Category: Brexit

Is the “Stormont Brake” an instrument or an ornament? And does it matter?

28th February 2023

Here I will pose the question whether the proposed “Stormont Brake” is an instrument or an ornament.

In other words: is the brake something which can actually be used – and be useful – in practice?

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Here are some preliminary views, based on my first reading of the extensive documentation published yesterday for the “Windsor Framework”.

There is no doubt that, in theory, the brake is a very powerful instrument.

If the brake is applied then specific new European Union legislation will not apply in Northern Ireland, notwithstanding the Northern Irish Protocol agreed in 2020.

But.

Even in describing this (potential) potency you will see limitations.

The brake will only apply to new European Union legislation, not existing legislation.

There will be only a short period to challenge the legislation.

And the brake does nothing about the jurisdiction of the European Union courts in interpreting the law of the European Union when it applies in Northern Ireland.

So even taking the brake at its most powerful, its effect will be limited.

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And there is another but.

The small-print of the documents published yesterday show that the conditions and process for the brake are such that, in practice, it will be difficult-to-impossible to apply.

The documents expressly describe it as an “emergency” brake.

For it to be used, the Northern Irish executive needs to be be in place and functioning.

There would then need to be thirty members of the Northern Irish legislative assembly, from more than one party, who are concerned about the proposed measure.

But mere expressions of concern will not be enough.

The MLAs will need to show:

(A) “most exceptional circumstances and as a last resort, having used every other available mechanism” and
(B) a significant impact specific to “the everyday life of communities in Northern Ireland in a way that is liable to persist”.
And if you read that last requirement carefully you will see that it is comprised of three component conditions:
(i) scope – “everyday life of communities” (and note the deft plural);
(ii) significance of impact; and
(iii) duration – “in a way that is liable to persist”.
The MLAs also need to show (C) that they have consulted businesses and civic society, as well as (D) they have participated in any prior consultation exercises for the measure.
Once this step has been accomplished, the government of United Kingdom in turn has to show the European Union (E) why it considers the EU legislation is different from what went before, and – as above (B) again –  that the United Kingdom itself considers that it “would have a significant impact specific to everyday life of communities in Northern Ireland in a way that is liable to persist”.
All of these conditions are defined, and presumably if the United Kingdom cannot show the conditions have been met then the Stormont Brake cannot be applied.
(I am still trying to work out how any dispute in any of this will be resolved.)
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There is a see-saw problem as well.
If a thing is too difficult to be used then it will tend not to be used.
One reason the safeguard provisions under the existing protocol have not been fully used is that the sheer number of conditions and requirements that need to be ticked-off before they can be activated.
As such the provision has become an ornament rather than an instrument.
The same problem may be there with the Stormont Brake.
It may become an ornament, for it will be so difficult to use in practice.
Perhaps that is the intention: it will just be there for reassurance that such a button can be pressed.
But the same was said of the then-new Article 50, after the Lisbon treaty.
It is never safe to assume that an ornamental provision will never be used, and so it always should be capable of working for the intended purpose.
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I am not a supporter of the ERG or the DUP – I support a united Ireland and for the rest of the United Kingdom being part of the single market.
As such, I think the Windsor Framework is a welcome step.
But if I were a supporter of the ERG or the DUP I would not be satisfied by the Stormont Brake – at least with all its current conditions.
Else there will just be another bout of political tension as and when, like the Article 16 safeguards, the Stormont Brake is not seen as a ready remedy.
And we will have to negotiate a new framework and find a new symbolic place to name it after.
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Perhaps the brake does not matter.
Perhaps it is all politics.
Perhaps those involved just want cover for bringing this row to an end, and the Windsor Framework contains a raft of other practical measures to address practical problems.
And as someone observed on Twitter, it is somewhat fitting that a symbolic problem has a symbolic solution.
https://twitter.com/mathof1/status/1630510607647514624
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But if it ever does matter, then the brake must be capable of working.
It cannot just be an ornament.
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The Windsor Not or a Windsor Knot?

27th February 2023

While we wait for the legal text of the new agreement between the United Kingdom and the European Union to be published, this is just a quick post about the optics.

It has been a long-standing joke that to get some European thing past government supporters and the popular media, all that would need to be done is to call it something like the “Winston Churchill Protocol”.

Calling this agreement the “Windsor Framework” – and getting the royal imprint – is a choreographically deft move.

But form, of course, is not substance, and the text – when it is published – will require hard scrutiny.

This is especially the case of the supposed “brake” which may or may not be really that different from the current dispute resolution procedures.

Here it is interesting that they have chosen the word “brake” – which is not a legal term of art – instead of, say, veto.

(Perhaps they thought they could make it sound like a “break clause” – which is a thing for property lawyers.)

Anyway, let us see.

But, for now, the politics is encouraging and refreshingly grown-up.

Even if this turns out to be more of a Windsor Not than a Windsor Knot.

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Beyond the bare “necessity” – the government’s supposed justification under international law for the Northern Irish Protocol Bill falls away

23rd February 2023

You may recall that the government of the United Kingdom, when it published the Northern Irish Protocol Bill also published a “legal position” in support of the Bill.

The purpose of that “legal position” was to provide a response to those troublesome sorts inside and outside the government who wanted to know if the proposals in the Bill would breach international law.

You may also recall that somehow it became known that the government’s external legal adviser – pleasingly known as the “Treasury Devil” – was not altogether comfortable with this legal position.

This all very exciting at the time – though like many things in our relentless post-Brexit politics, it now seems a long time ago.

The offered justification was the doctrine of legal “necessity”.

My post on this was “The bare “necessity” – how the legal position of the United Kingdom on the Northern Irish Protocol Bill makes no sense”.

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As far as can be worked out, this remains the government’s sole justification under international law for the proposals.

This in turn means that if this justification falls away, there will be no basis for the proposals in international law.

The Bill’s key provision which would enable the United Kingdom to breach the Northern Irish Protocol would be a breach of international law.

You may not care that is the the case – and you may just shrug or even go “hurrah”.

But that nonchalant or merry response does not take away from the breach of international law, and that is what the government wanted to pretend was not going to happen.

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The government now has a problem.

The Northern Ireland Bill’s lack of parliamentary progress evidences, if not demonstrates, a lack of urgency by the government.

Even the Bill’s supporters talk of it only as an option, to be used “if required”.

But something which is not urgent and optional cannot at the same time meet the international law test of necessity.

By their own (lack of) conduct the government has undermined the only argument they (said they) had.

And this is not just the view of a liberal legal blogger, but also that of a former Lord Chancellor and member of the cabinet during during Brexit, Robert Buckland:

Buckland avers in the magazine of the House of Commons itself:

“The Northern Ireland Protocol Bill has outlived its political usefulness and no longer has any legal justification. It is the proverbial dead letter.”

One may question if it ever really had any legal justification.

But even taking the government’s position at its highest, that purported justification has now gone.

What was a bare “necessity” argument is now just, well, bare.

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The seven ways the matter of Brexit and the island of Ireland can be ultimately resolved

21st February 2023

A few days ago I tweeted that there were only two ways the matter of Brexit and the island of Ireland can be ultimately resolved.

But that was wrong, there are seven.

By “ultimately resolved” I do not mean any of the work-arounds and quick-fixes being currently negotiated or proposed.

I mean instead that there is a situation where such work-arounds and quick-fixes are not needed, and that there is a settled and sustainable situation that means Brexit is not a problem.

These are the seven ways.

One: the European Union and/or the Single Market ceasing to exist.

This is highly unlikely.

Two: Ireland leaving the European Union and/or the Single Market.

This is also highly unlikely.

Three: the United Kingdom rejoining the European Union.

This is unlikely at least for a political generation – and it would require the European Union wanting the United Kingdom back, which given our ongoing political psycho-drama is difficult to envisage.

Four: Northern Ireland not sharing a Single Market with Ireland.

This is unlikely, as it would mean a trading border, and perhaps even border infrastructure, on the island of Ireland.  Some would say that such invisible and visible borders would be a breach of the spirit, if not the words, of the Good Friday Agreement.

Five: the United Kingdom as a whole sharing in the Single Market, even if formally outside the European Union.

This was the preference of some “liberal” Brexiters and it was also pretty much the (infamous) “backstop” position of the withdrawal agreement negotiated by Theresa May, the last-but-two of our recent prime ministers.  That agreement was voted down by Parliament and led to a change of Prime Minister.

Six: Northern Ireland sharing a Single Market with Ireland, but not the rest of the United Kingdom.

This is the current position under the Northern Irish Protocol, negotiated and promoted as an “oven-ready” agreement by Boris Johnson, the last-but-one of our recent prime ministers: the trade border down the Irish Sea.  This is not acceptable to the Democratic Unionist party and some government backbenchers.

Seven: a united Ireland.

This would at, a stroke, resolve the matter of Brexit and the island of Ireland.

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Given the first two options are literally incredible, the third is unlikely in the short-to-medium term, and the fourth is politically impossible, that leaves the final three.  As the fifth and sixth do not have settled political support, that leaves only the seventh.

In my tweet I thought the third and the seventh are now the only real options of resolving ultimately the matter of Brexit and the island of Ireland.

The others were unlikely-to-impossible or politically unacceptable.

Many of you will prefer the United Kingdom to re-join the European Union, or at least the Single Market; and my own first preference is for a united Ireland, with participation in the Single Market for Great Britain by means of a close association agreement.

But whatever your preference, the ultimate resolution has to be one of these seven.

And until and unless one is accepted, there will be an ongoing problem in the matter of Brexit and the island of Ireland.

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Imagine what would happen if – if – the Northern Irish Protocol issue is resolved

16th February 2023

The news is promising:

So let us think what would happen if – and it is an if – the Northern Irish Protocol issue is ever resolved.

(And some of you will doubt it ever will be.)

As it stands the focus of the post-Brexit relationship is Northern Ireland and the protocol.

The government of the United Kingdom is seeking to be able to break international law for the sake of doing something about the protocol.

The government is also telling its political and media supporters that it will withdraw from the European Convention on Human Rights as a distraction, it seems, from any compromise on the protocol.

Everything in UK-EU relations – at least on the United Kingdom side – appears to be governed by the protocol.

So imagine: what if that issue was no longer there?

What then?

The cynical will think that there would have to be a new issue for the governing party to rally support of Brexiters: that a new dispute with the European Union will be raise, even contrived, and off we will go again.

Maybe.

But there would also be the possibility of the pragmatists and realists to guide policy and move on to what needs to happen next: a sustainable basis for a close UK-EU relationship.

The preference of this blog (ever since the referendum result) has been for the United Kingdom to leave the European Union and to move quickly into the closest possible association agreement, with as much participation in the single market as the European Union will allow us and which the United Kingdom government can also get past its supporters.

Negotiations for such an ideal arrangement should ideally have started by now, and discussions need to start by the time the periodic review of the relationship begins under the withdrawal agreements.

A deal on the Northern Irish Protocol will enable this grown-up and sensible discussion to (finally) take place.

Ho, ho.

Of course, this side of a general election there is little prospect of the government openly seeking a closer relationship with the European Union.

But such a close relationship would necessarily require the Northern Irish Protocol to be practically settled first.

(By “practically settle” I mean that the tensions and frictions occasioned by the protocol have viable work-around solutions – for, as this blog has averred before, the ultimate issue of there being a post-Brexit trading border on the island of Ireland can only be solved by Irish unification – or by the United Kingdom rejoining the European Union.)

And there would then need to be a period where the United Kingdom approach to policy is – frankly – less crazy than seeking to break international law as leverage so as to get its way in a dispute.

United Kingdom policy and politics on Brexit would need to calm down for a while.

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Any deal in the coming weeks on the protocol between the United Kingdom and the European Union will also need to survive attacks from the Democratic Unionist Party and some of the government’s own backbenchers.

These attacks may delay the issue being practically resolved – but these attacks may be time limited in their potency.

But until such attacks do become politically impotent, it may be that practical resolution of the Northern Irish Protocol issue will happen, but not just yet.

We will have to wait.

(In the longer term, of course, the issue of there being a trading border on the island of Ireland probably will be resolved by Irish unification.)

And if the Northern Irish Protocol issue is practically resolved then we perhaps can have fresh and interesting conversations about our post-Brexit relationship with the European Union.

Gosh.

Imagine that.

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Will there be a deal on the Northern Irish Protocol? And what then?

14th February 2023

The negotiations for the final shape of Brexit continue, even though the United Kingdom departed the European Union three years ago.

Of course: it would have been more sensible to have concluded these negotiations before the United Kingdom departed (as some of us pointed out at the time), but both the United Kingdom and the European Union wanted to press on and get the formal departure over with as soon as possible.

But the price of that speed has been a lack of finality.

The current news reports indicate that a deal may be on the offing about the dispute over the Northern Irish Protocol.

You may recall that this dispute was once so urgent that the United Kingdom government, with a straight face if not a straight bat, maintained last year that its envisaged domestic legislation that would enable the United Kingdom to breach the protocol even met the test of “necessity” under international law.

That was balderdash, as anyone sensible at the time knew – and it is no surprise that the enabling legislation has been frozen.

The one sticking point appears to be something that is both fundamental and trivial: the role of the European Court of Justice.

Fundamental because, to the extent that the laws of the European Union apply in respect of Northern Ireland being inside the single market, the European Union understandably want those laws to be interpreted in accordance with the European Union treaties and consistently across the single market.

And the only entity that can ensure such authoritative and consistent interpretations is the European Court of Justice, for that is what that court does.

But for Brexiters this smacks of the European Court of Justice having jurisdiction in Northern Ireland, which it should not have, because of Brexit.

And it is also trivial, because few other than obsessives care and in practice it would not make much difference.

Given all this, there will be some fancy choreography and packaging.

What will probably happen is that the substance of European Union laws being applied in accordance with the European Court of Justice’s jurisprudence will be maintained, but it will somehow look as if this is not the case.

The reason for such a compromise is that Brexit and completely open trade borders on the island of Ireland are not ultimately compatible – they never have been, and never will be.

And this predicament of the Irish border – although obvious – was not thought through by those who clamoured for Brexit.

Other problems may be addressed – if not resolved – by the establishment of “lanes” and the use of technical “real time” data.

However, getting the two sides to a sort-of-agreement is one thing, getting the endorsement of the United Kingdom parliament is another.

And unless the deal can be framed as a great British victory (and Brexiters swallow this) then either the deal will not pass parliament or the passage of the deal relies on opposition support and thereby breaks (further) the governing party.

No wonder the Prime Minister’s circle are making noises about quitting the European Convention on Human Rights and persisting with its daft legislation on repealing retained European Union law.

The Prime Minister needs all the distractions he can muster, as getting this deal past his own backbenchers is not going to be easy.

And we may even end up – as with 2017 and 2019 – with the run-up to a general election being dominated by parliamentary splits and rebellions over the question of Brexit.

Brace brace.

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Here is evidence that we are moving – at last – into post-Brexit politics and policy-making

23rd January 2023

Last week there was a (very popular) post on this blog about regulation and the supposed “bonfires” of “red tape”.

Most of the points in that post were general, but a particular point was made about the misconceived Retained EU Law (Revocation and Reform) Bill.

That Bill contains this remarkable provision as clause 1:

In other words, laws – thousands of them – will all be repealed by automatic operation of law, unless specific exceptions are made.

And nobody knows how many:

Rarely has there been an approach to legislation this daft, and it is hard to think of any legislative exercise where daftness has been on this scale.

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Of course, this causes confusion, including to business.

One may think businesses would welcome such drastic deregulation – but, in fact, businesses are far more welcoming to consistency.

In his speech today, the director general of the Confederation of British Industry addressed the problems of this Bill.

First, he did not dismiss regulatory divergence in principle:

“…I must say something about the UK’s regulatory divergence from Europe. The Government is convinced this is a major opportunity for growth. And I agree it can be too.

“But it’s a bit more complicated, than scrapping overnight many of the terms of trade we’ve used for decades.”

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So this means he is not opposed outright to what the government calls “Brexit opportunities”.

But it has to be done in a measured, case-by-case approach, and with hard realism:

“Because divergence is high-stake politics and economics.

“Often, we don’t consider the EU’s possible counterplay, and where they could outcompete us. We also need to recognise that divergence will often shrink our market size and/or add a skip-load of red tape. The party of deregulation risks simply doubling the amount we have.

“So, while it can definitely work – witness the historic success of the City of London and our rapid Covid vaccine approval – you have to run the numbers to make sure it’s not a complete own-goal.

“And it will take far more than a regulation play to make the UK win global share of global sectors.”

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He then mentioned concrete examples:

“…the Retained EU Law Bill [is] creating huge uncertainty for UK firms.

“Companies are asking will we really erode maternity and paternity regulation or health and safety standards like the General Product Safety Directive?

“Or rapidly change regulations on REACH, which governs the use of chemicals? With billions of pounds of industry costs?

“Or create the potential for firms being underinsured because it’s harder for analysts – who don’t know what laws will be retained – to effectively price risk into products?

“Do we really want to subject the public – and industry – to another round of mass confusion and disruption, just when we’re trying to exit recession?”

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The speech, however, did more than offer a critique, it also offered a contrast.

It referred to a development which I (and perhaps also you) missed just before Christmas: the appointment of Patrick Vallance and others to consider post-Brexit regulation in five particular areas – digital technology, green industries, life sciences, advanced manufacturing and the creative industries.

The speech avers:

“The Chancellor has appointed Sir Patrick Vallance to lead a thorough review into securing possible prizes in five high-growth sectors. This is the right approach. Serious reflection and consideration.

“The complete opposite in fact of the Retained EU Law Bill […]

“Instead, let’s review, retain, reform and – where appropriate – repeal EU law the Vallance way. Smartly. Not the Retained EU Law Bill’s way. Foolishly.”

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This must be the correct approach in principle: “the Vallance way”.

Yes, the Vallance review may come to nothing.

Indeed, it may never be heard from again: such reviews come and go, and sometimes even disappear with anyone noticing, or caring.

But as a statement of principle, this approach is compelling.

And it shows that even this government is capable of going about legislative and regulatory reform the right way.

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The CBI cannot be regarded as a vehicle for remoaners.

And the speech today was not expressly or implicitly a call for the United Kingdom to rejoin the European Union – or even just the single market.

It was instead refreshingly post-Brexit – about how we go about making policy and laws within our shifted post-Brexit parameters.

The more our politics and policy-making moves in this direction, the better.

The absolutist clamour of Brexiters and the purist refusal of Remainers are both, in their ways, failures to practically deal with our post-Brexit situation.

The Retained EU Law (Revocation and Reform) Bill is now as much an artefact from yesteryear as a leaflet calling for a further referendum.

We are at last moving, slowly, into post-Brexit politics and policy-making – and the government needs to catch up.

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Rejoiners should brace themselves for the United Kingdom to spend a long time outside the European Union

3rd January 2022

First of all, may I wish all of you that follow this blog a happy new year, even if I post things which irk you.

I do not write things just so as to provoke (and indeed much prefer for people to agree with me) but I do try to get things right, and sometimes what I think is right will be what some of you will think is very wrong.

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Second, as you may know I have started a Substack.

For now, every post published on this blog will also be crossposted on the Substack, and nothing will visibly change with what is on this blog.

But I will also be providing additional content at Substack – an essay every Friday on some aspect of legal history or the relationship between law, lore and popular culture – for paid subscribers.

(That essay will also be sent free to Patreon subscribers, and I will also make the post available for free for those who have donated to this blog through Paypal.)

The paid-for subscriptions will enable me to justify more time spent on commentary here, on Mastodon, and for my Substack essays, as all that commentary involves a considerable opportunity cost.

To subscribe to my Substack, click here.

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And now: Brexit.

Fifty years ago, on 1 January 1973, the United Kingdom, Ireland and Denmark joined the so-called European Communities, of which the European Economic Community was the most significant.

(This EEC, in turn, became the European Union on 1 November 1993.)

Thirty years ago, on 1 January 1993, the so-called Single Market was (nominally) completed.

(Indeed, for those at the time “1992” was itself a political totem, and as much a bandied a shorthand as “Brexit”.)

Both dates were momentous for the United Kingdom – especially the latter, as the Single Market in the form it took was very much a triumph for the United Kingdom government, and the architect of the Single Market in that form was a British Conservative politician, Lord Cockfield.

But.

The day was left largely unremarked, even by pundits.

Even the fact that 1 January 2023 was the second anniversary of the United Kingdom effectively leaving the European Union, after the transition period, was largely left unremarked by Brexit supporters.

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And now the news reports there are calls for the United Kingdom to re-join the European Union.

Remainers – now Rejoiners – excitedly share links to opinion polls showing majorities in favour of this and majorities against that.

This is in contrast to Brexiters not being to point to a great deal, if anything, to show that the departure from the United Kingdom has so far been a success.

But.

Re-joining is unlikely to happen, at least for some time.

And this is because there are two things which need to happen before the United Kingdom can even be considered as a restored member of the European Union.

The first is that the politics of the United Kingdom needs to settle down, and for there to be consistent and substantial majority of both voters and politicians in support of rejoining.

There is no clear sign of this happening, despite the wishful thinking of many.

The current governing party is in favour of Brexit, and the current opposition party (and likely next government) is not opposed to Brexit.

There is no visible shift in either party, and there is no reason to expect one.

Indeed there is a sizeable wing of the current governing party – and a body of voters – as energetically committed to Brexit as ever.

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And, even if there were a consistent and substantial majority of voters and politicians in support of rejoining, that would not be enough.

For, it would take the European Union – as a whole – to agree.

Believing that the United Kingdom can simply re-join just because we would want to do so is, I am afraid, just another form of British exceptionalism.

And if you were politicians in the European Union, looking at the ongoing political psychodrama of the current governing party over Brexit – and the dogged reluctance of the main opposition party to address the problems of Brexit – would you want the United Kingdom to rejoin?

Really?

Of course not.

There would be a non-trivial chance that there would be a Brexit all over again.

(For more on the practical difficulties of rejoining, see this useful piece by John Cotter.)

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The most difficult step – perhaps even harder than to get Brexiters to admit their Brexit was a mistake – is for Remainers to accept the United Kingdom is out of the European Union for at least a political generation.

What needs to be done is for practical politics to move to a post-Brexit consensus, where our politicians seek to place the United Kingdom in a sustainable and close (but outside) relationship with the European Union.

And to get the United Kingdom to be as much a part of the Single Market as possible, even if the nomenclature has to be politely different.

But – for both “sides” – this is not likely to happen.

Brexiters will see this as betrayal, and Remainers will see this as imperfect, and so both sides will resist it.

(Just as both Brexiters and Remainers voted down the Theresa May departure deal.)

So we will remain in this post-Brexit limbo.

And we can celebrate the anniversary of this limbo, well, every 1 January.

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The loss of the practical approach to UK-EU relations

12th December 2022

Thinking and writing about Brexit (and, yes, the book is still going) has made me realise that it is less about “Remain” losing and “Leave” winning, but more about the loss – or absence – of something else.

What that missing something is not the “middle” – for that suggests that it is merely a compromise between two extremes.

It was a particular approach to dealing with and understanding the European Union and its predecessor Community.

The approach can be seen in the works of the late economic historian Alan Milward.

See this from an obituary:

“Rejecting both past and present myths about the EU he argued that, far from being a federal project to transcend the nation state, it was (and is) a complex instrument aimed at maintaining the viability of nation states in Europe… 

…his approach calls into question the ‘founding myths’ of European unity associated with the names of Jean Monnet and Robert Schuman, while convincingly demolishing one of the long-standing clichés of anti-EU rhetoric in the UK, namely that the EU is a unifying federal project….

…here is what Alan considered a lazy cliché, though it is still widely held in some British political circles: that the EU was the result of an aggrandising federal strategy promoted by such figures as Schuman and Monnet, and reflecting a Franco-German accord aimed at domination by erasing national states. Alan pointed out that all these rather abstract approaches failed to account for the dynamics of the EU, and instead he conducted a detailed examination of the strategies and negotiations that had led to expansion…

….The ‘Eurosceptic’ nightmare of an encroaching federal project was in Alan’s view a serious misrepresentation of the record.

But if Alan Milward was uncomfortable reading for Eurosceptics he was no easier for Europhiles.”

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Milward, tongue-in-cheek, even entitled a chapter in a book as follows:

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Milward’s general approach was not an extreme view – indeed Milward was one of the official historians of the United Kingdom’s relationship with the European Communities.

It is also a view I associate with the primary architect of the form which the Single Market finally took, Arthur Cockfield.

Appointed to the European Commission by then prime minister Margaret Thatcher, Cockfield is in my mind the most significant Conservative politician of the 1980s, after the prime minister who appointed him.

As I once said on this blog, Lord Cockfield pushed forward the Single Market in a practical and sustainable way, rather than through grand design and heady rhetoric.

My January 2017 FT piece on Lord Cockfield is here.

In that I said about how he approached the Single Market:

“In 1985, Cockfield (with the full support of the then commission president Jacques Delors) produced his famous white paper in a matter of weeks, and so sound and thought-through was its content that it was used as a blueprint thereafter.”

Cockfield looked at what worked, and what would work, at a national level, and then moved on practically from there.

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The European Communities and then the European Union were not necessarily a grand federalist project, as wanted by some of its founders and as feared by its opponents.

It was (and still is) “supranational” – and so beneath the cloak of heady rhetoric, it was the means by which national interests could be and were promoted and reconciled.

For the United Kingdom, our membership record was in part rebates and opt-outs, so effective were we in promoting our (perceived) national interests.

And our policy on European integration was about putting aside the absolute positions of both sides and, well, just practically getting on with what worked for the United Kingdom.

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But.

By 2015-16, this sensible pragmatism was no longer in the political ascendency in the United Kingdom.

Which is odd, in a way, as the failure of the grandiosely titled “Constitutional Treaty” was ten years or so in the past (though many of its provisions were added by amendment to the existing Rome and Maastricht treaties), and there were no new major treaties in the offing.

It is this absence of a thing – rather than the presence of “Remain” and “Leave” – which is, in my view, a key to understanding Brexit.

And it is harder to explain something not being there than it is to explain what was there in 2015-16, and thereafter.

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“Is there any point to which you would wish to draw my attention?”

“To the curious incident of the dog in the night-time.”

“The dog did nothing in the night-time.”

“That was the curious incident,” remarked Sherlock Holmes.

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***

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How three Bills now before Parliament tell us the story of Brexit

7th December 2022

Here is a story about three Bills.

The Bills are not chaps called William, but legislative proposals placed before the Westminster parliament by the government of the United Kingdom.

Taken individually – and especially taken together – these three Bills tell a tale.

They tell the story of Brexit.

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The first Bill is the Northern Ireland Protocol Bill.

This is a proposal that would enable the government of the United Kingdom to break the exit agreement it signed with the European Union.

This agreement was signed in a rush, so as to “get Brexit done”.

This was the agreement which, if you recall, was promoted by the-then prime minister Boris Johnson as an “oven-ready deal”.

And this was the agreement which sought to square the rushed Brexit with no commercial border in the island of Ireland.

(An alternative way of addressing the same problem, with the “backstop”, was rejected when Theresa May was prime minister.)

The current Bill is an attempt to somehow unwind this solemnly agreed position.

Many think this Bill has no good purpose – indeed, many regard the Bill as having no purpose other than to placate some government supporters.

And it certainly is a rum thing for any government to so openly proclaim its lack of good faith in entering international agreements.

The Bill, therefore, tells us about the lack of thought and preparation of the government of the United Kingdom in how it approached Brexit.

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The second Bill is the Retained EU Law (Revocation and Reform) Bill.

The Bill shows us that the government of the United Kingdom, having got Brexit done, does not know what to do with it.

This is the proposed legislation promoted by Jacob Rees-Mogg which would automatically repeal all European Union law still in force.

It does not matter whether that law is useful – or even essential.

It does not matter if the law was negotiated by the United Kingdom and serves to protect certain public interests.

The retained law is going to be repealed automatically anyway.

There is no good reason for this silly Bill.

The only reason it exists is to show that the British government is doing something – anything – with the supposed “Brexit opportunities”.

And as no concrete, discrete opportunities have been identified, it is doing this daft and potentially dangerous thing instead.

This second Bill, therefore, tells us that not only did the government rush through Brexit without proper preparation, but it also has no idea what will follow Brexit.

(In this, this second Bill is akin to the rushed and disadvantageous “international trade agreements” which were also signed so as to show “Brexit opportunities”.)

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The third Bill is the Bill of Rights Bill.

This legislation is not directly about the European Union, but it tells us everything about the need for there to be new “European” courts and laws for the government to attack.

Brexit was simply not enough, and so the next target is the European Convention of Human Rights.

This third Bill shows the need for Tories to have a perpetual war with “Europe” (even if not the European Union) that has been unsatisfied by Brexit.

The Bill itself is not a good piece of legislation, and it has been roasted by judges and Conservative politicians.

It seeks to repeal the Human Rights Act, and to make it as difficult as possible for anyone to rely in domestic courts on their rights under European Convention of Human Rights.

This third Bill, therefore, tells us that Brexit was not really about the European Union, but about trying to satisfy (but failing to satisfy) the endless demand of some government supporters for confrontation and retreat with something European.

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If Brexit was worthwhile, then it would take only one good government Bill to show the benefits of Brexit: for the United Kingdom government to show what it could do with its new autonomy from the European Union.

But there is no such good Bill.

Instead there are these three misconceived and illiberal Bills, each trying to do something pointless or needless.

Each in their way, and when taken together, telling us all we need to know about Brexit: that the exit was rushed and botched, that the exit has provided no practical benefits, and that that the exit will never be enough for many of those who supported it.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.