Responsibility, Voice and Exit: Britain Alone?

A Biondi and P Birkinshaw (eds), Britain Alone? The Implications and Consequences of the UK Exit from the EU (2015, Forthcoming)

Oxford Legal Studies Research Paper No. 22/2015

30 Pages Posted: 21 Apr 2015

See all articles by Paul P. Craig

Paul P. Craig

University of Oxford - Faculty of Law

Date Written: April 16, 2015

Abstract

It remains to be seen whether there is a referendum after the 2015 election, but even if it is not held during the tenure of the next Parliament the issue is unlikely to disappear from the political agenda. It will resurface when the Conservatives return to government, if not before. The outcome, whatsoever it might be, will be of major significance for the UK going forward. If the vote is for the status quo it will resolve the matter for a generation, notwithstanding the desires of UKIP and some Eurosceptics to the contrary. If the vote is for exit, it will signal the beginning of a lengthy unraveling exercise and the structuring of some new relationship between the UK and the EU.

It is for this reason that the classic motif of voice and exit is particularly apposite in this context, notwithstanding that it was fashioned primarily with a focus on the individual rather than the state. Renegotiation is the classic forum for ‘voice’ exercised by the state that feels some measure of discontent with its international obligations. Withdrawal from the EU is by the same token the classic modality of ‘exit’ if the terms of the renegotiation do not suffice to win approval from the people in a subsequent referendum. This leaves the concept of ‘responsibility’. It reflects the theme of this chapter, which is that conceptions of national constitutional responsibility are central to the discourse about voice and exit. They have been ignored in the debate concerning the EU, which is a serious failing.

The discussion begins with the status quo, connoting in this respect the present ordering of the EU. It is dissatisfaction with the status quo, combined with assumptions as to responsibility for any malaise real or apparent, that shape the call for renegotiation plus subsequent referendum. The assumption commonly made is that responsibility for these problems resides with the EU itself. This hypothesis is at the very least unbalanced. The EU institutions make mistakes like those in any other polity, but the assumption nonetheless ignores the responsibility of Member States for the status quo, judged in terms of the EU institutional architecture, the framing of key substantive Treaty provisions and the way in which we think of states when they partake in the making of EU legislation.

The focus then shifts to renegotiation, through which the state exercises constitutional voice. This necessarily requires choice as to what to take to the bargaining table, an issue on which David Cameron, the Prime Minister, was not forthcoming in the speech in which he promised a referendum, or in the period thereafter. The fact that free movement of people would feature prominently in this regard only became apparent in October 2014. This section considers the dilemmas facing the government in deciding what to renegotiate, where it seeks to steer a course that will satisfy the Eurosceptics within the Conservative Party, and keep UKIP at bay, while at the same time taking something to the bargaining table that other Member States might accept. The discussion highlights the importance of constitutional responsibility in this context, the impact that it should properly have on the subject matter for renegotiation and the way in which the matter is presented to the public.

This is then followed by discussion of the referendum itself. There is, as will be seen, a potential Catch 22 in the holding of the referendum, which flows from the fact that even if a deal is forthcoming between the UK and the other Member States, this will not be binding until it is agreed in accord with the constitutional requirements of each Member State. It is therefore perfectly possible for the UK to conduct a referendum on the basis of an agreement between national governments that is not later ratified by all Member States.

The chapter concludes with a hard look at the consequences of a no vote, and the UK’s ensuing exit from the EU. The nature of the UK’s subsequent relationship with the EU is considered. It is clear what possible types of relationship have been rejected by the Prime Minister and the Eurosceptics. It is much less clear how they do conceive of that relationship, and the possible options are canvassed in the ensuing discussion. It will be argued that the conception of government responsibility is also relevant in this context, most notably in the duty to make clear to the people the extent to which they will remain bound by EU regulatory initiatives under any conceivable relationship with the EU post exit, and that we will have no voice in the content of such measures.

Keywords: referendum, EU, UK, voice, exit, constitutional responsibility

Suggested Citation

Craig, Paul P., Responsibility, Voice and Exit: Britain Alone? (April 16, 2015). A Biondi and P Birkinshaw (eds), Britain Alone? The Implications and Consequences of the UK Exit from the EU (2015, Forthcoming); Oxford Legal Studies Research Paper No. 22/2015. Available at SSRN: https://ssrn.com/abstract=2595292

Paul P. Craig (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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