Brexit – The Law and Policy Blog

The public service of an “Enemy of the People”

22nd June 2024

You may remember this headline:

This was about the first of the two Brexit cases where the courts had to prevent the government acting in spite of parliament. The court held that an Act of Parliament was required for the Article 50 notification – and when this was upheld by the Supreme Court, such an Act of Parliament was duly (and quickly) passed.

But at the time, there were heightened emotions – and there were headlines like this: “enemies of the people”. The judges were, of course, nothing of the kind. The import of their decision was that our elected parliament should have a certain ultimate power, and not a prime minister exercising a discretion.

One of those three judges was the then Master of the Rolls, Lord Etherton.

Last week he received one of the very highest honours for public service, the GBE.

The citation should be read in full (and I have broken it up for ease of reading, and bold emphasis has been added):

“A retired judge and member of the House of Lords, he was Chair of the Law Commission of England and Wales from 2006 to 2009, Chancellor of the High Court from 2013 to 2016 and Master of the Rolls and Head of Civil Justice in England and Wales from 2016 to 2021.

“In May 2022, he was appointed as the chair, by the Chancellor of the Duchy of Lancaster and the Secretary of State for Defence, of the independent review into the impact of the historic ban on LGBT military personnel and veterans, which was published in July 2023.

“In writing his report, he personally read every testimony provided to the Review, over 1,400 pieces, some of considerable length. He met with veterans and charities throughout the UK, attended Prides throughout Britain, and met a range of ministers, other parliamentarians and military officers from the UK and abroad.

“He dedicated 15 months of his life, without pay or reward, to write and deliver the historic, ground-breaking report and the recommendations, which were fully accepted by the Government, are now being implemented in full.

“His work unveiled a culture of homophobia, bullying, blackmail, sexual assault, abusive investigations into sexual orientation and disgraceful medical examinations resulting in appalling consequences in terms of mental health and wellbeing, homelessness, employment, personal relationships and financial hardship.

“His commitment to the truth has helped draw a line under this unjust aspect of the history of the UK’s armed forces that persisted prior to 2000 but whose damaging consequences are still experienced by many LGBT veterans today.”

The report can be read here.

The introduction by Etherton is also worth reading:

“This Report is about the existence, enforcement and consequences of an official policy current in HM Armed Forces between 1967 and 2000 which is a stain on the illustrious history of the UK’s armed forces. The policy was that no person subject to service law who was gay, lesbian, transgender or transitioning due to gender dysphoria, or who was perceived to be such, even if they were not in fact, could be or remain a member of the armed forces. It made no difference that such military personnel had never engaged in same sex sexual relations or that they were not aware of being gay, lesbian or suffering from gender dysphoria when they joined the armed forces, sometimes when only 15 years of age.

“Some of those who offended against the policy of the Ban were either dismissed following a court-martial or administratively discharged. There were others who could not take the strain and stress of continually hiding their sexuality, and so resigned or did not extend their contract. The policy was not enforced uniformly across the armed forces but, where it was enforced, it was usually enforced in a rigorous and often brutal way with long term damaging consequences, many of which have blighted the lives of affected personnel to this day.

“At the heart of the Review which has led to this Report are the statements of those who were victims of this overt homophobic policy. Some victims have died a natural death since the Ban was removed. Others have taken their own lives. Many of those still living have attempted to die by suicide or have thought about doing so.

“Those statements give shocking evidence of a culture of homophobia, and of bullying, blackmail and sexual assaults, abusive investigations into sexual orientation and sexual preference, disgraceful medical examinations, including conversion therapy, peremptory discharges, and appalling consequences in terms of mental health and wellbeing, homelessness, employment, personal relationships and financial hardship.

“The survivors have waited for at least 23 years for acknowledgment of what they have suffered, and for justice and restitution. Their testimonies are very moving. In many cases, completion of their statements in response to the Review’s Call for Evidence has involved great emotional pain and courage in recalling and recording details of events which occurred decades ago but whose consequences are still acutely felt. Most have a strong feeling of bitterness at what took place. The Report contains quotations from those statements illustrating how the Ban operated in practice and its effect on the lives of those who suffered from it.

“The Report considers the factual and legal background to the Ban and its eventual abandonment in January 2000 after the European Court of Human Rights gave judgment in favour of four service personnel who were investigated and then discharged because of their homosexual orientation. The court held that the investigations and discharges in pursuance of Ministry of Defence (MoD) policy were in breach of Article 8 of the European Convention on Human Rights (right to respect for private and family life) as the UK had failed to establish that they were justified.

“The Report makes recommendations as to what might be done now by the government to acknowledge that the policy was wrong and unjust and in many cases has had life-long adverse consequences for those affected, and also to demonstrate that the service of veterans who suffered under the Ban is appreciated just as much as that of any other veterans who have served the interests of the nation. It considers how veterans affected by the Ban can now be better supported by health and welfare organisations such as the NHS and veterans’ charities.

“The Report is a unique record of what, to the modern eye, is an incomprehensible policy of homophobic bigotry in our armed forces. Promotion and enforcement of the policy by the MoD and by many in the senior ranks of the armed forces set the ethos for other serving personnel in all ranks. The armed forces today are a very different environment in terms of greater diversity and inclusion. My hope is that, if the government accepts all of my recommendations, which are briefly summarised in Annex 11, a line may finally be drawn under this unjust aspect of the history of the UK’s armed forces that persisted prior to 2000 but whose damaging consequences are still experienced by many LGBT veterans today.”

Views may differ on the 2016 tabloid headline quoted above, but there can be no sensible dispute that Etherton now deserves a headline just as bold:

“Servant of the Public”.

Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

1st July 2023

The overlooked obstacle to the United Kingdom withdrawing from the ECHR

From time to time the demand comes from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious obstacle for the government in doing this.

The obstacle – if that is the correct word – is the Good Friday Agreement.

That thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

[…]

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including: […]

“(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

[…]

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

The ECHR is not just mentioned in passing in a recital.

Instead the ECHR is integral to the Good Friday Agreement.

Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.

It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.

When this obstacle is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It may thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?

This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.

It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.

And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.

This is not at all realistic.

And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.

For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.

(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)

Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.

Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.

And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.

Well, at least as long as Northern Ireland remains part of the United Kingdom.

And that would be another story.

This post is partly drawn from this earlier blogpost.

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Life after Brexit – and “exceptionalism”

20th June 2023

There is a useful general rule of writing: if more than one person, in good faith, mistakes the point you are making then it is the fault not of the reader, but the fault of the writer.

This is a general rule, not a universal law, and so it has exceptions; but it is true far more often than not.

And so, when on Friday, in response to my quick post on life after Brexit a number of usually sensible respondents (here and elsewhere) thought I was guilty of the very “exceptionalism” of which I was accusing others, it was moment to think and reflect.

Was I unclear? Or was I being inconsistent, even hypocritical?

I hope it is not the latter, and so I am going to take advantage of this being my own blog to have another go at setting out my view on what the United Kingdom should do now it is outside the European Union.

First, the situation is – well – exceptional. No sovereign state has ever before become an “ex-member” of the European Union.

The nearest analogue is Greenland – not a sovereign state – which left the (predecessor) European Communities – not the European Union.

And so whatever relationship the United Kingdom now has with the European Union necessarily will be distinct and unusual, regardless of the attitudes of those in both the United Kingdom and the European Union.

Second, in saying that there should be joint institutions – “I would prefer the United Kingdom to formally remain outside the European Union while, over time, and in substance, evolving joint institutions, policies and rules in partnership with the European Union” – I am only referring to things which are already in place.

The Trade and Cooperation Agreement provides, for example:

And in the withdrawal agreement, for example:

To say that a suggestion that the United Kingdom and European Union should evolve joint institutions is “exceptionalism” is simply to say you have not read or understood the agreements already in place.

The institutions are already there.

My view is that as the agreed institutional framework is already in place – though in embryonic form – they should in a trial-and-error manner become a ever-firmer basis of the United Kingdom’s relationship with the European Union.

This would make the ongoing relationship practicable and sustainable, rather than some whizz-bang big-bang set of new institutions.

Third, any institutional relationship should be at the pace of both the United Kingdom and European Union – a collaborative approach that is, I aver, distinct from “exceptionalism”.

It is just as important that it works for and suits the European Union as it works for and suits the United Kingdom.

The United Kingdom should not get (and certainly will not get) special, selfless treatment from the European Union.

But there are possible association relationships that would suit the ruthless self-interest of the European Union as well as the interests of the United Kingdom.

The foreseeable future is unlikely to be either the United Kingdom following a trajectory towards an illusory goal of splendid isolation or the United Kingdom being accepted back as a full member state of the European Union.

The United Kingdom instead has to prepare for life on the outside of the European Union, seeking to build the most practical and sustainable relationship consistent with the political totem of the 2016 referendum result.

You may hate the 2016 referendum result – and you are welcome to keep re-fighting the 2016 referendum – but given that neither the governing nor main opposition party are seeking to reverse Brexit (or even offer a further referendum) then the result of that referendum has to stand.

And our policy for the next five to ten years at least has to accept this.

The United Kingdom and the European Union have two detailed agreements with joint institutions.

I would submit that it is not “exceptionalism” to see how such a structured relationship now goes, and to also see what the United Kingdom and the European Union can jointly make of it.

I would submit that “exceptionalism” is pretending that that this is not the mundane reality and that – perhaps by magic – something else can and should happen instead.

There is another rule about writing that one should never answer critics.

Well.

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Why the United Kingdom should not “re-join” the European Union – the United Kingdom should start any application from scratch

16th June 2023

The flaws and the errors of the case for Brexit are many and obvious, but those who oppose and want to reverse Brexit also have a problematic case.

In particular, and as this blog averred a couple of years ago, the notion that the United Kingdom can “re-join” the European Union is misconceived.

The United Kingdom is unlikely to “re-join” the European Union – if that is taken to mean that the United Kingdom will simply be able to step back and resume its role and position, almost as if nothing had happened.

Instead, those who support the United Kingdom being a member of the European Union will have to do is to make the case afresh.

And that will be difficult, as it will require a settled majority support for membership in our polity – and currently neither even the governing party nor official opposition support membership.

The occasion for this post is a fine article over at Byline by the academic Professor Jacob Öberg, which should be read by all who are interested in the topic.

He also has done a Twitter thread:

1) First and most importantly, the UK cannot simply re-join the EU – there is no specific “easier” pathway for a country that has left the EU to re-join. Under EU law the UK is now a third country so would have to reapply and undergo the whole accession procedure from scratch.

— Jacob Öberg (@Jacobbe79601492) June 16, 2023

His article is optimistic – the United Kingdom ever being a member state is not impossible:

But: it is optimism coupled with hard realism.

And he emphasises rightly that it is for the European Union to be satisfied that we are ready to be a member.

(Indeed, the idea that the European Union should let us back just because we ask them too is a form, of course, of British exceptionalism.)

My view, as you may know, is different – and it is one which is not shared with many, if anyone.

I would prefer the United Kingdom to formally remain outside the European Union while, over time, and in substance, evolving joint institutions, policies and rules in partnership with the European Union.

I think only such a close relationship over time, with the United Kingdom not technically being a member state, is sustainable and practical given the state of British politics.

As I type this, I can anticipate 101 responses to this position, and I am sure some will be set out below, but it is in my mind the only view that marries the need for closeness with paying tribute to the Brexit totem.

A totem which will be there, even if you despise it.

Pro-Europeans had over forty years to “win” the argument on European integration, and they failed when it mattered in 2016. And now with the enduring fact of the Brexit referendum, the overall argument is even less likely to be won – or at least be seen to be won.

Some may say that practicalities do not matter that much, and the case for outright European Union membership should be made, and that we should accept nothing less.

My worry is that is the counsel of perfection, and that it will miss the opportunity of actual closer relationships in the meantime.

Let Brexiters have their technical sovereignty, and let us also have a substantial and practical close association with the European Union, while nominally being outside.

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Did the “Blob” block Brexit and force out Boris Johnson? – a full and appropriate response

11th Blob 2023

“Blobby blobby blob blob blobby,” blob Sir Jake Berry.

Blobby!

But.

Blobby blobby blob Brexit, blobby blob?

“Blobby blobby,” blob Mr Blobby.

Blobby blobby Privileges Committee, blobby blobby Boris Johnson?

“Blobby blobby,” blob Mr Blobby.

Well.

Blobby blobby blobby.

Blob, blob.

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Why the dropping of the REUL sunset clause may be very bad news for Rejoiners

11th May 2023

There is a glorious, telling passage in the new book from Anthony Seldon about Boris Johnson.

It is the day of the Brexit referendum result:

“Boris Johnson had expected Remain to win: ‘Holy s**t, f**k, what have we done?’ he uttered under his breath on hearing the result. […]

“‘Oh s**t, we’ve got no plan. We haven’t thought about it. I didn’t think it would happen. Holy crap, what will we do?”

What will we do, indeed.

As a Canadian diplomat remarked at the time: the Brexiters were the dog that had caught up with the car.

And that has pretty much been the general position since: what do we actually do with the possibility of divergence from EU law and policy?

Because there have been few answers to that question, there have been a succession of simplistic, gesture-ridden proposals.

For example, the Johnson government promoted a Bill that would mean that all retained EU law would be repealed automatically on a given date: a so-called “sunset clause”.

As Brexiter ministers could not think of anything specific to repeal, they decided to repeal everything, all at once.

This was silly.

The unintended consequences of sudden removals of forty-five years worth of technical legislation would have been horrific.

And this sudden removal ignored the fact that much of that legislation had been crafted and shaped by United Kingdom ministers and officials in our interests and to meet our needs.

The proposed legislation was a reckless exercise in superficial politics.

The government, now recovering some of its wits under the new Prime Minister Rishi Sunak, has now announced that the sunset clause will be ditched.

This is a sensible and welcome move.

Some who want the United Kingdom to rejoin the European Union may want to gloat at the government’s reversal.

But.

Rejoiners should perhaps be worried instead.

For this shift – like the Windsor framework – is a signal that Brexit silly season may be coming to an end.

And that long-term, fundamental divergence is about to begin.

The government is now getting real – and realistic – about Brexit.

The clowning legislation of Jacob Rees-Mogg is being dumped.

Of course: some Brexiters are upset at this symbolic sunset being itself sunsetted.

For them the politics of Brexit is just about symbols and gestures.

And so they too are quite unaware that the real Brexit is now beginning.

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The failure of Brexit to return real power to Westminster: a worked example

16th March 2023

Yesterday this blog averred that Brexit so far has been about giving power to Whitehall than giving power to Westminster.

Ministers since 2016 have been using the rhetoric of “taking back control” so as to make government less accountable to parliament.

And today: a worked example:

The vote on Wednesday is specifically “on a motion to approve a statutory instrument relating to the Stormont Brake in the Windsor Framework".

But No10 said it will be treated as the moment that MPs deliver their verdict on the overall deal.

— Jack Maidment (@jrmaidment) March 16, 2023

Here is No10 confirming Wednesday's vote is the vote on the overall Brexit deal.

PM's spox: "We said Parliament would have its say on the framework. This vote honours the Prime Minister’s commitment to provide MPs with the opportunity to vote on the new arrangements."

— Jack Maidment (@jrmaidment) March 16, 2023

You may have strong views about Brexit, and you may have strong views about the Windsor Framework.

(This blog has set out why, although the Windsor Framework is a Good Thing, the supposed ‘Stormont Brake’ is more likely to be an ornament than an instrument.)

Yet sensible people would want the Windsor Framework to be be properly considered and scrutinised by parliament.

For that is what sovereign parliaments should be able to do.

But, no.

The government is not giving parliament any adequate opportunity to examine the Windsor Framework.

This is more government by fiat, by ministerial decision.

You may think that is a Good Thing: that our government should be all-powerful between general elections with no or almost no accountability to parliament.

But, if so, do not pretend to others that Brexit was ever about giving power back to the Westminster parliament.

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The prehistory of referendums in the United Kingdom – this week’s Substack essay on legal history

11th March 2023

Over at my Substack, this week’s essay on legal history for paying subscribers is on the prehistory of referendums in the United Kingdom.

The essay begins as follows:

For Philip Larkin a certain kind of intercourse began in 1963 – between the Lady Chatterley obscenity trial and the Beatles’ first LP.

Similarly referendums can appear to have started, at least in the United Kingdom ten years later in 1973 – not long after the Oz obscenity trial and the Beatles’ last LP.

For 1973 was the year of the border poll in Northern Ireland, which is usually considered to be the first referendum in the United Kingdom; and 1973 is also the year that the United Kingdom joined the European Economic Community (EEC), the membership of which was then to be subjected to a referendum in 1975.

For many of us in 2023, fifty years later, the most notable referendum was the one in 2016 on whether the United Kingdom should depart the successor to the EEC, the European Union.

Others are preoccupied with other referendums. Some are seeking a further Scottish independence referendum, to reverse the result of the result of the 2014 vote. And there is also the real prospect of a further border poll in Northern Ireland which may, in turn, lead to Irish unification.

Our recent politics are dominated by one referendum in particular, and the future of the United Kingdom itself may depend on two referendums yet to come.

And this is in addition to the referendums which led to the current devolved settlements in Scotland, Wales and Northern Ireland, all of which are now fundamental parts of our constitutional order.

But there was once a time before any of these referendums had been mooted or taken place or were even contemplated.

A time when 1973, and what then followed, was decades in the future.

And so this essay tells the story of the early history of referendum issue in the constitutional and political affairs of the United Kingdom.

You can read the rest of the essay here.

These essays are on topics to do with legal history and legal lore – and they are in addition to my free-to-read topical law and policy commentary here and at Substack every weekday.

Other essays include:

The lore of Lady Justice.

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign.

The 1712 case of Jane Wenham and the last of the English witch trials.

Taff Vale (1901) – perhaps the most important case in trade union history.

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness.

Malone (1979) – perhaps the most significant constitutional case of the last 50 years.

How the courts improvised legal solutions in the hard case of George Blake between 1990 and 2000.

When William Rees-Mogg and James Goldsmith in 1993 asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty

If you are not yet a paying Substack subscriber, please consider becoming one.

The subscriptions help support my daily free-to-read law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

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When William Rees-Mogg and James Goldsmith asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty – this week’s Substack essay

2nd March 2023

Over at Substack, the essay for paying subscribers is on the 1993 case brought by William Rees-Mogg and James Goldsmith against the Maastricht Treaty.

You can read it here.

For the reasons set out in the essay, it is fair to see the case as one of the origins of Brexit.

The essay begins as follows:

The case was described by the party who brought it as “the most important constitutional case for 300 years”.

This was the application for judicial review brought by the life peer William Rees-Mogg in July 1993, where he sought a High Court declaration that the legislation giving effect to the Maastricht Treaty was unlawful. Lord Rees-Mogg wanted the courts to tell parliament that a Bill, which was then about to become an Act of Parliament, was invalid. It was to be a strike at the very principle of parliamentary sovereignty.

His lead barrister for this ambitious claim was a recently appointed QC called David Pannick, and the high costs of the claim was financed by James Goldsmith (a year before he founded the Referendum Party).

The legal claim so concerned the John Major government that, in addition to instructing the then Treasury Devil (the government’s usual barrister for such cases) it also instructed one of the most brilliant barristers of the day (and still, happily, our day), Sydney Kentridge.

The stated grounds for the application also so alarmed the then Speaker of the House of Commons Betty Boothroyd to take it upon herself to warn from the speaker’s chair of the House of Commons “that the Bill of Rights will be required to be fully respected by all those appearing before the Court”.

The timing of the case was significant. When the claim was brought the Bill giving domestic effect to the Maastricht treaty was still before parliament, though it received royal assent before the hearing could take place.

The Maastricht Treaty had been signed in February 1992, but there was a sense that it was not inevitable that it would actually take effect.

The Danes had rejected the treaty by referendum in June 1992, before approving it in a further referendum in May 1993, and the French referendum of September 1992 had approved the treaty with only a narrow 51% majority. Also in September 1992 the United Kingdom’s currency had been ejected from the exchange rate mechanism on “Black Wednesday”. The European Union project was not seen by its opponents as inescapable. Not only was the Maastricht treaty contested, it was seen as capable of defeat.

Domestically the government had had problems getting the Bill through the House of Lords (including defeating Lord Blake’s amendment for a referendum) and had suffered a number of rebellions in the House of Commons.

And when the Bill received royal assent on 20 July 1993 but there was still what then Prime Minister John Major called a “ticking time bomb” of a later vote on the Social Protocol which would mean the treaty could not be regarded as ratified. Major was to win that vote only by making it a vote of confidence.

This was all very exciting at the time, and a great deal of the above – spirited public law claims led by Pannick, judges being brought into political matters, calls for referendums, close commons votes – seems rather familiar at our own time of Brexit. The case is well worth looking back on thirty years later.

And so this is the story of R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg.

Those of you kind enough to be paying Substack subscribers can read it here – and if you are not yet a paying Substack subscriber, please consider becoming one. The subscriptions help support my daily law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

Last week’s essay was on how the courts improvised legal solutions in the hard case of George Blake.

The week before the essay was on the lore of Lady Justice, here.

And the week before that it was on the case of Jane Wenham and the last of the English witch trials.

Other essays include (in chronological order of the subject):

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign

Taff Vale (1901) – perhaps the most important case in trade union history

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness

Malone (1979) – perhaps the most significant constitutional case of the last 50 years

These essays are on topics to do with legal history and legal lore – and they are in addition to my topical law and policy commentary here every weekday.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Brexit Fatigue – and the possible end of “Brexitism”

1st March 2023

Over at the Guardian, the perceptive commentator Rafael Behr contends that although Brexit will be never-ending, this week may have seen the end of “Brexitism”:

“Brexit, in its most ideological conception, is a zero-sum game in which the European Commission is only happy if Britain has been diddled out of sovereignty.

“That attitude still prevails among many Tory MPs but it competes with fatigue and an instinct for electoral self-preservation.

“There is no appetite among voters for the re-enactment of Brexit wars, especially when the terrain of battle is so small – a scrap of European court jurisdiction under a mound of procedural safeguards in Northern Ireland. […]

“Brexit as management of a relationship is, by definition, never done. But Brexitism as the doctrine of national renaissance through conflict with Brussels is dying.”

If so, good.

Good, good, brilliant, wonderful, superlatively superlative.

What this blog has long wanted is for our post-Brexit relationship with the European Union to become a question of practical politics.

I had hoped that this would be when the mandate of the referendum was discharged on our actual departure. That was far too optimistic.

And as recently as this January I have written (perhaps with more hope than experience) that there was evidence that we were moving into post-Brexit politics:Two weeks ago I did a post, with my tongue-slightly-in-cheek, about what would happen if the Northern Irish protocol issue was resolved (at least in the short- to medium-term):

All this is not only good, it means we can maybe start some interesting new conversations about how we should shape our relationship with the European Union.

All this said, it is important that we do not get carried away, with this euphoria.

Yes, it is cathartic – especially to see certain hardliners silenced.

But certain fundamental problems are still there, and we are just one flashpoint away from another political row.

In the meantime, let us take this, as a good moment.

There are now potentially fascinating and wide-ranging discussions ahead as we work out what our long-term relationship is with the European Union.

Brace, brace – in a nicer way.

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