One day a historian will assert that the outcome of Brexit was inevitable all along

28th November 2018

A day or so ago this blog set out that in the current fog of Brexit there were three visible paths: Deal, No Deal, or (even) No Brexit.

That is still the case, and others – no doubt more sensible – can also see other paths, such as ones which head toward a further referendum or an extension of the Article 50 period.

Today’s post is about what an odd situation this is, given we are now only a few months away from when the UK is set to leave the EU by automatic operation of law, unless (as I aways say) something exceptional happens.

We have had the Article 50 notification, we have had negotiations, we have had “sufficient progress” and a joint report, and we now have a draft withdrawal agreement agreed in principle between the UK and EU, and which has been approved at a senior level at the EU.  All which is now required is formal acceptance and ratification on both sides.

This should be the most certain point in the Brexit story so far.  All the formalities are in place for an orderly departure.

And yet: Brexit has never been as uncertain as it seems today.

No pundit or politician can confidently guess what will happen.

All we can do is work out the defaults, and the choices open so as to avoid or delay those defaults: what things require more effort or external factors and so on.

That, however, is no better than having an idea of which horses or athletes are likely to win a given race.  Some are more likely – the “ones to beat” – but that is all.

One day, a historian, with better access to official materials but with less access to the mood of the time, will assert that whatever outcome we are in for was inevitable all along.

And some pundits who currently cannot forecast what will happen will also purport to explain why an outcome was always pre-determined.

But such neatness and clarity is not available to us now.

We have only fog, and some paths visible and some not visible.

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Three visible paths out of the current Brexit fog

26th November 2018

So where are we now on Brexit?

We are in a fog.

We are in a situation the outcome of which nobody can predict, at least with any certainty.

There is no pundit, no official, no politician who knows what will happen with Brexit.

In this fog, however, there are paths which are currently more visible than any others.

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First, the UK will leave the EU by automatic operation of law on 29 March 2019 – that is, unless something happens to prevent it.

In domestic legislation, the European Communities Act 1972 is also set to be repealed on 29 March 2019.

So this is the default predicament – the quickest way to the bottom of the slope.

Nothing more need to be done for these two legal events to happen, and for these events not to happen will take substantial effort.

This will be the path of least resistance, even if it would be a disaster in practice.

But it is not the only path.

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The second visible path in the fog is accepting the deal.

The deal has been negotiated by both sides, and there is a single agreed text for both sides to now endorse and ratify.

The EU has already endorsed it senior level though the European Parliament has yet to approve it or veto it.

Signing this agreement would, for the UK, to be path of next-to-least resistance.

The problem here is that it seems that there are not enough MPs to approve it.

If there is not not enough support in the Commons, the UK can either drop back down to the path of least resistance (a no deal Brexit as above) or somehow do something else.

*

If the EU is sincere when it says it does not want to re-open negotiations, then the current deal will be the only deal on offer, regardless of whether UK seeks extra time for a referendum or otherwise.

In other words, the choices above will not change.

(I cannot see any political appetite on either side for my preferred option of abandoning the Article 50 process, and for the UK and EU to negotiate the withdrawal and relationship agreement together as a single treaty, for as long as it takes.)

And so the only other option would presumably for Brexit to be abandoned altogether.  Only “remain” remains once the other options are discounted.

That is the only other visible path, but it will be quite a climb(down).

*

A number of good and sensible people can see other things in this fog, paths leading elsewhere.  I hope they are right, and I hope they will forgive me for not being able to see these other paths out of the the current mess.

But a genuine worry must be that the UK government continues to take the path of least resistance and falls into a no deal scenario.

**

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Why the draft withdrawal agreement may be the only responsible option

16th November 2018

British politics is currently exciting, with resignations and the prospects of leadership challenges.

But when the excitement passes, there are certain brute facts about Brexit and the draft withdrawal agreement which will still be there.

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First, there will still be the mandate of the referendum result.

One may contest that there was a real mandate and point to the irregularities and the unlawful behaviour of certain campaigners.

That, however, does not change the political reality that the government, the opposition and the majority of MPs are committed to fulfilling that mandate.

*

Second, the UK is set to leave the EU by automatic operation of law on 29 March 2019.

On the same day, the European Communities Act 1972 is also set to be repealed by automatic operation of law.

Both of these legal facts can be averted, of course, by formal action in the 130 or so days left. But until and unless that happens, they are the defaults.

*

Third, the UK is unprepared for a “No Deal” Brexit, and there is no serious prospect that the UK can become prepared properly in the time available before 29 March 2019.

This is true, regardless of those who in abstract terms seem to be at ease with the prospect.

The reality would be chaos in respect of customs and citizenship, supply chains of food and other necessities, atomic energy and medicine, and so on.

A No Deal Brexit is not serious politics.

*

And fourth, there is little prospect of the EU27 budging on its offered terms of departure.

Those politicians such as Michael Gove and on the Labour front bench who are raising hopes for a “re-negotiation” need to answer two simple questions.

1.  What concrete, specific terms in the draft withdrawal agreement do they want to re-negotiate?

2.  And why do they think EU27 will shift their position?

The EU has arrived at its position after two years of guidelines and consultation, and their position will not change lightly – or quickly.

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In the cold light of mid-December, when the parliamentary vote is expected to take place, the attitude of MPs may well be different from now.

Yesterday it seemed that the Prime Minister did not have a majority for the draft withdrawal agreement.

In a few weeks, it may be that MPs have to choose between the deal still in the table or risk catastrophe in spring.

Of course, there is the possibility that the UK government suddenly changes gear and will seek an extension of time for a further referendum, as a way out of a political deadlock.

Or the opposition Labour party may succeed in forcing a general election.

Nothing can be ruled out given the current state of British politics.

*

The public release of the draft withdrawal agreement was not done well.

A 585-page complex legal instrument was just dumped onto the internet by the UK government.

There was no accompanying executive summary.  There was not even a table of contents.  The back half of the document, comprising the various protocols, were confusingly arranged even to legal professionals.

None of the politicians or pundits who quickly formed opinions on the draft could have read and properly digested the draft.

Those ministers who prepared resignation letters within hours certainly could not have properly considered the document.

Whatever positions were adopted, they were not based directly on the instrument itself.

*

The draft withdrawal agreement is not, in fact, a bad document from the UK’s perspective.

The EU, for example, has given way on issues in respect of the role of the European Court of Justice.

Even the notorious backstop, which provides what will happen if the UK and EU fail to agree a relationship agreement, is heavily caveated and subject to various protections.

If MPs do vote against, and the EU does not renegotiate then, other things being equal, the best the UK can hope for are a series of emergency bilateral agreements before March on discrete cross-border issues to mitigate against the worst of the impact of No Deal.

That would be unseemly, and there is no guarantee the agreements would work, but that would be to what a responsible, desperate government would have to resort.

Whatever happens in the next few hours, days and weeks, the EU’s offer is likely to still be there.

Of course, if there is a development which means the UK seeks an extension of the Article 50 period, or even revokes the notification, then the ultimatum of this text or No Deal becomes far less urgent.

But if that does not happen, the UK will have no real option to accept, however embarrassing it will be for the MPs who attacked the deal yesterday.

In this way, Brexit will become like Grexit.

**

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Five arguments against a #PeoplesVote

22nd October 2018

On Saturday 20th October there was a march in favour of the “People’s Vote” – for a further referendum in respect of Brexit before the UK departs the EU.

The march was heavily attended, good natured and peaceful.  The photographs on the news were striking, especially of the sheer size.

The legal tweeter and QC Sean Jones set out a compelling justification for the march, even if the prospects of getting such a referendum are low.

And I know many good and sensible (and admirable) people who went on the march.

So it is not with any joy that I set out arguments against a further referendum.

(Please not that these are my assortment of arguments, and should not be seen as a package, as you may find some weaker than others.)

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As a preliminary point, however, there is a bad – if popular – argument against a further referendum.

That argument is that the 2016 referendum result was determinative of the issue, that the people have spoken and there is nothing more to say.

But, as I have contended elsewhere, a referendum result is either democratic or irreversible, and it cannot be both.

Just as no parliament can bind another, no electorate can bind another.

The votes on that June day in 2016 have no special magical power which cannot ever be gainsaid.

If there was a reversal of Brexit, by any constitutional means, that would be just as constitutional as the 2016 vote.

*

The first argument against a further referendum is the simple one of time.

A further referendum would need primary legislation, and probably secondary legislation, and there is simply not enough time for it to be done – that is, properly done – before March next year.

This blog pointed out the issue of time back in December last year.

The last referendum statute took a year from beginning to end (in a far less controversial atmosphere).

Also: issues to do with voter registration and campaign funding, which were dealt with by secondary legislation, would also have to be revisited.

(And the last lot of secondary legislation here has not stood the test of time well, as various findings of illegality indicate.)

In theory, a statute can be rushed through Parliament in a day, in an emergency, but that is for short legislation where there is no dispute between parties or between the lower and upper houses.

This “time’ argument has less force if there is an extension to the Article 50 period, but no extension is being proposed by any main player.  But even then, the easy and quick passage of the legislation cannot be taken for granted.

*

The second argument against a further referendum is that Brexit has already been subject to constitutional checks and balances, and has passed them all.

Brexit does not hang only on a referendum result but now also on subsequent decisions of the supreme court, of parliament, and of the electorate.

The 2016 referendum was advisory, and the the result in and of itself had no legal effect.

After litigation which went all the way to the supreme court, there was a bill put before parliament so as to provide a basis for the prime minister to make the notification.

This bill was passed and became a statute, by significant majorities in both houses.

You may think MPs and peers were misguided in voting for the bill, but they did.

And then, unexpectedly, there was a general election and the question of Brexit was put before the voters themselves.

The electorate voted by a significant majority for parties committed to  the UK’s departure.

Again, you make think that voters were misguided.

But the brute constitutional fact is that Brexit has now been approved by both parliament and the electorate.

It has passed through two constitutional pressure valves.

The objection to Brexit is now not only to the referendum result but also the decisions by parliament and the electorate.

In my view, parliament can and should still assert itself before March 2019, but that is unlikely.

But it cannot be denied that Brexit has passed through the required constitutional checks and balances.

Supreme court, parliament, electorate: how many more bites of the cherry?

(And it is, of course, difficult to place credence on a campaign for a further referendum promoted by those who, by definition, do not accept the results of referendums.)

*

The third argument against a further referendum is that referendums are part of the problem not part of the solution.

This can be also be seen as the problem of duelling mandates.

Referendums on a UK-wide basis sit badly with the UK constitution.

A mandate derived from a general election is a weak mandate.  Many victorious parties ignore many promises in their manifestos.  Some government’s even u-turn on manifesto promises (as the Conservative government did in 1990 over the poll tax/community charge).

But a mandate derived from a referendum is a different creature (or a poison, depending on your view).  It seems not to have any way of being extinguished.

Some may argue that a further referendum is the only means the Brexit mandate can be cancelled out.

But instead what you will have are two decisions – two heads of a dragon instead of one.

And what if the further referendum is on a lower turn-out?  Or a different majority?

Which mandate takes precedence?

This is why it is a matter for parliament to assert itself on.

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The fourth argument is that a further referendum campaign, and a further fall-out from a referendum result, will make things worse.

You may wonder how a referendum could make things worse.

How it could make things worse has been set out by Robert Shrimsley at the FT (click here).

As he argues (in my view persuasively):

“If the previous campaign was ugly and divisive, imagine the next: a full assault on every institution of political stability with added venom for foreigners.”

Is there anything about how the Brexit debate has been conducted for two years which makes any serious person doubt this?

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Fifth, there is the argument that the vote is unpredictable.

Those who were surprised by the 2015 and 2017 general election results, and by Trump’s defeat of Clinton, seem to believe that somehow this result is predictable.

But there is no particular reason to believe the electorate will suddenly side with Remain, as much as opponents of Brexit would want it to do so.

*

So overall: there is not enough time for a referendum, the constitutional opportunities for checking (or slowing) Brexit have already come and gone, there will be no way to choose between competing mandates, the whole thing will be divisive, and it may not get the result its supporters want anyway.

This is not to say that those opposed to departure should give up.  They should carry on opposing with all their might until the very last moment, using any legal or political weapon available.  There is nothing wrong with that.

I would love this Brexit story to have the happy ending so many of you want, with the #PeoplesVote saving the day.   Sadly, however, this is likely to be a Brexit by Quentin Tarantino, and not by Walt Disney.

*

Unless parliament asserts itself before next March  – using the deeper magic of the constitution to defeat the witchcery of the 2016 referendum – the most sensible thing to do seems to be to prepare and influence the post-Brexit regime, so UK can continue being in the single market and customs union.  I have described this as a “Burma Brexit”.

Any other way, it seems to me, does not rid the UK polity of the 2016 referendum “mandate” for the UK leaving the EU.

Let’s get it over with, stay close to the EU or rejoin – and let us never – ever – have a UK-wide referendum again.

**

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A posthumous apology to Sir Doug Ellis

12th October 2018

(This post is not directly about Brexit, but you will see that it is.)

Sir Doug Ellis, the former chairman of the football team I follow, has died.

I used to think that all Aston Villa needed so as to be be great again was to be rid of him as chairman.

The thinking was this: he had been a chairman of and associated with the club in the 1970s, but when he was ousted the club then had its greatest successes, winning the league in 1981 and the European Cup in 1982.

And when Sir Doug returned in 1982 the club fell into (relative) mediocrity: runners-up here and a league cup or two there.  The books were balanced, certainly, but there was “no ambition”.

So the reasoning was simple: if Sir Doug could be replaced, Villa would spring back into its rightful place as champions at home and in Europe.

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How wrong and idiotic I was in holding this view.

One day Sir Doug did leave the club to be replaced by an American businessman.

And the club’s recent decline began.

(I date the beginning of the decline to the then manager Martin O’Neill’s dreadful and eternally unforgivable decision to deliberately play an under-strength team in a UEFA cup match in Moscow in 2009.  Your mileage may differ, if you care at all.)

Of course, Sir Doug was not blameless: the sacking of Tony Barton in 1984 still rankles.

But after Sir Doug left, Villa become far, far worse.

And now we are in our third season in the wrong division, and in the bottom half as well.  Yet another manager has just been sacked, and there are further absent or distant millionaires in charge.  The club almost went bankrupt in the summer.

The truth appears to be that without Ellis, the club may well have sunk sooner and deeper.

Being a runner-up here and winning a league cup or two there now seems like a golden age.

*

Simple solutions are often false, especially when they are premised on memories of national and international greatness.

(You see, this post was about Brexit.)

And so I offer the ghost of Sir Doug Ellis an apology.

Sorry, Sir Doug,

**

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Theresa May and John Constantine

9th October 2018

One of the best stories – perhaps the best – of John Constantine, the sardonic DC comics street-mage, is Dangerous Habits (1991).

In this tale the dying Constantine stays alive by the simple and sensible expedient of promising his soul to three separate demons of Hell.

This means that the three demons then have to strive officiously to keep him alive, so as to avoid a civil war in Hell if Constantine dies.

(By outwitting devils, Constantine is very much in the tradition of the folklore character after whom this blog is named.)

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The predicament of Theresa May and the Conservative Party is similar.

Few if anyone positively wants May to remain Prime Minister, probably not even May herself.

But the factions of the Tories know that if she goes, especially before Brexit is completed, then there will be a hellish civil war in their party.

One can stay alive a long time, sometimes, when people are desperate for you not to fall.

**

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A “Burma Brexit” – why Remainers should allow the Brexit mandate to be discharged

 

8th October 2018

We are now only a few months away from 29th March 2019, which is when by automatic operation of law the United Kingdom leaves the European Union.

(There are ways that this date may get delayed, and it is even still possible Brexit could get cancelled altogether.  But a delay or cancellation currently looks unlikely.)

This imminent departure is the legal truth around which politics is now revolving, or should be revolving.  It is the starting point of any understanding of the UK’s current predicament: “Marley was dead, to begin with. There is no doubt whatever about that. The register of his burial was signed by the clergyman, the clerk, the undertaker, and the chief mourner. Scrooge signed it.”

This exit of the UK from the EU has been a legal fact since 29th March 2017 when the Article 50 notification was served on the European Council.  The notification was valid.  There is no serious doubt about that.  The Supreme Court insisted on primary legislation, Parliament passed the primary legislation enabling the Prime Minister to make a notification, a notification was drafted, and the Prime Minister signed it.

A legal timer started its countdown.

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The legal fact of the UK’s departure on 29th March 2019 is perhaps the only fact about Brexit about which one can be sure (though that fact can change).  Everything else is uncertain.

Looking at British politics, however, one can get a sense that this fact is not properly appreciated.

There is, for example, what can be (no doubt unfairly) called the Brexit referendum re-enactment party, a bit like the Sealed Knot battle re-enactment enthusiasts but without the period costumes.

The intention of these campaigners is to discredit the result of the 2016 referendum, so that the perceived “mandate” is extinguished.

They have some good points: the Leave campaigns breached the law, false promises were made on the sides of buses and many other places, and people were misled into voting Leave when, had they known what was at stake, they would (or should) have voted Remain.

And yet:

– the 2016 referendum followed a 2015 manifesto commitment by the party which won that general election;

– the 2016 referendum had as its legal basis a dedicated statute passed by Parliament and its question was approved by the Electoral Commission;

– the European issue has dominated UK politics since at least the late 1980s and has caused (partly or fully) a sequence of political crises and problems and so it was an issue which needed to be resolved one way or the other;

– there was a lengthy campaign where the government used a considerable amount of public money in its campaign for Remain;

– the dangers of a Leave vote were pointed out in the campaign (even if dismissed as “Project Fear”): and

– the vote was still for Leave on a heavy turn-out.

The glaring question is not how Leave won the referendum but why Remain lost.

The referendum vote was, of course, not binding.  It was advisory (a point which I made at the FT before the vote took place).  It would need parliamentary approval.  The vote was not enough.

And so there was – correctly – litigation to force the government to obtain parliamentary approval.

But when this parliamentary approval was obtained, this still was not enough for many opponents of Brexit.

The 2016 referendum result had to be discredited by other means.

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Another feature of current Brexit politics is the blame game.  This is popular among Leavers.

The blame mongers fear that the Brexit the UK is about to experience will not be pleasant.

This is not their Brexit.

But just as some Remainers want to pretend that the referendum result never really happened, these Leavers want to pretend that a successful Brexit was viable.

Any Brexit, especially one done at speed and without preparation or thought, was not going to go well.

And so either it would have to a Brexit existing in name only or it would be a catastrophic hard Brexit, with no continuity at all.

There was never enough time, or (frankly) inclination, for there to be any other outcome.

The ones to blame are those who supported the Prime Minister’s premature Article 50 notification: the MPs  who voted it through and the pundits who clapped and cheered.  They all should have known better.  Those are the guilty men and women, to allude to a once famous book about a policy failure.

Once that notification was made then nothing good or worthwhile was likely to come out of Brexit.

(And that is why I once thought no government would be mad enough to send the notification.  I was wrong.)

*

So we have a mandate which cannot be ignored and an approach to Brexit which cannot go well.

The UK has got itself into a bit of a problem.

The irresistible force of political legitimacy and the immoveable object of policy reality.

What if anything can and should be done?

*

There are Remainers who will fight the UK’s departure to the very last day.  In a way, they are to be commended, and they may still prevail.

But there is an alternative approach.

There is no obvious way to rid the UK of the referendum mandate, other than allowing it to be discharged.

Even a further referendum (the result of which nobody can be certain) would not be enough, especially if there is a lower turnout.  And there is probably not enough time now for the primary legislation required for a new referendum before March.

One could hope that Parliament could assert itself, and go against the referendum result, but Parliament had its chance to “take back control” with the Article 50 legislation, and Parliament blew it.

(This is not to say that the 2016 referendum result is absolutely binding.  No electorate can bind another, and a referendum result is either democratic or irreversible, but not both.  But I cannot see any way the 2016 referendum can now be reversed in practice.)

On 29th March 2019 the mandate will be discharged.  The result of the 2016 referendum will be honoured.  The UK will be out of the EU.

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And then what?

What follows Brexit may be longer-lasting than the UK’s membership of the EEC/EU.  The UK’s membership will have been 46 years, the next arrangement may be even more durable.

At the moment, however, few people are putting any practical thought in to what follows Brexit.

We have instead the referendum re-enactment players and the blame gamers.

In terms of substance, rather than form, any future arrangement can keep the UK in the EU’s customs area, and can allow the UK to (in effect) be part of the single market.  And as the mandate will have been discharged the referendum result will not (or should not) have any further purchase.

On this basis, it would seem sensible to encourage the UK to enter the withdrawal agreement on offer – the so called “transition period” is in reality a continuity provision.

And after 29th March 2019, the aim would be to convert the transition period into a permanent association agreement.

I sometimes call this a “Burma Brexit” after the British Army’s dignified retreat in World War II which was skilfully converted into a impressive victory.

Many Leave politicians  will not be able to counter this, as it requires a grasp of detail which few have shown, and in any case their mandate will have been discharged.

So rather than hoping for (and revelling in) disasters and setbacks, a wiser approach of those who value the UK’s ongoing relationship with the EU is to support the government’s attempts to get a withdrawal agreement in place.

A “no deal” Brexit will make a close association agreement far less likely, as the best basis for such an agreement will be the so-called “transition” terms themselves.

Of course, events may overtake this.  Brexit could still be delayed or cancelled.

But on the basis of things as they are now, we should be encouraged by the title of the book by the architect of the Burma campaign: Defeat into Victory.

**

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The contexts of Thatcher’s Bruges speech of 1988

26th September 2018

Last week was the thirtieth anniversary of the “Bruges speech” by the then prime minister Margaret Thatcher.

Over at the FT I did a piece on the anniversary, contending that the speech was not the start of the road to Brexit (a view put forward by a number of pundits).

Instead I suggested that it was that by disregarding that speech that Conservatives took us on the road to Brexit.

The peroration (of sorts) to the piece was:

“…for two fateful years, 2015 to 2017, the Conservatives did have an overall majority.

“And they unleashed first an in/out referendum and then a botched Brexit.

“They may well have now brought the UK down with them.

“None of this happened because of the Bruges speech, in which Thatcher set the Conservatives the challenge of fashioning the future of Europe.

“It came about because many in her party disregarded the Bruges speech and decided to retreat from the EU instead.

“The road to Brexit began not with the Bruges speech, but with its rejection.”

This proposition may be right or wrong, and it is ultimately a matter of opinion and interpretation, as is any attempt to make causal connections between historical events.  If you have a view, go over to the FT if you can and leave a comment there.

The purpose of this post is not to re-assert the argument made at the FT but to set out what I think are the relevant contexts to the Bruges speech.  Some of these contexts are set out in the FT piece, but I thought they warranted a separate post on this blog.

In doing this “contextual” post, I realise that it is not “black-letter” law.  But if you want black-letter law, go to law school.  This blog (and my writing at FT and elsewhere) is about law and policy, which means (if it means anything at all) putting law into context.

And understanding the context of contested views about the nature of the European Union (formerly the European Communities, including the European Economic Community) and of the single market, makes it easier understand many of the law and policy aspects of Brexit today.

(And by way of background, in 1988 to 1990 I was a politics student and (then) Conservative activist with Euro-sceptic views, and so what follows is based partly on recollection, and memory of course can have its own bias.  And I have not supported the Conservatives for over ten years, since around the David Cameron pledge to repeal the Human Rights Act.  I am now a non-party small-l liberal and far more on the Left than Right.)

*

1988 was four years before 1992, and at the time the latter seemed a more significant date for Europe.

“1992” was the shorthand for a campaign of awareness of the completion (or supposed completion) of the Single Market.

In April 1988, five months before the Bruges speech, Thatcher launched the “1992” campaign at Lancaster House.  It is worth reading the speech in full, but here are a couple of highlights:

“How we meet the challenge of the Single Market will be a major factor, possibly the major factor, in our competitive position in European and world markets into the twenty-first century.”

Indeed.

And:

“By 1993 Europe will be our home market.

“That means that we won’t just be exporting to eleven other countries. We will be doing business in a single domestic market. Getting to grips with that basic proposition will mean a major re-think, for companies of every size […] 

“Above all, it means a positive attitude of mind: a decision to go all out to make a success of the single market.”

*

The “1992” campaign, I recall from speaker and discussion meetings and conferences at the time was not a cause of any enthusiasm among Tory activists.

But nor was it the cause of particular disquiet.

My recollection was a sense of reluctant pragmatism.

But when in the early 1990s, it appeared that for enthusiasts for European integration the achievement of “1992” was not enough.  There was then a push for the European Communities to be converted into a European Union.

This was the run-up to the Maastricht Treaty.

I remember a sense that this rush, before “1992” had settled, seemed like taking a step too quickly and too far.  It seemed that those in favour of European integration would never be satisfied.

I thought (and still think) it was a mistake for an impatient push for creation of a European Union (and for monetary and currency union) to begin before the single market had properly become embedded and the benefits appreciated in the UK.

*

In the late 1980s there was a sense among Tories of euphoria and, in hindsight, hubris. At the 1988 Conservative Party conference (which I attended), the slogan “ten more years” was as common as “make America great” at any Trump rally.

At home, the trade unions had been (or at least had seen to be) defeated.  This was partly because of the trade union reforms of Norman Tebbit and others (which have never been significantly repealed, even by later Labour governments), partly because unionised sectors of the economy had disappeared or had weakened, and partly because of the symbolic victory of the British state over the badly led miners strike.

Abroad, and to the extent Tories of the time thought about Europe they thought about in terms of the Cold War and the threat of the Warsaw Pact than anything to do with the EEC, it seemed also that the Conservatives had “won”. Gorbachev was a person whom Thatcher could do business with, and although the sudden collapses of the Iron Curtain (figuratively) and the Berlin Wall (literally) in 1989 to 1990 were surprises, there was from the mid-1980s onwards a sense that the Cold War was becoming less intense.  And the UK could be again proud in the world (and the genuinely impressive triumph in the Falklands bolstered this sense of international confidence.)

The enemies “within” and abroad looked as if they were vanquished: the scalps of enemies from Galtieri to Scargill hanged on the mental walls of the Tories of the time.  The 1987 general election had seemed a walk over.

It was a time for new opponents, for new foes to be defeated in the “ten more years”.

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One enemy which was identified was “wasteful” and “loony left” local government, and the urge to check this explained the folly of the community charge (ahem, Poll Tax).

The other became European federalists seeking to impose a European super state.

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The “Bruges speech” was not the only significant speech about the future of Europe in September 1988.

Earlier that month, at the Trades Union conference, the European Commission president Jacques Delors had made an emphatic demand that there be a social dimension to the EEC.

The Delors speech is worth reading along with Thatcher’s Bruges speech.  One is almost a reply to the other, two visions of the future of the EEC.

I recollect that the effect of the Delors speech seemed profound on those in the Labour movement, who had been sceptical of the European project.  As recently as 1983, the Labour Party general election manifesto had proposed UK’s withdrawal.  Then well-known Labour politicians, from Tony Benn and Michael Foot to Peter Shore were openly hostile to the EEC.

But the Labour left, which were as dispirited as the Tories were euphoric, saw in what Delors had to say a way of checking the excesses of the Tory UK state, and there seemed a general acceptance of the social dimension of the EEC, a Euro-enthusiasm which was to hold the Labour leadership until Jeremy Corbyn became leader.

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But in 1988, the Conservatives were the more European of the major two parties.

Winston Churchill had promoted a united states of Europen in his post war speeches.

Harold Macmillan had seen EEC membership as a replacement for the loss of empire and the limitations of the commonwealth.

Edward Heath had taken the UK into the EEC in 1973.

The Tories had officially campaigned “yes” in the 1975 referendum.

And the Single Market itself owed greatly to the Tory politician Lord Cockfield (in my mind the most significant Tory politician of the 1980s after Thatcher).

The Conservatives in parliament under Thatcher had endorsed the Single European Act, the biggest shift to date (and perhaps ever) of power from member states to the Brussels institutions.

There were exceptions, of course, though Powell had long left the Tory party and the most prominent Euro-dissident John Biffen was famously “semi-detached” in cabinet).

But the Conservative Party at the time of Thatcher’s “1992” speech and then her “Bruges” speech was a pro-European party with an impeccable track record.

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But.

The Bruges speech soon became something it was not.

In the speech, Thatcher states (in a phrase which riles many Brexiteers):

“Britain does not dream of some cosy, isolated existence on the fringes of the European Community. Our destiny is in Europe, as part of the Community.”

The speech was not a rejection of the EEC.

It instead was setting out a vision of the EEC.

And the venue was important: this was not like Theresa May seeking to placate political backbenchers.  Thatcher was leading from the front, at the College of Europe, seeking to take on those with alternative views.

The Bruges speech was a call to arms, not the sound of the bugle of defeat.

And it was, perhaps, the last “pro” European speech of any UK prime minister.

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After 1988 the attitude of many Tories, and of the right wing press hardened.

1990 was the year both of the infamous Spectator cover of Kohl as Hitler and of The Sun’s Up Yours Delors.

This was two years on from the “1992” and “Bruges” speeches of Thatcher.

Something had changed.

The tendency became not to show that the “Bruges” vision of the future of Europe was better and more attractive than the federalist alternative.

Instead the other side became the enemy, to be insulted and reviled.

As far as I recall, no leading minister from John Major downwards made a pro-European speech after he became prime minister in 1990.

The divisions in the Tory party during the passage of the Maastricht treaty became deep and hard.  Eurosceptics became, in effect, a party within a party, with their own groups and publications.

There was lots of politics.  MPs had the whip withdrawn.  There was a leadership challenge.  MPs in favour of taking the EEC seriously resigned the whip and joined over parties.

Elsewhere in the EU of 1992, the Danes rejected the Maastricht treaty to the jubilation of many Tories in the UK.  The French had only a bare majority in their referendum

And then there was also “Black Wednesday” of 1992, which discredited (or was seen to discredit) those in favour of UK participating in monetary and currency union.

It was not becoming difficult to be an opponent of the EU project.

1992 was turning out to be a different sort of year for the European project than that envisaged in Thatcher’s speeches of 1988.

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Within four of years of 1988, Thatcher’s positive vision of what the EEC seemed out-of-date. Only her warnings of the other more federalist visions seemed relevant.  The EU seemed not to be going in Thatcher’s direction.

And in later years, Thatcher was reported to be no longer a fan of the EU in any way.

Her supporters and fans no longer sought to reform the European project but to move the UK away from its centre.  The Conservatives left the centre-right group in the European parliament.  Every opt-out was received with a demand for more.

And so contrary to the “Bruges” speech, many of those who followed her sought some form of existence on the fringes of the European Community as our destiny no longer seemed to be in Europe, as part of the Community.

Perhaps given the push to European integetion at Maastricht and afterwards, perhaps that shift in attitude was inevitable.

But in 1988 things did seem very different.

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Why Brexit is both exciting and not exciting at all

19 September 2018

Brexit is exciting to a follower of politics: every day it seems there is something new, and one can often swing from thinking there will be a deal or no deal, or even from thinking there will be Brexit or no Brexit.

Brexit is a news event well suited to social media and rolling news.

But from a “law and policy” perspective, following the ball rather than the political players, there is less excitement, more a sense of inevitability.

The Article 50 notification was made on 29 March 2017 and so the UK will leave the EU by automatic operation of law on 29 March 2019, unless something exceptional and currently not in view happens.

The EU27 has in turn put forward a withdrawal agreement which provides them with comfort.  This will probably be agreed before March.  This agreement provides for a transition period which is, in reality, a stand-still period.  There are still aspects to be agreed but it is heading towards final form and approval.

Over at the FT today I have set out why the current Salzburg summit may not be that important in respect of Brexit: just another minor step, and one which may soon be forgotten.

Of course: this may be wrong and that politics may erupt spectacularly in such a way so as to mean Brexit will not happen, or will be delayed, or whatever.

But unless that happens in the decreasing time available, all there is to see is the grim rolling of the conveyor belt taking the UK out of the EU, despite the noise and fury of day-to-day and minute-to-minute politics.

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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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