Why the campaign to ‘rejoin’ the European Union is misconceived – the campaign must make a positive and sustainable case for membership, regardless of Brexit and the past

10th January 2021

For many who were ‘Remainers’ the obvious next step is to become ‘Rejoiners’ with the object of ‘reversing Brexit’.

And in pursuing this object they will understandably point to the many misfortunes and problems that have been – and will be – caused by Brexit.

The hope, if not expectation, seems to be that the sheer accumulation of adverse evidence will mean that a sufficient people will see ‘what we have lost’ and this will lead to political pressure for the United Kingdom to quickly rejoin the European Union.

This approach may work – one lesson from the last five years is just how quickly politics can change, and in any direction.

But.

For the following three reasons, this blog submits that such an approach is misconceived and avers that a different approach should be adopted by those who want the United Kingdom to be a successful applicant for membership of the European Union.

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The first reason is that the emphasis on the ‘re-‘ in ‘rejoining’ – especially if that is based on relying on the adverse consequences of departure – is not a positive case for membership.

There needs to be more than the simple application of the pleasure-pain principle.

One feature of the United Kingdom’s membership of the European Union was that since at least the completion of the single market in 1992 there was never a positive case made for membership in frontline politics.

Instead, the two biggest political parties competed with each other as to which was the one that secured the more opt-outs, whether it be the Euro, the social chapter, free movement of peoples, justice and home affairs, or so on.

The case, if any, for the United Kingdom’s membership of the European Union was that it was ‘less bad’ than any alternative.

This scepticism and often outright hostility was also a feature of much of the news reporting of the same period – and such was the lack of popular understanding of the role and nature of the European Union that it was easily made to blame for things for which it was not responsible.

And after twenty-five or so years of such negativity, it was perhaps more surprising that the 2016 referendum was so close than that the remain side lost.

It was not so much that the leave side won the 2016 referendum that the remain side lost.

This mistake should not be repeated.

The case for European Union should be a positive one – and that means that it should be a case based on the advantages that membership of the European Union will have for the United Kingdom.

What would be the benefits of membership of the European Union, which could not be attained in any other way?

For, as this blog was previously contended, those in favour of membership have a challenge.

Can you, for example, make out the case for the United Kingdom joining the European Union without reference to the fact that the United Kingdom was a member?

If a compelling case cannot be made for the United Kingdom in the here-and-now to become a member of the European Union then it is difficult, if not impossible. to see how sufficient political support can be achieved for a viable application for membership.

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The second reason is the United Kingdom is highly unlikely be able to ‘rejoin’ quickly.

The notion that somehow the European Union will gladly accept a United Kingdom quickly bouncing back and pretending nothing had changed is a fantasy.

Indeed, it is just a new variant form of British (or English) exceptionalism.

The new trade and cooperation agreement is structured for the medium to longer-term.

As I set out in this new Financial Times video, the agreement is a ‘broad…framework’ for discrete supplementary agreements over time, with any more significant shifts (either in the the direction of closeness or otherwise) being on a five-year review cycle.

 

And this accords with the five-year cycle on which the European Union conducts its own business.

We can no longer snap our fingers and demand immediate attention, loudly and in English.

The United Kingdom is now on the outside, looking in.

And as this blog has previously averred, the European Union will understandably want to take time to see if the internal politics of the United Kingdom have settled down in favour of membership of the European Union.

The European Union will not want to let the United Kingdom back in only to have to devote time and effort in dealing with another Brexit, like some geo-political Groundhog Day.

The European Union will also want to see what happens to the United Kingdom itself over the next few years: Irish unification? Scottish (or even Welsh) independence?

What will be the situation of the European Union and of the world in 2026? 2031? 

Therefore there not only needs to be a positive case for United Kingdom membership of the European Union, it has to be a sustainable case too.

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The third reason is that an emphasis on ‘rejoin’ and ‘reversing Brexit’ carries a real risk of campaigners eternally refighting the 2016 referendum.

Like some historical re-enactment society, but for the battle of Brexit rather than the battle of Naseby.

Of course, remainers are right to have grievances about the circumstances of the referendum and the conduct of the campaign(s) for leave.

Remainers also are right to complain about the process (or lack of process) that followed the referendum and which has resulted in the United Kingdom ceasing first to be a member of the European Union and then having the protection of the transition arrangements.

Nothing in this post should be taken to mean that that the politicians who have made serious misjudgments about law and policy should not be held to account – indeed that is one purpose of this blog.

But pointing out problems and failings, either now or back in 2016, is not going to lead to the United Kingdom becoming (again) a member of the European Union.

This is not only because it is difficult to get a sufficient number of voters engaged, and that government supporters and Brexiters are so deft at evasion and misdirection.

It is because there is a fundamental disconnect between problem and solution.

Whether the United Kingdom becomes (again) a member of the European Union in 2026 – or whenever – will not be a logical consequence of redressing the wrongs and of 2016 or even those emerging in 2021.

Membership of the European Union may be a prize, but it will not be a consolation prize.

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The task ahead for those in favour of the United Kingdom (again) becoming a member of the European Union is immense.

A positive case has to be made over time so that the European Union will seriously consider a fresh application.

But that is not an impossible task.

And at least, unlike the supposedly ‘pro-European’ politicians of the last thirty or forty years, this will be a positive case.

One problem with the politics of the United Kingdom in recent decades is that the positive case for membership of the European Union was rarely made.

Now is the opportunity for that to be put right.

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The real origin of the European Union ‘supranationalist’ state – and why it still matters

4th January 2021

There is a view held by many in the United Kingdom that the European Union – and its predecessors – was not always a ‘supranational’ organisation.

That it was not always an entity which routinely transcended national boundaries.

The view is that it was once a mere innocent trading association and an international organisation – and that it was only after the United Kingdom joined in 1973 that it corrupted into a supranational organisation, which took rule-making and decision-making out of the hands of member states.

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Some will know this is not true and will point, say, to the Treaty of Rome of 1957, which established the European Economic Community, with its express determination that the treaty would lay the “foundations of an ever closer union among the peoples of Europe”.

Others will point to the 1960s caselaw of the European Court of Justice, such as the Costa v ENEL judgment of 1964 that made it as plain as a pikestaff (the lawyers’ equivalent of ‘absolutely clear’) that the domestic law of a member state was subordinate to the provisions of both the Treaty of Rome and the legal instruments made thereunder.

The United Kingdom thereby knew exactly what it was joining in 1973, and only a fool or knave could (and did) pretend otherwise.

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Yet the supranational essence of what the United Kingdom joined in 1973 was older than the Costa case of 1964, and was even older than the Treaty of Rome of 1957.

Here it is important that the United Kingdom did not just join the European Economic Community in 1973 but also another community, the deceptively unglamorous-sounding, and older, European Coal and Steel Community (ECSC) of 1952.

For some, the historical fact that the United Kingdom joined more than one community in 1973 is nothing more than an answer to a quiz question, or the reason why the European Communities Act 1973 employs the plural form of community.

But it was a lot more significant than that.

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To understand why, we have to go back to the years after the second world war and the problem of what should be done about Germany – in particular, the industrial areas of Rhineland and Saarland.

In 1944 the plan was to eliminate much of this industrial capacity; and in 1946 another plan was to give France control.

But by the late 1940s neither of these strident approaches seemed sustainable, especially in view of the need to not de-stabilise (what was then) West Germany, and so another approach was needed.

In 1950, a suggestion was made that there be a ‘high authority’ be put in place, overseeing French and German coal and steel production.

And by 1951 – with the Treaty of Paris – this idea had developed into an array of supervisory institutions – not only a high authority, but also an assembly, a council of ministers and – significantly – a dedicated court, with these further institutions balancing the executive power of the high authority.

The high authority furthermore had the power to issue decisions and recommendations binding the signatories – France, West Germany, Italy and the three Benelux countries (who were already heading towards economic unity).

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So we have in 1952 the establishment of the ECSC – with a supranational group of institutions in place and with the power to make law and adjudicate disputes, ensuring adherence to shared treaty obligations.

And the key element of this arrangement was not that it was aspirational – notwithstanding the heady language of integration that accompanied it – but that it was a solidly, deeply practical solution to a problem – of what should be done in respect of the post-war industrial relationship of France and Germany.

Just as, say the Good Friday Agreement used an imaginative cross-border approach to a thorny cross-border problem, so did the Treaty of Paris.

What the Spaak Report of 1956 and the Treaty of Rome of 1957 then did was to employ this supranational approach (with shared institutions and shared law-making) on wider economic questions, as it was seen as an approach that would work.

So when the United Kingdom joined the communities in 1973, the fact that it was joining a practical supranational enterprise had been – well – as plain as a pikestaff for over twenty years.

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What makes this ‘pre-history’ significant is that it is often the view of critics of the European Union that its supranational nature is somehow airy-fairy – that it is impractical and unrealistic.

And this is seen as a contrast to rugged Anglo-Saxon empiricism and practical common sense.

The reality is that the European Union, as with its predecessor organisations the European Economic Community and ECSC, regards its supranational nature as eminently practical, as was as embodying certain ideals of European unity.

That it works.

Supranationalism is thereby an approach which has worked since 1952 – and not just somehow inflicted by surprise on the united Kingdom after 1973.

It is not as if the debate is between an unrealistic pro-European Union camp and a realistic band of critics.

The problem that the United Kingdom had for a long time when a member of the European Union is that it rarely wanted to work within a supranational organisation.

Supranationalism was, it seemed, for other people.

The United Kingdom regarded supranationalism as a bug of the European Union, and not as a feature.

So the United Kingdom sought – and obtained – opt-out after opt-out, until 2015-16 when it sought a ‘re-negotiation’ only to find the European Union could and would shift no further.

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The supranationalism of the European Union is seventy years old.

The United Kingdom in its modern form as a collection of four nation states has only existed since 1922 – and so is a mere thirty years older than the first of the European communities. 

As this blog has previously averred, political unions come and go – and no political union can be seen as eternal.

And given that the supranationalism of the European Union is regarded as practical as well as an ideal, there is no inherent reason why the European Union will not last longer than the United Kingdom as a union of nation states.

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The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.

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Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 

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And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

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There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.

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There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.

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Six reasons why those who want to shift the relationship between the United Kingdom and the European Union need to now think in five-year cycles

29th December 2020

Imagine you are in some remote rural area where the bus or train only comes on a given day at a given time.

This is what it will be like for those who want to substantially change the relationship between the United Kingdom and the European Union once the trade and cooperation agreement is in place.

But instead of the the weekly or monthly bus or train, this cycle will be every five years.

And if that opportunity is missed, then it will be another five years before the opportunity comes around again.

This is because of one major reason – and also (perhaps) because of five other reasons.

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The first reason, as this blog set out yesterday, is that the European Union itself works in five-year cycles.

Each European Commission is appointed for five years and each European Parliament is elected for five years.

The Presidents of the European Council tend to also have five-year terms.

And after each five-year cycle, the European Union project is then (in effect) handed over to a new European Commission and President of the European Council.

It would thereby appear to be no accident that the review cycle for the trade and cooperation agreement is five years.

This means the European Union’s relationship with the United Kingdom will be dealt with in a manner that is convenient to Brussels and not London.

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This leads to the second reason.

The United Kingdom is no longer sufficiently important to disrupt the normal European Union political and policy life-cycle.

This will come as a shock to many in the United Kingdom who are used to demanding time and immediate attention from the European Union.

From the supposed re-negotiation of 2016, through the withdrawal negotiations, to the relationship negotiations, the European Union kept responding to the sound of the clicking fingers of the United Kingdom.

And the European Union had to do this, as the departure of a Member State could not be taken lightly.

But this effortless priority is now over.

Any substantial changes to the new relationship will have to fit in with other matters and be dealt with at what is the natural pace of Brussels.

And, in any case, many in the European Union are bored and tired of Brexit.

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The third reason is that it is only with five-year cycles that the European Union will be able to assess the stability and sustainability of any United Kingdom political and policy position on the European Union.

Even if there were some sudden political shift in favour of the United Kingdom joining, say, a customs union or becoming part of the single market, the European Union would want to see if that was a settled and consensual position.

The European Union is all too aware of the rapid convulsions that the European Union issue can cause to the politics of the United Kingdom.

Remember that in 2015 there was a general election in the United Kingdom where every major party was in favour of membership of the European Union – and three prime ministers and two general elections later, the United Kingdom is no longer a member state.

And 2015 was, well, five years ago.

The European Union has no interest in a substantial shift in its relationship with the United Kingdom which could quickly become undone.

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The fourth reason is also to do with the United Kingdom.

Will there even be a United Kingdom of Great Britain and Northern Ireland in five or ten years’ time?

As this blog has previously averred, two natural consequences of Brexit are a united Ireland and an independent Scotland.

These are not things which will necessarily, still less automatically, happen.

But they are foreseeable.

And so five-year cycles will allow the European Union to see not only how the politics and policies of the United Kingdom settle down, but also how the United Kingdom itself and its constituent parts settle down.

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And this structural point goes both ways – for the fifth reason is that the European Union itself in five and ten years’ time may itself be a different creature to what it currently is.

Freed from the reluctance and relentless scepticism of the United Kingdom, the European Union can now go in a different direction.

And so not only will the European Union want to see what the United Kingdom is like in five and ten years’ time, it will want to see what its own position will be like.

It will not be re-fighting the issues of 2016 or 2020 in its engagement with the United Kingdom, like some geo-political historical re-enactment society.

Regardless of what changes (if any) happen within and to the United Kingdom, the European Union will be thinking in terms of what suits it in 2026, or 2031, or whenever.

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The final reason is beyond the power of both the United Kingdom and the European Union.

In 2026, and in 2031, and so on, the world itself may be very different from now.

Many things may be different: a post-Trump (or revived Trump) United States, a post-Putin (or retained Putin) Russia, China becoming (or not becoming) the world’s largest economy, ongoing pandemics and climate change, and so on.

It may then suit the European Union and the United Kingdom to huddle together – or to huddle apart.

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In setting all this out, I do not wish to give false hope to Remainers/Rejoiners that if with sufficient focus and energy, they could shove the United Kingdom back towards the European Union in 2026 or 2031 or so on.

Indeed, the five-year cycle could even lead to greater divergence.

(And there is a non-trivial chance the United Kingdom may terminate the relationship agreement with one year’s notice.)

But if there is to be a closer relationship – or even an eventual application to rejoin – the United Kingdom will have to have regard to the five-year cycles of the European Union.

As I mentioned above, the days of snapping fingers for attention are over.

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My own view, for what it is worth, is that I hope the five-year cycle leads to an increasingly solid and sustainable association arrangement between the United Kingdom and the European Union – and that it becomes something that endures perhaps longer than the actual membership.

And I hope that the five-year cycles are used to adjust the relationship appropriately.

(I also support an Ireland united by consent and an independent Scotland and Wales, and these developments will also, in my opinion, be easier with an association agreement between United Kingdom (or just England) and the European Union.)

But these are mere hopes, and they can be dashed or discarded.

What is and will be in place, regardless of hopes (or fears), is that it will not be quick and easy for the United Kingdom – or England – to move substantially towards the European Union, let alone rejoin.

The eventful, exhausting 2016-2021 Brexit five-year cycle is over.

Let us see what future five-year cycles bring.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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European Union law and the United Kingdom – an obituary

14th December 2020

Over at Prospect magazine my column for the Christmas/New Year special edition was an obituary – for European Union law in the United Kingdom.

Please go over there to have a read – and I just want to develop and add some points here.

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European Union law is radically different from the common law of England and Wales (I am not qualified to speak of the laws of Scotland and Northern Ireland, though similar points may be valid).

By ‘radical’ I mean (literally) that it went to the root of things.

The effect of European Union law was not only to benefit particular policy areas (for example, employment and the environment and so on) – though there is no doubt that whole ranges of policy are better off for the influence of European Union law.

The impact of European Union was also to how one thought about law – and about policy and politics.

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First, the law of the European Union is often ‘purposive’ – in which to understand any legal instrument (a directive or a regulation or a legally binding decision) one often has to go through pages of recitals, other materials, and even back to the ultimate bases of the the provision in the European Union treaties.

This, of course, can be an interesting – sometimes exciting – intellectual exercise but it really does not serve the purpose of legal certainty.

And often it was difficult to say with confidence what the ultimate tribunals of European Union law (the court of first instance and the court of justice) would say the law would be in any given situation.

And unlike courts in common law jurisdictions, the judgments of European Union law judges are often not reasoned but are instead declarative, even assertive.

As a general rule of thumb: a European Union legal instrument is as helpful and detailed as European Union court judgment is not.

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Second, the public law of the European Union has a conceptual unity that the public law of England and Wales does not – or at least did not before the United Kingdom’s membership of the union and its predecessor European communities.

(Public law is the term for the law that regulates public bodies and those exercising public functions and provides for what rights can be enforced against them.)

In England and Wales we, in many respects, did not even have anything one could even call ‘public law’ until the 1960s.

There was instead a mix of actions and proceedings one could take against the crown, against statutory corporations, against courts, and against those holding various public offices.

European Union public law instead provided for a general approach to emanations of the state – and of the rights one could enforce against them.

The European Union legal concept of ‘proportionality’ (that is that a public body should only interfere with the rights of others to the extent necessary to serve a legitimate purpose) was also a welcome change to the brutal and permissive approach of our administrative law – which can be fairly described as allowing public bodies to get away with what they can, unless it is irrational.

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Third, the European Union and its predecessor organisations are creatures of law as much as of policy and politics.

And although one should never underestimate the push and shove of policy and politics, when dealing with the European Union one always should have regard to law.

This was a recurring mistake for United Kingdom politicians.

For example, before the 2016 referendum there was an attempt by then prime minister David Cameron to force through a ‘deal’.

But as this blog has previously explained, the Cameron team wrongly thought it would just be a matter of bombast and confrontation – that the United Kingdom just needed to want something and to demand it loudly.

There were, however, real limits to what the European Union could agree to, at least without treaty changes.

And the same problem happened again and again during the exit negotiations and now the negotiations for the future relationship.

The European Union takes process and legal texts seriously, and the United Kingdom under Theresa May and Boris Johnson did not.

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You will note that this post – and the Prospect column – are not unmixed celebrations of European Union law.

Instead, I have attempted a critical appraisal (though one set out simply and I hope accessibly).

And this is partly because my own ultimate view on Brexit is ambivalent.

In the early 1990s I believed that it would have been better for the United Kingdom to have left the European Union at the time of Maastricht treaty.

It seemed to me then that the trajectory of the European Union towards wider competencies (foreign policy and justice and home affairs) and currency union would not end well in respect of the United Kingdom.

(And it did not.)

But by around 2000 I thought any extraction of the United Kingdom from the European Union would not be worth the time and effort to deal with decades of entwined law and policy.

(And it has not been.)

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The break of the law of the jurisdictions of the United Kingdom from the law of the European Union is going to be messy.

It is not going to be a neat clean break.

And the laws of the United Kingdom are not – thankfully – going to revert back to 1973.

The direct effect and application of European Union law in the United Kingdom may be over – and that is why an obituary is appropriate.

 Its influence, however, will continue for decades.

The United Kingdom may have ‘taken back control’ of its laws – but Brexit will certainly not free domestic law from the impact of the law of the European Union.

*****

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

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How Brexit may lead to Scottish independence and Irish unification

1st December 2020

So familiar is the three-word phrase ‘the United Kingdom’ that it can be forgotten that it does not name any particular country.

It is instead a description of dry and abstract political arrangement – the kingdoms that are (somehow) united could be anywhere on the globe.

Of course, the term is short for ‘the United Kingdom of Great Britain and Northern Ireland’ – but the shorter form is more common.

It is worth pausing and thinking about the phrase, as it reminds us that the United Kingdom is itself a political union, as much as the European Union or the Union of Soviet Socialist Republics.

And political unions come and go: there is no inherent reason why any political union is permanent.

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This post is prompted by a tweet yesterday from the Conservative leader in Scotland.

The sentiment of the second sentence of the tweet can, however, be applied to another example of ‘independence’.

And this will be a recurring problem for British Conservative politicians in opposing Scottish independence: the arguments they deployed in respect of Brexit and against the European Union can be re-fashioned in turn by those in favour of dissolving the United Kingdom of Great Britain and Northern Ireland.

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For what it is worth (and it is not worth much as someone writing from England), I happen to support both Scottish independence and an Ireland united by consent.

This is not because I am anti-English and a rootless cosmopolitan, but a recognition that, in the end, all political unions will tend to come and go.

And although I dislike all forms of nationalism (which often tend to be illiberal), self-determination is very much a liberal value.

The people of Scotland and of Northern Ireland (and of Wales) should decide on their own political arrangements.

The United Kingdom is not necessarily a permanent arrangement.

Indeed, but for events before the Norman conquest, England itself could have carried on for many centuries being a geographic expression with a collection of smaller kingships (Wessex, Mercia, Northumbria), just as Spain did until the early modern period, and Italy and Germany did until the nineteenth century.

‘Great Britain’ itself – a combination of the union of the English and Scottish crowns and then of parliaments 1603 to 1707 – has no greater claim for political permanence than, say, the combined role of the British monarch being also the Elector of Hannover (which lasted from 1714 to 1837).

(On ‘Great Britain’ being a construct, it is worth reading – or at least knowing about – Linda Colley’s Britons: Forging the Nation 1707–1837.)

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But liberal arguments may work both ways.

The liberal principles of internationalism and self-determination can often be used both for and against any particular attempt at political union – for example, an independent Scotland (having exercised self-determination) will seek to be part of the European Union.

The European Union itself has no claim either to permanence, and it may one day join a list of historical attempts at unifying Europe.

Brexit and the recent political events in Poland and Hungary are an existentialist challenge to the European Union, which it may or may not survive.

The point is that no political structure is necessarily eternal.

Many once thought the sun would never ever set on the British Empire, before its fairly rapid dismantlement after the Second World War.

*

There is also a plausible argument that it was only membership of the European Union of both the United Kingdom and Ireland that enabled the peace process in Northern Ireland to work and the Good Friday Agreement to be put in place.

Take away the European Union and that handy practical solution becomes unstuck.

*

So one particular irony that may come from Brexit is that the so-called Conservative and Unionist Party – by its absolute insistence on forcing through departure from the European Union – may be instrumental in breaking up the union of England, Scotland, Wales and Northern Ireland.

An independence referendum in Scotland and a border poll in Norther Ireland are both now more likely than not in the next few years – and both may well go against being part of a United Kingdom.

And that would be an exercise in ‘taking back control’ – just not the ‘taking back control’ that Brexiters perhaps had in mind.

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The Anatomy of a Potential Constitutional Crisis – Part III – the Failure of the Gatekeepers

14th September 2020

For the current constitutional drama to have got as far as it has means that various ‘gatekeepers’ have either failed to perform their proper function or have been impotent.

By way of recap, the government of the United Kingdom is proposing to enact legislation that is deliberately intended to make it possible for ministers to make regulations that would break international and domestic law.

(See my posts here and here.)

That the legislation is before Parliament means that the process is fairly well advanced – for presenting a Bill to Parliament is about stage seven of a process, not stage one.

The first gatekeeper would have been the head of the government legal service – the Treasury Solicitor – and we know that this is the issue over which the Treasury Solicitor has resigned.

But that resignation has made no difference: the process has continued anyway.

A second gatekeeper would have been the Cabinet Secretary, who is the guardian of the Ministerial and Civil Service Codes.

Yet, somewhat irrationally and inexplicably, the Cabinet Secretary has determined that what the Treasury Solicitor has described as breaches of law are permissible under the Codes.

So much for the civil servant gatekeepers.

Now for the politicians.

The Attorney General, who is nominally the government’s chief legal adviser, is enthusiastic about this law-breaking.

The Lord Chancellor, whose oath of office contains a commitment to the Rule of Law, has said that there are breaches of law that are ‘unacceptable’ over which he would resign, but this is not (yet) one of them.

And on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.

So the gatekeepers of the Attorney General, the Lord Chancellor and the Cabinet generally have also permitted the the process to continue.

These gatekeepers are all checks and balances within the executive, and they usually should stand in the way of any attempt by ministers to abuse or misuse the law.

And all have failed.

So we now move on to the formal legislative process of Parliament and, if the provisions are enacted, the Courts.

And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).

If so, that would be an example of a working constitution.

But for this proposal to have even got to this stage, parts of the constitution have not worked.

The constitution of the United Kingdom is not codified and is reliant on checks and balances in practice that have little force other than by convention.

Only at the margins should constitutional tensions be resolved by litigation.

But what happens when the conventions do not work or are flouted?

The current constitutional drama may ultimately show, through Parliament or the courts, how the constitution works – but so far it has also show how the constitution does not work.

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The Anatomy of a Potential Constitutional Crisis – Part II

13th September 2020

Yesterday this blog set out an ‘anatomy of a potential constitutional crisis’.

In that post, there were two extraordinary facts stated that went to the current constitutional drama being serious and also novel.

The first was that a cabinet minister said to the House of Commons that the deliberate intention of the government was to break the law.

The second was that the government’s senior legal official – the Treasury Solicitor – had resigned on this issue.

These two facts indicated – perhaps demonstrated – that the current situation was significantly different from previous threats from the government to disregard the law, which have often only been briefed to the weekend media.

There were third and fourth facts which also should have been listed.

The third fact is that the government has published a Bill with the explicit power of making regulations that would break international and domestic law.

The fourth fact is that the Cabinet Secretary has expressly sanctioned this intention of breaking the law as being compatible with the Codes for ministers and civil servants.

And today there is a fifth fact: the Lord Chancellor suggesting on television that a distinction can be made between ‘acceptable’ and ‘unacceptable’ breaches of the law.

*

None of this – yet – constitutes a constitutional crisis.

The crisis would occur if such intended law-breaking survived parliamentary scrutiny and judicial supervision.

If such intended law-breaking did not survive parliamentary scrutiny and judicial supervision that would be checks and balances working as they should in a constitution.

But that said, this is a very different type of constitutional drama to what has gone before in Brexit, and one perhaps has to go back to the unionist threats to disregard the law before 1914 to find a historical parallel.

Of course, all this may just be politics – and there is some planned (or hoped for) political manoeuvre that the government is to execute under cover of this drama.

Such a political game does not, however, justify direct threats by the government to break the law.

Perhaps this is just a passing row, and the government u-turns this week on this proposal.

But that the government risked a constitutional crisis (as well as self-trashing its reputation as a reliable party to international agreements) will linger.

There will be an impact.

And so even if this extraordinary situation is now brought quickly to a halt, what this has created cannot end well.

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The Anatomy of a Potential Constitutional Crisis – Part I

12th September 2020

 

This has been an eventful week for law and policy – and for breaches of law and for a lack of a policy.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

It was a quite remarkable moment.

*

That this was now a formal government position was then demonstrated by two other events.

First, the government’s senior legal official – the Treasury Solicitor – resigned on this issue (and my Financial Times post on this significant resignation is here).

Second, the government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

These two events show that the government’s proposal for law-breaking is not a sudden or improvised development.

A lot of time, effort and resources has gone into this.

The resignation of the Treasury Solicitor appears to have been after a number of Whitehall exchanges involving ministers, officials and government lawyers, as well as external counsel.

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

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Any constitutional crisis – potential or otherwise – exists on two planes.

The first is the plane of high constitutional principle.

Here the most relevant constitutional principle is that of the Rule of Law.

(On this, I did a short exposition of the importance of the Rule of Law at Prospect and I also discussed it with human rights barrister Adam Wagner on his podcast.)

Put simply the principle here can be articulated as: the government is not above or beyond the law.

The government’s proposal may also raise (or will soon raise) constitutional issues such as the relationship between the two Houses of Parliament (if it is voted down by the Lords), the Irish border and the position of Northern Ireland, and the situation of the devolved administrations.

These constitutional matters are broad and could be relevant regardless of the detail of the proposals – whether the policy in question was about terrorism or agriculture.

*

The second plane is that of policy.

What is the policy objective that the government is seeking to achieve that, in turn, raises such constitutional concerns?

Here something does not make a great deal of obvious sense.

The purported concern is about the state aid regime on the island of Ireland after the end of the Brexit transition period on 31st December 2020.

I explain some of the detail of this purported concern on this video for the Financial Times.

There are two reasons why this being the cause of this potential constitutional crisis does not add up.

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First, there are other ways the government could address their apparent concerns about state aid and Ireland following Brexit.

For example, the government could have a post-Brexit state aid policy that it could discuss with the European Union in a sensible and mature manner, and both sides could then agree how to deal with any conflicts with the withdrawal agreement and the Irish Protocol it contains.

But the United Kingdom government does not know what its state aid policy is and has said it will be 2021 before one is published.

So whatever the ultimate cause of this potential constitutional crisis, it is not (and cannot be) any concrete policy differences on state aid and Ireland – because the United Kingdom government does not (yet) have a concrete policy on state aid and Ireland.

*

Second, the provision in the withdrawal agreement which the government asserts is the problem – Article 10 of the Irish Protocol – is something this very government negotiated and agreed to itself.

The government would have known the effect of what it was agreeing to – before signature the government legal service would have explained to ministers all the provisions in the withdrawal agreement.

And not only did the current government agree the withdrawal agreement, it campaigned at the December 2019 general election on the basis of putting this ‘oven-ready’ agreement into effect.

And the withdrawal agreement was indeed swiftly passed into law by an Act in the days before the United Kingdom formally left the European Union on 31 January 2020.

In essence: the withdrawal agreement was something this government negotiated, signed, boasted of, campaigned on, received a mandate for, and passed into domestic law.

*

And now the same government wants to break that same withdrawal agreement, less than a year after it was agreed and signed.

The problems with this are, for anyone other than the most partisan supporters of the government, stark and serious.

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

It is a stunning self-trashing of the United Kingdom’s place in the world.

And domestically the predicament is much the same.

Who will take seriously the government’s insistence on abiding by the law if the government itself openly has law-breaking as public policy?

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I love and enjoy watching and commenting on any constitutional drama

(You will get a sense of my sheer excitement on the Bunker podcast on this matter.)

But usually the constitutional drama makes some sort of sense.

Here there seems a deep mismatch – a disconnect – between the potential constitutional crisis and the underlying policy problem.

The United Kingdom does not (yet) have a post-Brexit state aid policy, and with open eyes it agreed to the Irish Protocol less than a year ago.

The problems, if any, with state aid in Ireland after 1 January 2021 do not require the United Kingdom government to propose and legislate for, in September 2020, a deliberate policy of law-breaking.

There is no rational explanation for what the government is doing.

And if there is no rational explanation then that leaves fanaticism, cynicism, conspiracy and/or idiocy.

Each of these are possible – either alone or in combination – but the lack of any genuine policy basis for risking a constitutional crisis, let alone forcing one, makes this a very strange constitutional drama.

*

This, however, is not yet a constitutional crisis.

There is every likelihood that the tensions here will be resolved by the government u-turning or being defeated during the Bill’s passage through Parliament.

If enacted, then the Courts may find a legal basis for limiting the use of the regulations made under the Act.

That would be the constitution working.

We are not at the ugly stage where a government minister is actually making a regulation that would break the law and there was no way of stopping this.

That would certainly be a crisis, by which I mean as serious and unpredictable situation where there is no obvious resolution – a constitutional contradiction rather than a tension.

A government deliberately breaking the law would create such a situation – and nobody can know what would happen next.

So this is still a potential constitutional crisis, not an actual one.

But it is an extraordinary and spectacular potential constitutional crisis.

**

ps Title amended to add ‘Part I’ on 13 September 2020

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The moral hazard of the United Kingdom casually breaching the Political Declaration

27th February 2020

The Political Declaration is a formal, negotiated document agreed between the United Kingdom and the European Union.

You can see the document here, hosted on the United Kingdom’s own website – all 31 pages of detailed prose, over 141 numbered paragraphs.

It is a serious document, to be taken seriously.

The United Kingdom government says itself on its website:

“The new Political Declaration sets out the framework for the future relationship between the European Union and the United Kingdom and reflects the Government’s ambition to conclude an ambitious, broad, deep and flexible partnership across trade and economic cooperation with the EU, with a free trade agreement with the EU at its core, alongside agreements on security and other areas of cooperation.”

The Political Declaration, however, is not legally binding.

And there is now a suggestion that the United Kingdom government can and should disregard the commitments set out in the Political Declaration.

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There have been, broadly, two responses to the United Kingdom government apparent desire to breach the terms of the Political Declaration.

The first is first is to say that as the Political Declaration is not binding then it does not matter if it is breached, casually or otherwise.

The second is to say that the Political Declaration is a formal and negotiated document, and that it does matter if it is breached.

These two views appear to be be in conflict to the point of contradiction.  

And if they are in conflict then the question becomes which is the better view.

The two responses are not actually in conflict as they are dealing with different things: there is therefore no hard contradiction.

But the better view is that the Political Declaration should be taken seriously – even if it is not binding.

Indeed, that the Political Declaration is not binding makes it more important that the government takes it seriously.

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What does it mean for a formal commitment to be “binding”?

Not all formally negotiated documents are (legally) “binding” – so what is it which gives them this quality.

In general terms “binding” means that there are formal sanctions available in the event of the breach.

These sanctions may not necessarily require the party in breach to specifically perform the commitment.

The sanction may be that the other party can terminate the agreement, or that there is some remedy or benefit for the other party.

But whatever the sanction, the notion is that the agreed commitment can be enforced against the party in breach so that the other party does not suffer the disadvantage of the breach.

Making a commitment (legally) binding is one way of showing that the party undertaking the commitment is being serious.

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In foreign affairs and international politics, however, a preoccupation with whether a formal serious commitment is “binding” or not is in good part a legalistic red herring.

A serious formal commitment is intended to be taken seriously and formally: that is its very point.

And this is regardless of whether it is technically “binding”.

Resiling from an obligation on the technicality that it is not legally binding is not to take such a commitment seriously.

(A useful comparator are the United Kingdom’s pre-Brexit financial commitments to the European Union – there were question marks over whether they were legally binding – how could they be litigated? which court? – but this was not the point: the United Kingdom had made a commitment and was expected to stick to it.)

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All this said, there may be a good reason for a country to depart from a formal serious undertaking.

And both the United Kingdom and the European Union knew that the Political Declaration was not (legally) enforceable.

Both sides accepted it could and would be departed from, in certain circumstances.

The crucial question would be: how and on what basis?

And in this way, the Political Declaration is, in effect, a test for a post-Brexit United Kingdom.

How seriously does the United Kingdom take non-binding commitments and assurances?

Do the words matter?

The less seriously the United Kingdom takes non-binding commitments, the stronger the signal to the European Union that anything important needs to be tied down in strict legal provisions.

This is why the daft posturing of the United Kingdom about casually breaking the the Political Declaration matters.

It matters as much, if not more, than if the Political Declaration was “binding”.

In effect: the Unite Kingdom is sending a signal of “don’t trust us, insist on strict legal obligations”.

And this signal is not just being sent to European Union – the signal is now being broadcast to every nation in world, to all the countries where, post-Brexit, United Kingdom may want to have “trade agreements”.

The United Kingdom may think it is saying to EU “screw you” but in fact it is telling the world “screw us”.

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Brexit was an opportunity for the United Kingdom to show the world how serious it was about having an independent trade policy.

Instead, the United Kingdom keeps showing the world how lacking in seriousness it is in entering international commitments

One day this lesson of moral hazard will be learned – if not by current ministers then it will be understood by future ones.

But that may be too late, as something important will already have been lost, and it will be hard to regain.

The United Kingdom government is still not taking Brexit seriously.

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