuming that polls are still capable of extrapolating national preferences from small voter samples, they are incapable of accessing the complex mix of preferences, biases, commitments and trade-offs that form voting choices.

Even if, let us assume, polls could identify one primary driver of The Vote, and let us assume, such a driver is control of intra-EU immigration. Even then, we still would not know the extent to which those who voted to leave to further that goal would be willing to sacrifice other benefits and rights in order to obtain this sought after, “primary driver” of The Vote. That is, we do not know how firm or precarious such a primary driver was for “the 52”. Votes are the product of a personal balance of considerations, an implicit, sometimes explicit, cost-benefit analysis which contains multiple in-built assumptions about trade-offs, and the limits of acceptable trade-offs. If those trade-offs are different than pre-supposed then that vote would not have been cast as it was. But we can never identify preferences accurately, never mind the implicit trade-offs (and the assumptions that underpin those trade-offs) which underpin such preferences.

Again we can look to polling data, but again it can provide no meaningful direction. It can, as it did last week, tell us that 51% of the UK electorate think that access to the single market should be sacrificed if necessary to obtain control over free movement. But it does not tell us what percentage of the electorate would be willing to make such a sacrifice, if such sacrifice would make you poorer or your friends or family poorer, or how much poorer it would have to make you, your friends or your family in order to reject this sacrifice. Furthermore, such preference-polling does not tell us whether those preferences are a function of a lack of understanding of the meaning of “access to the single market” or “the costs of leaving the Customs Union”, and, therefore, it does not tell us how the vote or the preference would change if one was to ask the question through more precise lenses. For example: the lens of fewer, or indeed more, cars produced, more expensive wine, cheaper meat or the increase in the probability of an interest rate rise on your mortgage. The polls themselves reveal the deep indeterminacy of this preference polling. Consider, for example, a ComRes poll in June 2016, just before the referendum. 45% said they wanted to leave, with 9% undecided; 47% highlighted a concern about immigration BUT 68% said they would not be happy to sacrifice any of their personal annual income to tighten control over immigration.

The Vote, and the polls that attempt to decipher The Vote, are then truly meaningless as a direction for political action; as a direction for the terms of Brexit. This much is incontestable. Yet on a daily basis in the British press politicians and commentators tell us that the Brexit vote is meaningful as a programme for exit. The British people, we are told, voted to ensure we get, above all, control over our borders. The British People, we are told, voted to ensure that we get control over the laws that govern us. The British People, we are told, voted to exit the Customs Union to look beyond Europe to golden free markets in Asia, India and the Americas; we can be like Canada, we did not vote to become Norway.

That is, “Brexit” has now become meaningful in the media’s world of forming and getting ahead of “the story”. “A story” which manufactures and steals a mandate from the jaws of the inevitable ambiguity and meaninglessness of The Vote. In this world, the meaning of The Vote is formed in a competition to capture “the story”; stories which further the aims of the politicians, commentators and media outlets who are best placed to fashion “the story”. A competition that has been squarely won by a nationalistic, anti-immigration version of Brexit. The rest of us are left complaining that this is not what The Vote means; it can’t mean that; it doesn’t have a meaning. But the “story” competition has already played itself out, and so no one listens, unless, that is, you have a literally captive audience in a room in the Goethe University in Frankfurt. “The story” about The Vote is now the truth about The Vote. To suggest otherwise, does run a risk that you will be labelled anti- democratic by “the story” tellers. Yet for the sake of quality of the Brexit debate it is essential that “this story” is challenged and that the inevitably limited meaning of “The Vote” is reclaimed.

The nature of Brexit

Those who have captured the meaning of The Vote hold two strong views. First, that if it has to be hard Brexit, then hard Brexit is what it has to be. Hard Brexit is understood to involve an exit that provides the UK with no access to the single market and no preferential Custom Union arrangements. “Our borders are sacrosanct and this is what The Vote has told us”. If the EU refuses to allow us access to the single market without giving us control over free movement then access to the single market must be sacrificed in order to implement the will of the people expressed in The Vote. The second view they hold is that such a hard exit is unlikely because UK brinksmanship will ensure that Europe will be reasonable and will allow free movement restrictions together with qualified access to the single market and, possibly, preferential Customs Union treatment. This means, for example, that UK based banks will continue to benefit from passporting, that UK cars will not be subject to 10% tariffs and that those cars can be dealt with through quarantined exceptions to a UK exit from the Customs Union. “Why would the European Union not agree to this?” we are told. “EU countries want access to our markets to sell us their cars, their wine, their cheese, their furniture”. In any event, according to our Foreign Secretary, it is “nonsense” to suggest that free movement is a fundamental freedom. And, as it is not as fundamental as everyone thinks, the EU will adjust, negotiate, compromise, and, in exchange, we will continue to buy German cars, French wine and cheese, and Italian clothes and prosecco.

This belief, of course, faces some significant headwinds. From this (Frankfurt) side of the Channel, the Europeans have been very clear. While Brexit means Brexit is meaningless, free movement is not. Free movement really does mean free movement; fundamental really does mean fundamental. Here we see a clash of political and social cultures. Pragmatic Brits bought into the European project for its economic benefits not for the political, peace-seeking romantic ideals that continue to underpin the idea of the European Union for both a significant majority of European citizens, and for an overwhelming majority of those who, currently at least, represent those citizens. From the vantage point of Berlin and Paris free movement within the European Union is a fundamental freedom, a political and value commitment as well as an economic necessity. However, pragmatic deal-makers often fail to understand immovable lines built on ideas and animated values and commitments. They presume they are moveable right up until the end of the negotiation when they discover that they are not; and that they are left without a deal.

In the face of these headwinds, of course even the most belligerent Brexiteer and economic pragmatist can’t help harbouring some doubt and anxiety as to whether such confidence that a deal will be brokered is well founded. This generates an odd, if predictable, partial-interpretation of any indications of compromise from European politicians, particularly of Chancellor Merkel’s words. When she talks of a deal being available (sogar wenn sie sagt, dass die Briten nicht die Rosinen picken koennen) the press focuses only on the availability of a deal not the impossibility of what we call cherry, rather than raisin, picking. When Chancellor Merkel says anything about free movement, through this lens it is readily over-interpreted as a sign of pragmatic compromise. Last week, for example, Chanceller Merkel talked about the need merely to “discuss further” free movement. “Weiter diskutieren”, nicht mehr als das. That’s it. But not to the British Brexit media. This, we were told, was a significant shift in the direction of a border controlling, single market deal for the UK. Hope really does run eternal in Brexit land. Two days later, the anxiety returned as Schäuble merely restated the German government’s articulated position since June 23: no cherry picking; free movement is sacrosanct.

And hope runs in the direction of further political “black swan” events, all of which are welcomed by pro-Brexit groups. Welcomed because there is now an increasing affinity between the current Conservative administration policies and those of other European populist movements, for example, the Freiheitlichen in Austria. But welcomed also as enhancing the probability that the EU will be more flexible in the single movement/free market trade off. Through this lens, Trump’s election shifts the balance of power towards the UK in the negotiation. Europe needs the UK more if the US disengages from Nato and refuses to continue to allow European free riding on military spending. Similarly, one can envisage that the election of the Front National and the European dislocation this will bring would similarly be welcomed – welcomed because it could bring the European project down or result, at least, in a new receptivity to a British deal. Germany is less hopeful in this regard; Merkel’s possible demise at the hands of AFD may let in a SPD / Linke coalition but it will not assist in a pro- British Brexit deal.

Of course, it is distinctly possible that reform of the European Union driven by Europe’s changing political landscape may result in a two-tier Europe with a weaker EU role in relation to non-Euro countries, alongside a strengthened role for the EU in the Eurozone. Sarkozy, for example, has outlined his views on a two-tier Europe in the Financial Times. And although he is now “yesterday’s news”, perhaps there is an inevitability about such an outcome when not all members of the club participate in monetary union. But such reforms are unlikely to come in time to impact the UK’s exit process; and if they come quickly they will not assuage the Brexiteers with their manufactured powerful “mandate” given to them to “take back control” over British laws and borders, because such EU reforms will still require free movement. This leaves the United Kingdom in a precarious position facing many foreseeable and significant economic, political and existential risks.

This post represents the views of the author and not those of the Brexit blog, nor the LSE.

Part two of David Kershaw’s lecture can be read here.

 David Kershaw is Professor of Law at the LSE and Director of the Executive LLM Programme.
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