Home EJIL Analysis Stairway to Brexit

Stairway to Brexit

Published on June 24, 2016        Author: 

So it is Brexit. As if the current volatile mix of crises affecting Europe and the world was not enough, British voters  may have just dealt a death blow to the European Union (by 52% to 48%). Or things will eventually work out – nobody really knows. Nor does anybody really know whether we will now have an economic meltdown, or what exact arrangements Britain will negotiate with the EU, i.e. whether it’ll be full-calorie Brexit or Brexit lite, e.g. with respect to the single market and the free movement of people. What we do know is that the UK and the EU are entering a prolonged period of uncertainty.

We have seen (yet again) the power of emotion and identity politics, driven largely by concerns over immigration, with people voting with their guts rather than with their brains – see also Trump, Donald. (Do you know you have more nerve-endings in your gut than in your head? Look it up.) We have also seen how momentous events are shaped not only by structural processes, but also by petty decisions of single individuals who were in the right place at the wrong time. Brexit would never had happened had David Cameron not made a promise he probably didn’t think he would have to keep to have a referendum, all to appease malcontents within his own party. And while a similar gamble succeeded (just barely) with the Scottish referendum, here it backfired rather spectacularly. The Disunited Kingdom, in which London, Scotland and Northern Ireland have all voted Remain but most of England has voted Leave, is very much a reality – at least for now, since Scotland will likely have a second independence referendum in the next few years. That, and the austerity which had the greatest impact on the most vulnerable of people, is the sad legacy of Cameron’s premiership. He has just announced that he will be stepping down as prime minister by October, but the irony is that we may yet remember him sentimentally under, say, a prime minister Boris Johnson.

In other, happier news, Led Zeppelin was cleared by a US jury of charges of plagiarizing the Stairway to Heaven. So enjoy the video below (including Robert Plant’s pant Brexit), while contemplating the future.


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Filed under: EJIL Analysis, European Union

18 Responses

  1. Miroslav Baros

    This is a catastrophic, although not quite unexpected outcome for this county as a whole and for its traditional liberal values if I am allowed to suggest. The pre-referendum campaign was almost entirely based on immigration with strong racist overtones, but a kind of selective racism was pursued; not that all minority groups were deemed threatening, which is rather baffling. Personally I am deeply concerned about the future of anti-discrimation legislation, especially anti-racist protection. Another shocking feature (but, again not for a more serious analyst) was an overwhelming Labour heartlands’ support for Brexit. The people who benefited from a law that provided some degree of protection to the working class voted against the law! God help this country now!

  2. Rashmi Raman

    Excellent and timely observed as usual, Marko. I am in London this week – and watching voters troop enthusiastically to polling booths yesterday was a revelation in the incredible power of demagoguery to control democracy. It is sobering thought indeed that the trend portends dangerously for times ahead…Trump seems like a real possibility now. I was watching the latest production of Macbeth at Shakespeare’s Globe theatre last week. It was an appropriate accompaniment to the political destinies we are writing today. “Something wicked here comes…”

  3. Ed Robinson

    Thanks Marko. Amid everything else I found this rather striking from an international law perspective:

    “Mr Cameron previously said he would trigger Article 50 as soon as possible after a Leave vote but Boris Johnson and Michael Gove who led the campaign to get Britain out of the EU have said he should not rush into it.

    They also said they wanted to make immediate changes before the UK actually leaves the EU, such as curbing the power of EU judges and limiting the free movement of workers, potentially in breach of the UK’s treaty obligations.” (

    Given the UK presumably needs to negotiate a whole new series of treaties with the EU and rest of the world, I wonder if now is really the best time to send a clear signal that it can’t be relied on to abide by existing treaty obligations for as long as they remain in force?

  4. Nelson F. Coelho

    Dear Marko, would you share the idea that if the EU member states offer an unaffordable agreement to the UK, the British Parliament may be forced to launch a new referendum in two years’ time? I ask this because when I look into the rules of Article 50, I notice that the UK will have no voice in deciding the conditions for leaving the Union, and will end up having its MP with just a “take it or leave it” decision over that matter. From my perspective, yesterday’s referendum only mandates the Parliament to open negotiations with the EU to agree a withdrawal from the Union, and not necessarily to accept all possible outcomes that this negotiation procedure might entail. I would argue that if (1) the soon-to-be elected British government does not share a fundamentalist pro-Brexit view, if (2) the governments of (most/all) other members of the Union actively wish the UK to remain a member of the EU and (3) if an unacceptable settlement deal is offered by the latter to the former, then the British Parliament will be politically forced (and/or willing) to launch a new referendum to ask the British citizenry whether they accept the conditions imposed by the EU to fulfil the mandate they received from the 23/06 referendum. This scenario would signify a two-year limbo at the end of which the UK could actually withdraw its decision to withdraw, hence notifying the European Council of its renewed intentions and abandoning all ongoing negotiations. I am under the impression that the Bremain camp failed to grasp, this morning, that in political and legal terms, “this is not the end; it is not even the beginning of the end; but it is, perhaps, the end of the beginning” of a discussion with such a geopolitical impact for the UK, and also for the rest of the EU member states, that it ought to deserve much more than just four months of debate with little information and much speculation about what sort of agreement will actually be imposed on the British people. All in all, I would say that, in my opinion, the “prolonged period of uncertainty” you refer does not necessarily lead to a EU without the UK. This will first and foremost depend on who will win the next elections in the UK; and then, on whether European institutions have the guts (sic) to call this bluff and whether they are ready to turn it into an unaffordable divorce. Otherwise, and if this hypothesis I propose is ignored, EU citizen have no alternative but to accept the fatality of a British referendum and to numbly listen to that other Led Zeppelin song: “Babe I’m Gonna Leave You”.

  5. Dear Marko,

    When I was a studying for my Advanced Diploma in Law more than two decades ago in 1995-1996, one of the prerequisite modular subjects that I had to formally study was the European Community (EC) [the precursor to the European Union (EU)] Laws, which no doubt, I had enjoyed learning with my classmates and batchmates, such as Keshminder Randhawa, Nades, Haris, Ragu, Yang, Vicky etc. I used to discuss the subject with my German Uncle Michael back then as I was living with him (Germany will become the financial powerhouse of Europe with Frankfurt leading the march!).

    Back then, Britain was still a member of the European Community/Union. It had joined the EC in 1973. Today, more than 20 years later, I actually witnessed the development of a referendum which voted for the exit : Britain is no longer in the EU :

    EU referendum live: Boris Johnson hails ‘glorious opportunity’ of Brexit as David Cameron resigns.

  6. Marko Milanovic Marko Milanovic

    Many thanks to everyone for the comments. Nelson, while the referendum is not legally binding, the political factors at work are such that, absent some tectonic event, no UK government would be able to stay in the EU. The question is what kind of a future regime they will negotiate – in particular if the UK stays in the EEA. Here’s an excellent post by Steve Peers analyzing various legal issues arising out of Brexit, as well as possible future modalities:

  7. Marko Milanovic Marko Milanovic

    Lord Ashcroft did a private exit poll of the Brexit vote; some of the results are fascinating, especially the age, educational and occupational demographics:

  8. Jordan

    News pendants in US question whether there will be a UK in the future. Maybe self-determination will be revisited at this site.

  9. Jordan

    Darn phone changes words, sorry

  10. Veronika Bilkova Veronika Bilkova

    Thanks for the post, Marko. I am as surprised and sad as almost anyone else here.

    At the same time, I wonder to what extent it is helpful to analyse the results in terms of people voting with their guts rather than with their brains. And to look for comfort in the polls showing that those who have voted in a different way than we would like them to, are in the end old, uneducated or, well, simply stupid. It is my impression that this attitude, so often demonstrated by the political or other elites, might be one of the factors which had provoked this whole Brexit process in the first place. Together with the reluctance of the elites to speak, and listen, to those they see as “old/uneducated/stupid”.

    From the international legal perspective, Brexit seems to be yet another instance of practice demonstrating that referendum is probably not such a great tool, allowing to find out what the real will of the people is, as it is sometimes claimed in the doctrine. After all, the will of the people (or, rather, of concrete individuals making up this people) is very complex. And if “the people” is forced to translate it into a simple Yes or No answer to a question, which does not, and cannot, do justice to this complexity, then the result risks going in one way or the other depending on very minor, even coincidental factors.

  11. Excellent post. I would like to add a couple of things, one concerning the future of legal practice and education in the UK, the other on constitutional law issues (as a brief reply to Veronika).

    First, the Solicitor Regulation Authority has issued a statement yesterday explaining, quite predictably, that ‘As it stands there is no impact on your ability to practice or apply. We will keep you updated if this position changes in the future’. ( – there is also a similar statement on the website of the Bar Standards Board:

    Some law schools have also issued statements to reassure students and reiterate that, for the time being, EU law remains a compulsory module in the LLB curriculum. This could be an interesting development to follow. In my view, it would still make quite a lot of sense to keep EU law compulsory, but it is easy to see how some may disagree.

    As to constitutional issues, I agree with Veronika that the instrument of referendum is perhaps ill-suited to this kind of issues. Interestingly, constitutional limits are not unheard of: for example, a provision in Article 75 of the Italian constitution provides that ‘[n]o referendum may be held on a law regulating taxes, the budget, amnesty or pardon, or a law ratifying an international treaty’. I think very solid reasons militate in favour of such a choice, yesterday’s events being poised to become the strongest argument.

  12. Miroslav Baros

    Thanks for the link Marko. A comprehensive poll exit and pretty indicative of the phenomenon: a total lack of a relevant debate and focusing almost exclusively on immigration; the character of the “debate” produced the result. Elderly, uneducated and unemployed overwhelmingly voted for exit. One in 20 of the leavers thought that trade and economy would benefit from leaving the EU. So much for the relevance of the debate! A vast majority of the leavers voted because of the inability to manage immigration. Will those people feel betrayed today after the main leave campaigner admitted that Brexit will not curb immigration? Secondly, and this is a rather serious issue, unlike the Scitish referendum 16 and 17 year olds were not allowed to vote. But it is precisely this group will have to deal with consequences of the decision; the one that they were not allowed to participate in making; how absurd! So, maybe for both sides annulling the result of this unnecessary and sad referendum would be the best outcome?

  13. Larry Helfer

    For an analysis of Article 50 and other international law aspects of Brexit, see this piece just posted on Opinio Juris: (The usual apologies for self-promotion.)

  14. Martin Lederman

    Marko: I don’t know much about the practicalities of UK politics, but I had been wondering about just this possibility, and am heartened to read that it is at least not entirely inconceivable. Please tell me that there’s a real shot:…/an-astute-online-comment-…/

  15. Rossana Deplano

    Hi Martin,

    I don’t think that is a realistic option. Anyway, that’s just my opinion. You can find more on the constitutional law implications of Brexit here:

  16. Shimon

    Talking about the “most vulnerable of people”, it’s thanks to those people that the Leave campaign won. Analysis of the voting shows that the wealthier people are the more likely they were to have voted Remain. If nothing else, this referendum has shown the massive number of people in the UK who have not benefited from globalisation – and the remote, arrogant, inefficient, unaccountable and opaque bureaucratic superstructure that is the EU has not shown itself capable of making a significant difference to their lives. While fears concerning the short to medium term economic and social consequences of Brexit are not unfounded the long term consequences of staying in an EU which has shown itself to be disdainful of popular concerns and unwilling to countenance real reform would have been far, far worse.

  17. […] earlier posts (here and here) there was a discussion about the different scenarios that might play out following the […]