Why has Brexit become a legal matter when it should be a political matter?

11 September 2018

Any legal commentator on public affairs is faced with a common criticism: why don’t you understand this is all about politics, not law?

And often this is fair criticism.

An approach which is too legalistic is, of course, one which is too narrow.

(For example, I once thought no government, acting rationally and in the national interest, would do something as mad as making the Article 50 notification, for reasons which are now too apparent.)

But as Brexit continues, in a fashion, Brexit seems to become ever more legalistic.

The Article 50 process means that the UK leaves the EU by automatic operation of law on 29 March 2019, unless something exceptional and currently unforeseeable happens.

This is the fundamental legal truth which informs almost all the current politics about Brexit.

The stand-off in the withdrawal agreement is about finding exact text to address legal obligations under the Good Friday Agreement and in respect of the Irish border generally.

The withdrawal agreement also deals with legal issues such as the post-Brexit rights of UK citizens in the EU and EU citizens in the UK.

And then in respect of the future relationship between the UK and EU there re the legal issues in respect of free movement and tariffs and trade.

What, if anything, do “WTO terms” mean?

(And what, if anything, will be left of the rule-based regime of the WTO after Trump?)

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Law everywhere.

Almost every current Brexit issue now seems primarily about law: what must be done, what must not be done, and what can and cannot be done, in various scenarios.

How has this been allowed to happen?

Surely Brexit should not be about what the lawyers (and the courts) say is possible?

And surely the black-and-white texts of the withdrawal agreement and any agreement covering the future relationship are second-order problems, which should only be mere translations into formal prose of what politicians and diplomats are agreeing?

Lawyers should know their place.

But the reason why legal (and legalistic) issues have become so important – almost determinative – in Brexit is because of the complete failure of UK policy.

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The UK does not, in any meaningful way, know what it wants out of Brexit.

And the EU is following a process to safeguard its own interests and to seek not much more than an “orderly” Brexit.

There is therefore a policy void, in which the UK stumbles along.

The process is defaulting to a sequence of legal points because there is a vacuum where a Brexit policy should be.

The lack of a Brexit policy is both remarkable and disappointing.

Those UK politicians who were opposed to the EEC and then the EU have had 45 years to develop an alternative to membership.

But even the controversies over the passing of the Maastricht and Lisbon treaties did not lead to the formulation of practical counter-proposals.

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If one looks to the leaders of the Brexit campaign, we can see columnists (Boris Johnson, Michael Gove, Daniel Hannan), broadcasters and studio pundits (Nigel Farage) and talented self-publicists (you know who).

All of whom can make passionate cases in various media for Brexit, in 500 or 1,000 words.

But if you ever examine what they say carefully, there is little or no policy substance.

Their only response to any Brexit setback seems to be yet another rousing op-ed piece or an angry appearance on radio or television, but nothing more.

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Compare and contrast this policy flimsiness with other serious politicians who drove through fundamental policy reform: R. A. Butler on education, Aneurin Bevan on the NHS, Norman Tebbit on trade union reform, Lord Cockfield on the single market.

The lack of seriousness of the Brexit politicians is stark.

This is why the UK’s approach to Brexit has been reduced to a sequence of improvisations and media-driven pronouncements, from Theresa May’s Birmingham conference speech of 2016 to the Chequers proposal of this year.

All are manouveres to hold a political position, but there is not any policy vision. Even the formal Article 50 notification was given no more thought or substance than a press release.

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And so we are reduced to bickering about what the Article 50 process can and cannot permit, what can and cannot be done during a transition period, what can and cannot be done in the event of no withdrawal agreement, and what can and cannot be agreed with regard to the Irish backstop, and so on.

Law should always be servant of policy, not the other way round.

That Brexit has been and continues to be driven by legal and process issues signifies the absence of strategy and concrete policy.

Brexit has become legalistic only because insufficient effort and thought was put into making it something greater.

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36 thoughts on “Why has Brexit become a legal matter when it should be a political matter?”

  1. As I understand it, the Grieve amendment to the EU Withdrawal Bill required that seperate legislation had to be tabled for the UK to actually depart from the EU – the meaningful vote. If parliament refuses to grant this, or another piece of key legislation falls, the UK would not have met its own constitutional requirements for leaving (which is required under Article 50): what then?

    1. Parliament did refuse to grant this, instead legislating to empower No 10 to issue the Art 50 notification. The UK’s constitutional requirements were met. The argument that there wasn’t a constitutionally sufficient decision, has been formally declared by the High Court to be both “Totally Without Merit” (a technical category) and “hopeless”. Even the litigants’ barrister said in court he thought the argument was crazy. There is no impugning our withdrawal demand except through politics.

      1. No, this was after the Supreme Court case. It is a live issue (should the situation arise), but it would open the most enormous can of worms as, ultimately, the ECJ would need to decide that a sovereign nation, the UK, could not leave the EU since it had not met its own (freely set) constitutional requirements. Such a situation would surely be untenable, but is a logical conclusion of the wording of Article 50 of the treaty of Lisbon.

        1. As I understand it, the EU’s interest in the UK’s constitutional propriety on the matter ends once they have accepted the Article 50 notification. It is the taking of the decision to leave that the treaty demands conforms to the member state’s own constitutional requirements; thereafter, it is the EU’s own constitution (the treaty) that governs the process. And under that, the member state leaves on the date designated in the withdrawal agreement, or, failing that, on the second anniversary of the Article 50 notification. No subsequent perceived constitutional defect on the UK’s part can change that.

          Or is my reading entirely wrong?

  2. There have been some attempts to devise comprehensive Brexit policies. The Leave Alliance’s scheme for EFTA as a trojan horse to build a trade-only European bloc was one such; their outputs were as detailed as anyone could wish.

    Their articulation of a particular policy alienated them from other Brexiteers, and vice versa. Richard North’s website is now the most bitter and angry corner of the Brexitsphere, which takes some doing.

    It looks rather as if any detailed Brexit policy would have this outcome: it would de-rally support from whatever flag it launched under. Chequers certainly has. The ERG’s outputs, spiked this weekend, would have done so, too.

    The political consequences of any “seriousness” about Brexit clearly damage its adherents. Sure, any policy prescription for a complicated problem will alienate some people; you couldn’t write a new structure for health and social care without making a few enemies, for instance. But Brexit demonstrates this in spades.

    So it’s not enough to blame the political classes for failing to come up with a convincing Brexit, which is what DAG seems to do here. Yes, Brexit defies serious articulation and unpacking, leaving the discussion to lawyers by default. But that’s because it is fundamentally an irrational, romantic notion, which defies any meaningful policy narrative. And as soon as any attempt to articulate it is made, the magic disappears.

    1. But isn’t DAG in all but name, merely calling out the fundamental irrational nature of Brexit by illustrating how as a last resort it has now become a legal matter? And with fewer than 200 days remaining, why isn’t the media hammering this home? Rather, they continue to report every imbecilic utterance of Johnson and JRM as though it were newsworthy.

      1. Maybe. He does say that “the lack of a Brexit policy is both remarkable and disappointing”, which suggests otherwise.

  3. No mention of Gibraltar. What about Gibraltar? And Scotland and Northern Ireland which voted Remain as did many cities: London, Bristol, Bath, Manchester, Oxford and Cambridge. British politics seems to have broken down completely. What about the fact (yes fact) that Leave has been sanctioned by the Electoral Commission – but it seems they cannot annul the referendum because it was consultative, not binding? Why hasn’t Parliament looked at why people voted as they did. Surely that was the intention behind the referendum (according to the Parliamentary website). Why are we where we are? Basically I would say: too many MPs being yes-men and not actually understanding the EU and what membership meant…

    1. I live in N Ireland. Brexit is a very political issue here, at least for the bloggers and commentators on political sites.

      Most are quite clear; the actions of unionists such as the DUP are not helpful here, and are playing into the hands of nationalists such as Sinn Féin. It’s no longer a theoretical discussion; Irish unification is very topical. Polling shows that a ‘hard’ Brexit gives about a 20% increase in support for unification; in this ‘worst’ scenario, a vote for unification would win comfortably. (Of course, were there to be such a formal poll, there would have to be one in the Republic as well.)

      And if N Ireland goes, what of Scotland? The feeling here is that Brexit is basically a construct of English nationalism; if things go badly, then it’s likely that the UK will break up.

      That’s not something the Leavers promised us.

      1. Irish reunification has simply been a matter of time for as long as I can remember seriously considering the issue (I am a child of the 1970s, so that is since the 1980s at least). Assuming we allow self-determination within the six counties, demographics ensure that it will happen sooner or later, within another generation or two. From what you are saying (and I suspect you are right) Brexit may accelerate that to a matter of years rather than decades.

        Assuming that is that the Republic wants to take them back. Much like Germany, I suspect they will feel they have to, even if it causes significant economic problems in the short term. Quite a lot in this vein over at http://www.progressivepulse.org/?s=northern+ireland

        It would be ironic if Unionist support for Brexit leads directly to Northern Ireland leaving the UK.

  4. There certainly is a lack of the necessary competence and leadership required to deliver policy consensus within Government.

    Why anyone would think that reducing that pool of talent (from which to choose ministers) by culling 50 MPs from the House of Commons would do anything to improve executive decision making is beyond me.

  5. Leaving aside the complete pig’s ear that has been made by the current government, it seems to me that there is an underlying problem in these negotiations, that might also have had a bearing on the frictions between the UK and the other Member States in the past.
    That is the differing status of law in the UK – or at least England and Wales – and most continental European countries. In the UK, and considering government and administration, law is very definitely seen as the servant of the government. Legal questions are seen as ‘legalism’ and any difficulties can be swept aside if the political will is strong enough.
    Other countries, however, work in a context of administrative law meaning that political decisions are automatically constrained by the legal context. So when British politicians expect their EU counterparts to put aside legalities and focus on what both sides want out of negotiations – a perfectly reasonable request in a national context – this is not understood on the other side of the table. There, the legal situation determines the range of possible solutions.
    It is not for nothing that the majority of senior civil servants in Germany are lawyers while in the UK (if things have not changed recently) nearly all legally qualified civil servants will be in specialist – usually non-policy – legal teams.

    1. Interesting point, linked, presumably, to the absence of a formal constitution is the UK – something that I think is going to have to change.

    2. I agree with this and most of Jack’s blog. Also/but the EU is a legal construct the powers of which are constrained by law; oF course the discussion is legal. UK negotiators’ calls for “pragmatism” runs counter to this, ignores the different modes of ( legal) analysis on the Continent ( deductive vs. inductive reasoning in Francophone countries; logical purity in Germanophone countries) – and reminds of “Perfidious Albion”. Finally, English domestic lawyers distinguish between law and policy much more than e.g. the Realist or Yale Sociological Jurisprudence schools.

  6. While I agree that the Leave side has nothing more to offer than deluded unicorn fantasies, I respectfully disagree that this is the only reason for Brexit being a legalistic matter. By definition, any exit of an EU MS is a legalistic matter. IMHO it’s also overly optimistic that more time or better preparations had resulted in a fundamentally better negotiating position. There would have been less humiliation and UK’s reputation not as painstakingly destroyed as it is now, but in essence, there would have always just been the choice of off-the-shelf partnerships with a bit of personalized flavor to make an agreement “bespoke” – but cake would have never been on offer.

    However, if anything, Brexit proved that the UK has fundamental problems which aren’t caused by Britain’s EU membership but are of domestic origin.
    Even more unfathomable than cluelessly triggering A50 is to me that nobody in UK politics and elite is publicly acknowledging the constitutional and societal crisis the UK is in.
    Unless this isn’t honestly diagnosed, analyzed, debated and addressed, I don’t see how the UK can survive in its current form. It appears to be a only matter of short time until Scotland and NI will sing “Farewell & Adieu”.

  7. I guess the psychologists will be picking over Brexit for decades. They will see a group who were ‘viscerally’ opposed to membership of the EU; but why were they so opposed? They might explain it by saying ‘take back control’ or a ‘vassal state’, but fundamentally they don’t seem to really know why they didn’t want to be in the EU; they just ‘knew’ they wanted out, and out no matter the cost. And daily it becomes ever more clear just how little thought they gave to the process and the aftermath. Where was the talk of food and medicines rationing before June 2016? How many Leavers knew then that the UK had a land border with the EU? Did they all think that England ended at the White Cliffs?

      1. Thanks for the link; the article is long, very long.

        I’m not sure that I gained much from it, other than ‘British’ really means ‘English’.

    1. The reason that there is an irreconcilable group of Tory Europhobes is as a reaction to Black Wednesday. The Tory Party didn’t wish to accept the blame for the irrational economic policy that its government had been implementing for several years before 1992, so it sought for external factors to blame. Blame soon settled on the European Exchange Rate Mechanism, and by extension the European Community. The Tories thus managed to avoid blaming themselves for the national humiliation that their government’s policy had caused, but in doing so, soon took up a cultish opposition to all European political institutions, which until then they had supported.

  8. “The UK does not, in any meaningful way, know what it wants out of Brexit.”

    This is what makes me panic. The UK does NOT know what it wants! The majority (and I will be happy to be advised on this) do NOT know what Brexit entails. Even politicians do NOT understand the ramifications of Brexit.

    I’m going to fall back on the fact that I could be dead in 10 yrs and it will not matter to me – except that my grandchildren will be poorer, have less opportunities; be ostracised by the EU; be resident in a 3rd World country; have no future; and have no recourse – unless they become politicans & force us back into the EU.

    I’m (almost) pleading for a reversal, in that we drop any exit, and STAY within the CM. For the good of this country. For the welfare of our citizens. For common sense to prevail.

    For my grandchildren :(

  9. Liking the equation of Mogg with Voldemort..

    And yes, this is what happens when a clique of journalists relentlessly brainwash their readership and themselves over a 40 year period.

  10. Well, yes and no.

    In any divorce, there is a period when it is all about the legal settlement. Then its done, and generally people have a whinge about how they got screwed over by the lawyers, and then they move on. so, yes right now its about the law, but once the deal is clear, it won’t be about the law.

    And what do we want after? Well, that’s both very vague and undecided, and also very clear. Just as in a divorce, the new divorcee has a whole range of things they can go and do. But people don’t get divorced because they think they’d like to take up Yoga, they get divorced because they no longer want to spend their lives with that person moaning at them all the time and complaining about them. And so it is with the EU. What I absolutely don’t want any more is to be in the EU. The relationship had been on the rocks for a while, but when Cameron came back with nothing, that was it.

    And what I do want right now is to be able to elect politicians who are accountable to the electorate. No more “EU rules” excuses. And if they think Chequers is the best option, fine, go and make it work, and we will cast judgement in 2022.

    1. Everything I see from Brexiters ultimately seems to add up to:

      ‘I don’t want to be governed by the laws and rules of England any more. I want to live my life by laws and rules made in the parish of Much Wenlock, Shropshire, and to be accountable to the mayor and council that me and my fellow villagers elect’

      It’s reductio ad absurdum.

      1. No it isn’t. This is a false argument. Why stop at Europe? Your argument leads to a single world government.

        It is the responsibility of rulers to justify to the ruled why the rulers should rule over them. The EU failed to do that with the UK.

        Similarly, it is the responsibility of the UK “government in Westminster” to justify to the people of Scotland why they should continue to be “ruled from Westminster” and not from Scotland. So far they have done that and I hope the “Westminster government” continues to persuade the people of Scotland that being part of the UK is in their best interests.

        1. Dipper’s comments exemplify the cause of the problem which is that the UK’s politicians and press have failed to educate the English population about the EU. To answer in brief: (1) The EU does not “rule” the UK. Our elected representatives have a seat at the table, we directly elect members of the EU parliament, we have input into every EU policy, we have a veto and, uniquely, we have opt-outs. (2) The tangible benefits. No space here for everything but they range from frictionless trade to the PEACE programme but the govt of the day always take credit for any positive EU action. Consequently, it is almost impossible to have a reasonable, rationale discussion about the EU as the argument has been skewed by 40 years of intentional misinformation which has left many people unable to assess what is in the best interests of the country.

  11. What problems are we trying to solve by leaving the EU ? Did the EU make us do something bad that we didn’t want to do? Did they prevent us from doing something important that we wanted to do? What are the benefits from leaving it? What are the costs of leaving it ? What in fact is the point of Brexit ? These questions were never really asked in the referendum campaign. And in the two years afterwards, it is still hard to find a single serious example of a problem caused by the EU that can be solved by our leaving it. So the lack of a post Brexit policy cannot really be a surprise.

    1. Exactly and when I look at the other side of the equation what do I see but many benefits that will be lost, freedom of movement, frictionless trade, inluence in a large political and trading block with shared aims and objectives. I feel British and European and like it that way, I suspect many Brexiteers see themselves as English with no recognition of Scotland, Wales or Northern Ireland. Shared beliefs do not seem to be part of their DNA. Their inability to come up with a vision for the future outside the EU proves.

  12. Absolutely right. I would add to this the fact that through legal definition it becomes possible to do what is politically unpalatable or impossible, for example, effectively to remain in the EU CU by the formalisation of legal devices such as Free Trade Areas or sectors or segments. Another example: Give preferential visa access to EU citizens to the point where they just need a rubber stamp. To have Parliament examine and decide which rules on trade, or manufacturing or social policy it wishes to keep and which it wishes to reject, (a power it aleady has). Doubtless there are many others proposed, particularly in relation to the border or lack therof in Ireland.

    I could go on and on, but I think the point is made.

  13. I think that one explanation for the psychological gap between the Brexit/non Brexit is found in Haidt’s “the righteous mind”, here he describes how (in the US) there is an educational and generational difference between those younger and more educated who make moral decisions based on twin themes- he calls them foundations- of Justice and Care, and those older and less educated who also add three more foundations: Loyalty (nation and family), Purity and Traditional Authority. It is a convincing enough explanation, though somewhat arm waving.

    1. David Goodhart makes a similar point (at length) in “The Road to Somewhere”. “Somewheres” are people rooted to their origin, “Anywheres” are more educated and mobile.

  14. The main problem with formulating any coherent policy to deliver Brexit is that there never was a properly articulated and widely supported vision of what Brexit might look like.

    Clearly it was possible to mobilise a diffuse coalition of disparate interests so that 52% of the voters end up supporting a generalised proposition – we want out – without finding any particular policy positions that any 52% would support afterwards.

    The situation has become so toxic and divisive that even the small group of hardline Brexit supporters in the ERG can’t agree to put forward any positive positions that they all collectively want. They know anything they suggest will be shot down, so why bother? Particularly as many would be content with “no deal”.

    So by default we crawl each day towards the worst possible outcome. No deal is worse than any possible deal. Everybody loses.

    To channel the rhetoric of a deceased Conservative politician in a slightly different context: We must be mad, literally mad. It is like watching a nation busily engaged in heaping up its own funeral pyre. As I look ahead, I am filled with foreboding. Only resolute and urgent action will avert a terrible outcome. Whether there will be the public will to demand and obtain that action, I do not know. All I know is that to see, and not to speak, would be the greatest betrayal.

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