By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).
Increasing frustration with the Brexit process has prompted me to write this. I have tried to keep it short. My main argument is that the perceived obligation to implement ‘the will of the people’, felt by a large majority of politicians on both sides of the House, is creating a political, legal, social and economic crisis in the UK.
The time has come to demand that Brexit be stopped. A transition period, in which EU law rights and obligations are maintained for a time, now seems inevitable. Opinion in the country seems, slowly, to be beginning to shift. The sunlit uplands, as we are reminded on all almost daily basis, are no more than an illusion. Policy makers are seeking to find second-best solutions, and engaging in attempts to salvage what they can from existing arrangements (which work, at least tolerably, well). Unless advocates of the Brexit cause can point to political, social and economic benefits associated with Brexit, and unless they can demonstrate, in concrete terms, how these benefits are to be realised – and thus far, they have singularly failed to do so – we should not be prepared to allow them to indulge in their reckless fantasy.
A timeline of the key events
The referendum was on 23 June 2016. Its status is advisory. It does not sit easily within the UK’s tradition of representative, Parliamentary, democracy. It was won by the leave side, which obtained 52% of the votes cast. Many of the claims made during the campaign were untrue. There was no ‘leave’ manifesto. Those who led and supported the leave campaign had very different, often mutually incompatible, aspirations.
The referendum led to calls for the triggering of Article 50, a poorly drafted provision which has never been used before. It sets a two-year time period for the conclusion of a withdrawal agreement (unless that period is extended by unanimous agreement of all EU Member States). Time is very short. Despite protestations from Government Ministers that the withdrawal negotiations, and indeed the establishment of new relationships both with the EU and the rest of the world, would be easy, they self-evidently are not.
That the Government did not trigger Article 50 until March 2017 is in part due to the Miller litigation, in which the Government argued (ultimately unsuccessfully) that the power to trigger Article 50 lay within the scope of the prerogative. As it was, the Supreme Court confirmed that Parliamentary authorisation was, as a matter of UK constitutional law, required. Within days, Parliament passed the EU (Notification of Withdrawal) Bill (by a huge majority). The Government duly notified the EU of the UK’s intention to withdraw.
Between June 2016 and March 2017, the Government should have been planning for the task ahead. It should have been articulating a vision for Brexit and communicating it to the general public. Instead, we got little more than Theresa May’s vacuous Lancaster House speech. Since March, the clock has been ticking. The European Council adopted its negotiating guidelines in April. The Government should have been working on bridging the gaps between the two sides, and seeking to find the best possible Brexit outcome. But it has not done that. Instead, Theresa May called a general election in June 2017, asking the people to back her ‘strong and stable’ leadership, and to trust her to deliver the best possible Brexit outcome. No details of what that might be were presented to voters. Since the inconclusive result of the election, it is been clear that there is no agreement, even within the Cabinet, about the best route forward. The Labour Party is also split. The core problem is that there is no ‘best route forward’ which the Government has been able to put to the people.
Negotiations with the EU have stalled. Unless there is progress on the divorce bill, on citizens’ rights, and the Irish border, the EU is refusing to discuss the future relationship. These preliminary matters were supposed to be the easy ones; future relationship talks will be more difficult. For a start, the Government will have to articulate just what a deep and special partnership with the EU looks like.
The once Great Repeal Bill, now the European Union (Withdrawal) Bill, is currently before Parliament. It attempts to marry continuity and change – to repeal the European Communities Act 1972 and end the supremacy of EU law while at the same time converting existing EU law into domestic law. The task is fiendishly complex. The Bill gives unprecedented power to Ministers, threatens the devolution settlement, and creates huge legal headaches (for example in relation to the status of ‘retained EU law’ and the relationship between UK courts and the CJEU). We await Brexit Bills relating to customs, immigration, agriculture and fisheries; each of which will, in principle at least, be free from EU law constraints.
The consequences of Brexit
Political debate in the UK, and indeed in much of the rest of the world, is poisonous. The Government seems prepared to go to the courts in order to defend its non-disclosure of Brexit impact studies on 50 sectors of the UK economy. Attempts are made to reduce Parliamentary scrutiny of Government action. The desire to take back control has morphed into a sinister power grab. Sloganeering populism has an ever louder voice. Compromise is rejected. Expertise is eschewed. There is a proliferation of fake news.
Brexit has already had a huge impact on our communities. Migrants and refugees have been made to feel unwelcome. They are treated by the Government as bargaining chips, and public attitudes towards them have changed. Guaranteeing their existing rights outside an EU law framework is, in any event, impossible.
The economic forecasts of the OECD, to use this week’s example, are dismissed as another instance of ‘project fear’. But there is surely no doubt that the consequences of a ‘no deal’ Brexit would be bad for the EU, and catastrophic for the UK. Whether or not there is a deal with the EU, we should understand that the UK will have less bargaining power outside the EU than inside it, that countries the world over will seek to use Brexit to their advantage, and that uncertainties over the nature of access to the EU’s markets will make companies think long and hard before investing in the UK, or maintaining their investment here. Efforts, over many years, to align trading standards within the EU have yielded big economic benefits. The argument that we would be better without EU standards (relating to, for example, trade, and social and environmental rights) appeals to only the most liberal free-market wing of the Conservative Party. The Government’s future relationship papers contemplate, as far as is deemed compatible with the referendum result, the maintenance of the status quo.
Brexit is also deflecting the country from other urgent concerns. Westminster and Whitehall have their energies focused almost exclusively on Brexit. Businesses are lobbying and contingency-planning. And closer to home, far too much academic time is spent trying to explain, scrutinise, and map the effects of, policies whose outlines can only dimly be determined, which may well never come into effect.
Stopping Brexit is in the UK’s best interest
The social and economic consequences of Brexit are predictable, self-inflicted, and unnecessary. A transition period in which existing rights and obligations are maintained would, if nothing else, postpone the pain. In theory at least, it may buy time to negotiate a better deal. But, the question which the Brexiteers (and the more reluctant leavers who see it as their duty to implement the result of the referendum) have so far failed to answer, in any sort of detail, is how any such deal will be better than the deal we currently enjoy.
Before the referendum, the Norway model was easily rejected – access to markets, yes; but only as a rule-taker, with no influence at the table around which policy decisions are made. And ‘default’ WTO rules were seen as a last resort, no more than a sub-optimal basis for trade, inferior to more comprehensive trade agreements. Are we to believe that the UK, without the bargaining power associated with its access to the EU market (and without the EU’s negotiating experience), will be able to strike better trade deals than the EU? That (eg) India and the US will strive to reach agreements with the UK on better terms than those which govern their trade with the EU? Nothing I have heard from the Government suggests that it has answers to these questions.The recent Bombardier tariff spat with the US does not give cause for optimism.
It may be suggested that these arguments should have been made at the time of the referendum; and that they should not be made now (patriotic optimism is, apparently, the order of the day). My response is that yes, they should have made been in the spring of 2016. As it was, the claims of the leave campaign were not interrogated as closely as they should have been. But, that categorically does not mean that they should not be made now. For it is only as the political, social, and economic consequences of the leave vote become clear, that it will become possible to come to an informed answer to the question whether it is better to be part of the EU, or not. And, between now and March 2019, there will be many opportunities to take the debate forward.
There are various ways in which Brexit might be stopped. Legal opinion suggests that Article 50 may be unilaterally revoked. If agreement with the EU-27 is necessary, there is (still) every sign that it would be forthcoming. The constant message from the EU is that Brexit is not something they want to see happen. Parliamentary authority would be required for the Government to take such a step. A second referendum might well be thought to be politically necessary too.
The biggest risk in such a course is that many of those who voted leave will cry foul; that they will, once again, feel ignored, marginalised, and betrayed. One part of the answer to that involves saying that leave voters were first betrayed by the leave campaign, and then by those advocating Brexit, who have never been willing or able to articulate just what Brexit really means, and who have made one unconvincing pledge after another in an attempt to keep public opinion on their side. Another part of the answer is to acknowledge that the leave vote, at least in part, was a manifestation of a broken, unequal, political and economic system, in which the voices of far too many are unheard and unheeded. That must change. But, most important part of the answer is to say that it would be a bigger betrayal to continue with a policy which will damage the UK, and in particular in those areas where the leave vote was the strongest.
The Brexit process can and should be stopped. The referendum result does not mandate political, legal, social and economic self-harm. Once the Brexit process is stopped, the UK will have to work extraordinarily hard to mend relationships with its partners in the EU, and harder still to recapture its political influence worldwide. The task of rebalancing social disparities and healing wounds across the country will not be smaller. Working within EU structures, the UK can seek to reform those aspects of the EU which do not operate as well as they should, regaining a voice in the current debate, and strive to improve the lot of those it has, for too long, ignored.