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?)
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.
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.
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.
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.
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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