It’s just over a year since the Government endorsed the narrow victory of the Leave alliance in the 2016 referendum on UK membership of the EU.
Now that events have finally begun to move, there is an enormous amount of work for constitutional lawyers, like me, to get our teeth into. Obviously, myself and my colleagues are now engaged in detailed analysis of developments such as the ongoing withdrawal negotiations and the so-called Repeal Bill. But a lot of people have been asking for a more general review, simply of where things have got to “one year on”.
For those purposes, I went back to a lecture I gave in Liverpool last June – only a matter of days before the referendum itself – in which I described the Leave campaign as being guilty of dishonesty on an industrial scale. But just as importantly, in that lecture, I also identified what any competent constitutional lawyer could have safely foreseen as the likely consequences of a Leave victory in the referendum.
Such concerns were dismissed by Leave campaigners as a lawyer’s version of “Project Fear”. But what is striking is how things are unfolding pretty much as expected.
In particular: I made 4 sets of predictions: two relating to the internal challenges that would face the UK; and two related to the external tasks that we would have to confront.
The first prediction was that a vote to leave would trigger a comprehensive review of the entire legal system, which would be needed to prepare the UK for withdrawal: after all, for over 40 years, UK law has evolved under the influence of and in combination with EU law. The impact of EU law may well vary from sector to sector, but such is the nature of EU membership that trying to divide “national law” from “European law” is more a task for philosophers than for lawyers or civil servants.
Moreover: the sheer scale and complexity of that review would inevitably entail a massive delegation of power from parliament to the government: it was simply impossible to imagine how such a vast job could be done by parliament itself.
And more generally: leaving the EU would also remove the regulatory safety nets provided by EU law, that prevent any government minded to do so from deregulating basic protections for workers and the environment and consumers etc.
So: Project Fear or Project Reality?
The Government has now published both a White Paper and a draft legislative text on the so-called Repeal Bill. It recognises the urgent need to prepare the UK legal system for withdrawal, which would otherwise cause tremendous uncertainty and dislocation. For that purpose: the Government proposes to incorporate all existing EU law directly into the UK legal system, so as to minimise disruption and ensure continuity. But the Government also recognises that a lot of EU law doesn’t actually make much sense if you’re no longer a Member State: for example, where EU law seeks to solve cross-border problems by coordinating the activities of different national authorities.
And so the Government agrees: the UK needs to carry out a comprehensive review of the entire legal system, just to prepare the UK for withdrawal; and that review will need to adapt and in many cases replace existing EU rules with some workable UK alternative. That job cannot realistically be done by Parliament alone – so the Government is demanding wide-ranging and far-reaching powers for itself to change the existing law. Make no mistake: not only does this legislation raise all sorts of more detailed technical questions, for example, about which parts of EU law the Government proposes to incorporate and which to reject. It also poses very serious questions about our constitutional fundamentals – executive scrutiny, democracy and legitimacy.
In any case: in some sectors, even the Government recognises that the scale of the changes will be so extreme that Parliament itself will need to work through a major programme of primary legislation, aimed at rewriting the regulatory regimes applicable to whole fields of our economy and society. The Queens Speech from June 2017 lists several such fields: e.g. customs, agriculture, fisheries, immigration, and trade. Only trifling matters, obviously.
The amount of time and resource that will be spent just on preventing the country experiencing regulatory and administrative malfunction is astounding. But in the meantime: we should pay careful attention to the gathering “anti-red tape” campaigns – being promoting by the likes of the Daily Telegraph – which seek to portray withdrawal as some “once in a lifetime opportunity” to sweep away any number of EU-derived rights and obligations. To them, of course, “red tape” means our rights as workers and consumers, or the regulatory standards intended to protect the environment or our broader safety and security as citizens. And don’t forget: short term promises in party manifestos to “protect workers rights” count for very little – leaving the EU is about imposing a long term, structural change in our social contract with public power.
That all sounds like Project Reality to me.
Our 2nd prediction was that a vote to leave could lead to radical changes in the constitutional structure of the UK. For example: it could increase the likelihood of a second referendum on Scottish independence. And it could create serious problems for Northern Ireland, not least through a hardening of the border with the Republic.
Project Fear or Project Reality?
Before the general election, the Scottish Government, with the support of the Scottish Parliament, formally requested permission to hold a second independence referendum. Since the election, the First Minister has postponed plans for holding a second referendum, at least until the nature of any UK-EU deal becomes clearer. But in the meantime: the devolved administrations continue to lament an almost complete lack of serious engagement with their concerns by the Government in London. Whatever happens in due course: the political damage done to relations between Edinburgh and Westminster is very serious.
And the Repeal Bill may well only make the tensions worse: although the Government insists that it expects withdrawal from the EU to lead (over some unidentified timescale) to greater powers for the devolved administrations, it has laid down only very vague criteria, aimed primarily at justifying the centralisation of power in London – such as preserving the UK single market and enabling the UK to enter into international trade agreements. There is little sign of any countervailing constitutional mechanisms – such as a domestic equivalent of the principle of subsidiarity – to protect the interests of the devolved regions.
As for Northern Ireland: there is now at least broad consensus among responsible actors that this is the region of the UK that stands to be most damaged by withdrawal. The border problems in particular are very real – especially in the field of customs; indeed, they are now considered top of the agenda for negotiations with the EU. And political tensions have not been helped by the minority Conservative Government’s deal with the hard right DUP – a deal which, even on a generous interpretation, devalues the “honest broker” principle which is meant to facilitate the smooth operation of the Good Friday settlement.
Again: that all sounds like Project Reality to me.
Our 3rd prediction concerned relations with the EU. In particular, we suggested that there would be negotiations on an agreement dealing with the mechanics of withdrawal (e.g. migrant rights); then separately, the possibility of a framework agreement on future relations (particularly in the field of trade). But the latter agreement could only be concluded after we had already left the EU and was likely to take far longer than two years to finalise. In the meantime: we might be forced to trade under the minimalist rules of the WTO – a scenario which every credible commentator regards as deeply unsatisfactory if not deeply damaging.
Project Fear or Project Reality?
What amazes me here, is how many Leave campaigners – within Government as well as outside it – are still living in a state of almost total denial about what is happening.
As viewers will know from our previous video in May 2017 – assessing the PM’s decision to call a general election – the UK’s negotiating position was seriously flawed from the outset, by the Government’s rather fantastical demand that all negotiations with the EU – on the mechanics of withdrawal, on a broad and ambitious future relationship, and on appropriate transitional arrangements – all of it should be done and dusted within a timescale of about 18 months.
By contrast, the EU’s consistent approach was always both more legally robust and more practically realistic: first, we sort out the mechanics of withdrawal; then, given sufficient progress, we can start preliminary and preparatory discussions about the future; but that future relationship can only be progressed after the UK has already left – and it is likely to take a lot longer to conclude.
David Davies had promised to make this the “row of the summer”. But of course, now that negotiations are actually underway, the inevitable has happened: the EU position is simply being imposed upon the UK –like it or not. So much for “taking back control”.
So far, the negotiations, just on the mechanics of withdrawal, have already thrown up some obvious points of tension. For example: despite the PM’s rhetoric about guaranteeing citizens’ rights, and not using them as bargaining chips, the UK baffled many of the other Member States by refusing to match (by quite some considerable distance) the EU’s existing offer of a full and reciprocal safeguard for the existing rights of all current migrants. Meanwhile, Tory Europhobes continue their strategy of seeking to whip up tabloid hysteria at any prospect of a financial settlement of the UK’s rights and liabilities – no doubt having identified this as their best chance to sabotage the chances of securing any withdrawal deal at all. Though to be fair, the Government isn’t doing too bad a job of that for itself: just look at their frankly irrational hatred of the European Court of Justice – as distorted and dishonest as anything else in the Leave campaign – which is nevertheless effectively dictating much of the UK’s future relations with the EU.
If the current negotiations on the mechanics of withdrawal are already at risk of getting bogged down, if not derailed, then any future negotiations towards a framework agreement, covering issues such as trade, security and defence, remain at such a level of sketchiness that they could qualify as work of abstract art. On virtually every single major issue one would expect to address in any significant trade or cooperation agreement, when it comes to the UK’s vision and preferences, we know almost nothing.
For now, the Government is sticking to its White Paper from February 2017. Which means we will be leaving the EU customs union. Instead, we want a special relationship with the customs union – it’s just that we can’t say yet what that might mean. And we will be leaving Single Market (even as members of the European Economic Area). Instead, we want a special relationship with the single market – it’s just that we can’t say yet what that might mean. All we do know is: the Government doesn’t want the free movement of natural persons; and rejects the jurisdiction of the Court of Justice. They show almost no awareness of the price to be paid for those “red lines”. But that’s almost irrelevant – since we don’t currently have any credible position on any other matter either. And let’s not pretend that the attitude of the Labour Party in opposition is much better: it isn’t.
This almost complete lack of detail from Britain’s political leaders is all the more striking, when one bears in mind several crucially important contextual factors:
– First, the UK cannot simply wish away the inherent problems of international trade; especially the challenge of tackling non-tariff (regulatory) barriers to cross border trade in goods and services. Leading Leave campaigners and indeed Government ministers seem oblivious to the real difficulties in securing better trade terms between developed economies. And particularly when it comes to provision of services, the UK will be seeking an entirely novel deal, with no clear international precedents.
– Secondly, the UK is not seeking to improve trading conditions with the EU; it is seeking to minimise the mutual loss of market access. In less than 2 years’ time, the regulatory conditions for UK companies doing business across Europe (and vice versa) are set to become substantially less favourable than they are now – actively creating a vast array of barriers to trade, which (at best) will increase costs and (at worst) will seal off markets, either in law or in fact.
– Thirdly, and as the European Council has repeatedly affirmed: no relationship, no matter how close, can offer the same benefits as EU membership. If the UK wants privileged access to the Single Market, it has to sign up to the EU’s expectations on regulatory standards and enforcement – and not just now, but into the future as well. The EU will insist on a level playing field, e.g. in fields such as competition and state aid. It will safeguard against unfair competitive advantages, e.g. as regards tax, social and environmental dumping. And the UK will pay for such privileges – just like everyone else has to.
Project Fear? Actually, it all sounds like Project Reality to me.
Our 4th and final set of predictions was that, when it comes to relations with the rest of the world, we would face a series of challenges: 1) the loss of our existing trade agreements (dozens of them) as already negotiated by the EU; 2) the need urgently to build capacity in the highly specialist and complex field of international trade negotiations and representation; 3) the likelihood that our bargaining power on the international scene will prove to be significantly more limited than it is as part of the Single Market; and 4) the risk that other countries would expect clarity about our domestic and regional trade position before entering advanced talks on new trade deals.
To be fair, it is still a little too early to tell just yet, exactly how this prediction will pan out. But perhaps we have enough little signs already to know the general direction of travel.
E.g. we know that the EU will indeed regard us as being excluded, upon withdrawal, from existing deals negotiated by the EU for the benefit of its Member States.
E.g. several countries have expressed their interest in a future trade deal with the UK in principle; but in practice, they intend to prioritise their own economic relations with the EU and (by the way) would prefer us to clarify our position first please.
By contrast, the Government treats every random statement about some great, very powerful, very quick trade deal, uttered from the mouth or keyboard of the terrifyingly unstable President Trump, as if it were gospel – conveniently forgetting that Trump has been absolutely consistent about just one aspect of US international relations: America First.
Indeed, the contrast between the Government’s haughty arrogance towards the EU and its obsequious desperation towards America hardly bodes well for our negotiating skill and credibility. Especially against the worrying background of a Government which has repeatedly threatened, that the reality of “Global Britain” could mean competing on world markets as some sort of low tax, low regulation – and with it low productivity, low public services – sweatshop economy. Let’s hope that the so-called left wing leavers feel proud of helping sweep a hard right movement to power and giving it the constitutional leeway it needs to realise its hard right objectives.
The basic reality is that, whatever the delusions of the leave campaigners, we are now firmly on course to discover that even we – the British – are not exempt from two principles that are simply axiomatic to international trade relations.
First, the ambition of an international trade agreement is conditioned primarily by the willingness of the parties to agree ambitious regulatory frameworks and sophisticated institutional arrangements, that will help promote mutual trust between their respective political, administrative and judicial authorities. The more ambitious the deal, the more extensive the obligations, and the more extensive the obligations, the more your theoretical national autonomy is constrained in practice.
Secondly, in international trade, size matters: the bigger players dictate the rules of the game. They do so at the global level: the key international organisations which develop the rules of the world economy are (like it or not) dominated by the interests of the US and the EU, increasingly China. The same is true at the bilateral level: the EU determines the terms on which smaller economies can better access its market; if those smaller countries are not willing to pay the price, they don’t get the better access.
So: looking back, one year on, it seems that events are unfolding in a way that was entirely predictable and indeed actively predicted.
One of the key roles of a constitutional lawyer is to help ensure that those who exercise (or who seek to exercise) public power are held accountable for their actions. In the context of the UK’s withdrawal from the EU, you might think that that job has in some respects been made easier. After all, Leave campaigners are in the process of becoming subject to a form of accountability they have never really had to experience before: the accountability of reality. The time has come when their fantasies have to find solutions to real problems; they have to negotiate with people who haven’t been conned into sharing their distorted worldview; they have to address challenges which they denied would ever even materialise.
But how will they respond? By welcoming the scrutiny? By admitting their mistakes? By apologising for their reckless risktaking? Of course. They’ll ignore, they’ll deny, they’ll blame everyone else except themselves – the internal saboteurs and the spiteful foreigners. And it’s that what actually makes the challenge of accountability more difficult and yet also more important: our job is to help ensure that Leave campaigners are held responsible for the consequences of their own choices and actions, judged against their own promises and denials.
We’ll be back soon from Liverpool, with more detailed analysis of some of the key ongoing developments. In the meantime, have a good summer.
Professor Dougan is an employee of the University of Liverpool. He does not work for, undertake paid consultancy for, or receive funding from any company or organisation that would benefit from this article/post.
Award of Jean Monnet Chair – Professor Michael Dougan:
“In 2006, the University of Liverpool was awarded a Jean Monnet Chair – a form of EU grant – consisting of €36,000. Under the terms of the grant, part of the money was spent on a major academic conference, the outputs from which were published by the usual process of international peer review. The remaining funds were spent on general teaching costs. The Jean Monnet award itself has long since been closed. However, for so long as I remain an employee of the University of Liverpool, I am entitled to continue referring to the 2006 award among my own professional distinctions. I am very happy and proud to do so, since such awards carry considerable prestige within my academic discipline.”