Brexit: Chronicle of a Crisis Foretold

By Christian Dadomo

The European integration process is certainly the most advanced and remarkable example of regional integration unequalled so far in no other parts of the world even though some lighter forms of regional integration, such as Mercosur or ASEAN Economic Community,  have been more or less modelled on the EU.

The European regional integration seemed to be unstoppable and unbreakable despite the many political and economic crises it sailed through since the 70s and more recently in the past decade in the aftermath of the 2008 financial crisis.

Yet, for the first time in its history, one of its largest and most politically and economically powerful and influential Member States, the UK, took in 2016 the extraordinary decision to leave the European Union (EU).

Until the adoption of the Lisbon treaty in 2009, membership to the EU was for life as the original Treaty of Rome and its subsequent amending Treaties never included a clause of withdrawal. Inspired from Article I-60 of the Treaty establishing a Constitution for Europe, Article 50 TEU recognised for the first time the right of Member States to withdraw voluntarily and unilaterally from the EU.

Ironically, this new provision was designed by its drafters to deter the EU Member States from actually withdrawing from the EU and was certainly not designed with the UK in mind. It could be even argued, like Mauro Gatti convincingly does, that “Article 50 introduces a procedure that discourages secession from the EU”.  Yet, it is this very provision that enabled the triggering of one of the most extraordinary and unprecedented events in EU history, i.e. the withdrawal of the UK commonly referred to as ‘Brexit’.

This was decided following a referendum that took place on 23 June 2016. The results were 51.9% “Leave” and 48.1% “Stay” and the turnout was 72.2% representing more than 30 million people. However, while England (the largest country) and Wales voted clearly in favour of leave (53.4% and 52.5% respectively), Northern Ireland, Scotland and Gibraltar (the often forgotten UK overseas territory) voted overwhelmingly for remain (55.8%, 62% and 95.9% respectively).

The purpose of this blog is to recount Brexit as the chronicle of a crisis foretold: Brexit was foreseen and yet no one tried to avoid it.

Following an explanation of the Brexit process, two fundamental questions are addressed, namely whether Brexit was predictable and inevitable, and the consequences of a no-deal Brexit.

  1. The Brexit process

Following the triggering of Article 50 TEU by the UK, a two-year period of negotiations and preparations for Brexit started with an official leave of the UK from the EU being scheduled for 29 March 2019. As a result of the official notification under Article 50 TEU, the European Council (minus the UK) adopted ‘Guidelines following the United Kingdom’s notification under article 50 TEU’ at its Special meeting of the European Council (Art. 50) on 29 April 2017 and the ‘Guiding principles for transparency in negotiations under Article 50 TEU’ and the ‘Directives for the negotiation of an agreement with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union on 22 May 2017’.

After months of more difficult, complex and protracted negotiations than originally expected in the UK, the current Prime Minister Theresa May managed to bring home a “Brexit Deal” (referred to as the “May deal” in the UK press) consisting of a 585-page withdrawal agreement and a 26-page statement of the future relations between the UK and the EU.

The Withdrawal Agreement, a legally-binding document, includes mainly provisions on the financial settlement (how much money the UK owes the EU), the protection of the status and rights of EU citizens in the UK and the UK citizens in the EU27, and a solution for preventing the return of the physical border between the two Irelands.

The Statement, which is not legally binding, outlines the long-term relationship between the UK and EU in various areas such as trade, defence and security. In the (unlikely) event that the Withdrawal Agreement is signed off, it will take more years of further difficult, complex and protracted negotiations before we know what shape this long-awaited future relationship will finally take.

In parallel to the start of the negotiations with the EU, following the UK Government formal announcement in the Queen’s Speech on 21 June 2017 of the introduction of the ‘Great Repeal Bill’ with the view to allowing the UK to leave the European Union, the European Union (Withdrawal) Bill was tabled for its first reading in the House of Commons on 13 July 2017. After 272 hours of debate in both Houses of Parliament, the original Bill consisting of 19 clauses and 8 schedules increased in length to 25 sections and 9 schedules when it received Royal Assent on 26 June 2018.

The purpose of the European Union (Withdrawal) Act is primarily to:

  1. repeal the European Communities Act 1972 (as amended), which provided legal authority and direct effect of EU law in UK law;
  2. set the day (“exit day”) on which the UK exits the EU (originally 29 March 2019 at 11 pm), subject to possible modification owing to the ratification of the withdrawal agreement or agreed extension of the negotiating period;
  3. “renationalise” existing EU legislation by retaining it into UK statute book through a massive copying and pasting exercise of EU law adopted during the membership of the UK to the EU; and,
  4. as a result, authorise ministers to adopt statutory instruments to make the necessary changes to UK primary and secondary legislation more quickly in those areas where EU law will no longer be part of UK law (the so called “Henry VIII powers”).

Of particular relevance is Section 13 on Parliamentary approval of the outcome of negotiations with the EU, under which Parliament has been granted a stronger role in the ratification of the Withdrawal Agreement than under the normal procedure as set out in Part Two (Ratification of Treaties) of the  Constitutional Reform and Governance Act 2010. Under the procedure set out in Section 13, explicit Parliamentary approval for any agreement reached between the UK Government and the EU must be secured. As Section 13(1)(d) provides:

The withdrawal agreement may be ratified only if:

(…) an Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement.

Should have no agreement been reached by the end of 19 January 2019 (Subsection (7)) or at the end of 21 January 2019 (Subsection (10)), Parliament could then, under Subsections (8) and (11) respectively, scrutinise and express a view on the Government’s statement setting out how it would propose to proceed.

Holding its first ‘meaningful vote’ on 15 January, the House of Commons rejected the whole deal with 432 votes against and 202 votes for mainly on the ground that the deal would tie the UK to the EU indefinitely while having no say over EU rules and would put the UK in an even worse position than if the UK remained a Member States. MPs further rejected the deal on 12 March 2019 by 391 votes to 242 and on 13 March voted to rule out a ‘no-deal Brexit’.

Following Oliver Letwin’s amendment calling for Commons business to be set aside for a series of indicative votes on 27 March, MPs voted on 25 March to take control of the parliamentary timetable in an attempt to find a majority for any Brexit option. All eight motions offering alternatives to the Withdrawal Agreement, from No-Deal to Confirmatory Public Vote and including Customs Union, Common Market 2.0, Revoke to Avoid No Deal, EFTA and EEA, Preferential Arrangements and Labour’s Alternative Plan, were defeated on 27 March.

After the defeat of Government on a third ‘meaningful vote’ on 29 March 2019, MPs rejected four of the selected options above (Confirmatory Public Vote, Customs Union, Common Market 2.0 and Parliamentary Supremacy) on 1 April.

In parallel to those key votes, following the MPs’ approval on 14 March 2019 of the government’s motion instructing the government to request an extension of Article 50 TEU, the Prime Minister wrote a letter on 20 March 2019 to European Council President Donald Tusk, asking for an extension until 30 June 2019.

The EU27 leaders agreed at the European Council meeting of 21 March 2019 to grant an extension to 22 May 2019 provided the Withdrawal Agreement was approved the following week or 12 April 2019 if the Withdrawal Agreement were again rejected by the House of Commons, in which case it was expected ‘the United Kingdom indicat(ed) a way forward before this date for consideration by the European Council’. The EU27 also reiterated once more that there could be no opening of the Withdrawal Agreement agreed in November 2018.

However, as there seemed to be no sign of progress in the British Parliament at the end of March and early April, the Prime Minister wrote to Donald Tusk on 5 April 2019 to request a further extension to the end of June 2019. At the European Council meeting of 10 April 2019, the UK and EU27 agreed to extend Article 50 until 31 October 2019 (the so-called Halloween deadline).

In the meantime, the Prime Minister also initiated cross-party talks with the Leader of the Opposition in order to attempt to finalise a deal that would win the support of the House of Commons. Those talks collapsed.

These spanners in the clockwork have thrown the UK into further and greater chaos. Was this unpredictable and inevitable?

  1. Was Brexit unpredictable and inevitable?

On 10 November 2015, Prime Minister David Cameron sent a letter to the President of the European Council entitled ‘A New Settlement for the United Kingdom in a Reformed European Union’ and setting out the British Government’s goals as part of negotiations on the UK’s membership of the European Union in four designated areas: economic governance, competitiveness, sovereignty and immigration. As David Cameron wrote in his letter, these reforms aimed “to address the concerns of the British people over [the UK’s] membership of the European Union.”  After a few weeks of negotiations, the European Council adopted at its meeting of 18 and 19 February 2016 a decision concerning a New Settlement for the United Kingdom within the European Union.

In a Government’s White Paper entitled ‘The best of both worlds: the United Kingdom’s special status in a reformed European Union’, Prime Minister Cameron wrote in the foreword:

We have secured a new settlement to give the United Kingdom special status in the European Union. As this White Paper sets out, we will be permanently out of ever closer union, ensuring we can never be part of a European super-state. There will be tough new restrictions on access to our welfare system for EU migrants, so that people who come to our country can no longer take out before putting something in. And we have also secured vital protections for our economy, with a full say over the rules of the free trade single market, while remaining outside the Eurozone.

Our special status gives us the best of both worlds.

Yet, this was not enough. And he carried on saying:

(o)f course, there is still more to do. I am the first to say that there are still many ways in which Europe needs to improve. The task of reforming the European Union does not end with this agreement, and I will continue to pursue the further reform that Europe needs and which the British people still want to see.

In a strong position because of this New Settlement, he announced that he would “fulfil the commitment (he) made when (he) stood for a second term as Prime Minister”, that is to propose to Parliament that the British people decided its future in Europe through an in-out referendum on Thursday 23rd June.

The reaction of the continental press to the New Settlement was mixed notably noting that if “David Cameron won most of the concessions he was seeking from his European partners at the Brussels summit”, this was at the risk of compromising the European unity and that “the divisions and lack of solidarity among the member states have never before seemed so deep”.

Other papers, notably the Hungarian news website, whose headline read “Brexit: The eurosceptics don’t like the deal”, observed that David Cameron would still have to persuade the Eurosceptics within his own party that “the answers lie inside a reformed European Union” and that the UK would  “be stronger remaining in a reformed Europe than [it] would be out on [its] own because [it] can play a leading role in one of the world’s largest organisations from within, helping to make the big decisions on trade and security that determine our future.” (White Paper)

We now know that he failed to do so. Why is that? The answer to this question certainly lies in the way the British have always perceived themselves. The expressions “best of both worlds” and “special status” used in the title of the White Paper are indeed very revealing of the way the UK has always seen itself in its relationship with the European Union. Indeed, since the Fontainebleau European Summit of 25-26 June 1984, the UK successfully obtained the still in force budgetary rebate and since the Maastricht Treaty a variety of opt-outs regarding membership to the Eurozone and the Schengen area and relating to Part Three, Title V of the TFEU on the Area of Freedom, Security and Justice (See Article 10(4) and (5) of Protocol 36 to the Lisbon Treaty. The opt-outs from the original Justice and Home Affairs policy area (Third pillar) had been previously obtained in the Amsterdam Treaty of 1997 and retained in the Lisbon Treaty).

Britain’s belief in its exceptionalism and superiority based on an idealised vision of its past, has, as Scottish historian and writer Gerry Hassan put it, “become part of the foundation story of what it means to be Britain and British. To be different from our neighbours. To not be European in the same way.” Because of this past that it never left, Britain “never really joined the European project as that would have meant becoming something different.”

This would be echoed by Maurice Faure, a former minister in several French Governments, who with great foresight, wrote in 1982 about UK’s membership of the EEC:

We were all mistaken in the sense that when England knocked on the door of the European Community, the oldest Europeans thought it was proof that the Community was a success […] We were mistaken because England did not join to reinforce the Economic Community, she did so when she understood that there were fewer disadvantages for her to be inside than outside because, from inside, she could block decisions which she deemed hostile […] England has no notion of what the European Community is as we understand it, which really is the sharing of competences that we no longer can exercise effectively at the national level but that we can exercise in a far more efficient manner at Community level for reasons of size, of technique and of demography. (‘Les Enjeux: L’Europe Embourbée’ (1982) Administration 5).

He further lamented that the Community impetus and achievements were much dampened after the entry of the UK in the European Community, and regretted that the British issue was a difficult one to address as the Treaty of Rome did not provide for the possibility of expulsion of an EC Member State. Faure, who died in March 2014, would certainly have rejoiced at the decision of the British people to withdraw from the European Union.

The development of Euroscepticism in the UK, fuelled by a hostile tabloid press regularly publishing deliberately inaccurate and misleading stories about the European Union and by the emergence in the 1990s of the UK Independence Party (UKIP) combined with the “disappointment amongst many voters at the condition of post-war Britain, anxiety about change, and a fear of the future” (Hassan), have naturally contributed to their taking “refuge in an imagined version of Britain’s past” and, ultimately, to voting in favour of exiting the European Union. The writing of Brexit had always been on the wall.

Following the failure of the cross-party talks with the Labour party, the announcement on Friday 7 June 2019 by Theresa May of her resignation as Prime Minister and her replacement by Boris Johnson last July, the UK leaving the EU without a deal on 31 October has become the most probable scenario. This would entail that the UK will leave the EU without any clear agreements on the future of the relationship between Britain and the Union.

This leads us to the following question:

  1. What will be the potential consequences of a no-deal Brexit for the UK?

According to French Senator Christian Cambon, Brexit is a nonsense from the perspectives of globalisation, the economy and geo-strategy. One should add that Brexit is also a nonsense from a domestic constitutional and political one.

The anti-multilateralism policy of President Trump, the repeated affirmations and demonstrations of power by Russia and China and the many crises looming at the gates of the European Union should only drive the EU Member States towards greater unity rather than division, yet the UK chose to turn to and stare at its past. This is not a sustainable position and soon, if not yet, the UK’s influence in the world will be irremediably diminished.

Although the sudden collapse of the British economy foreseen by many to happen after the referendum did not materialise save for the drop in value of the British pound – which in a way was predictable since the UK would remain a member of the EU for the whole period of the withdrawal negotiations after the triggering of Article 50 TEU until such time the UK left the EU – one should not become complacent and underestimate the economic consequences of a no-deal scenario even if the British economy appears to be fairly resilient at the moment.

Economically, as Mr Barnier’s deputy Mrs Weyand put it, “for the UK, a no-deal would mean that a part of the regulatory and supervisory structure of the economy breaks away – a much bigger challenge’ than for the EU. Among the various consequences that will follow a “No-Deal” Brexit are the re-introduction of border checks, changes in the transport and trade procedures between the island and the EU, the question of the land border between the two Irelands, re-introduction of the roaming charges, and no transition period.

Contrary to what hard Brexiters, notably the members of the European Research Group led by Jacob Rees-Mogg MP, dogmatically believe, “falling back on WTO rules” is not going to rescue the British economy nor will the Commonwealth viewed as the new Eldorado and which represents only 8.5% of UK trade. Furthermore, the UK currently is at pain to renegotiate or roll over free trade agreements with third countries that have been concluded or are being negotiated by the European Union. Most recently, Canada has indicated that it would not roll over the Comprehensive Economic Trade Agreement between the EU and Canada (CETA).

While Brexit has not yet happened, the British economy is already feeling the pinch: the UK has already lost 1.5 percent of its GDP; 1000 billion Euros of liquid assets have already been transferred from the City to the continent; and the loss of financial passporting will have serious, if not disastrous, effects on a sector that constitutes 20 percent of the British economy.

While only one study conducted by Economists for Free Trade predicts that Brexit will provide a significant boost to the UK economy, the majority of studies

suggest the UK economy will grow more slowly after Brexit than it would do as a member of the EU, with those predictions ranging from a negligible cost to an 18% reduction in output in 2030 compared to a world in which the UK remained a member of the EU (G. Tetlow and A. Stojanovic, Understanding the Economic Impact of Brexit (2018 Institute for Government) at 4).

Such predictions would be worse should the UK and EU trade with each other on WTO terms.

Brexit is also a geo-strategic nonsense. In the era of continent-size States, the centre of gravity of international relations is definitively shifting towards the pacific; no one European State will represent more than 1 percent of the world population in 2050 and none of them – maybe with the exception of Germany – will be amongst the first 10 economic powers. In this context, no single EU State has an interest in seeing the EU breaking up. The UK is fully aware of this evolution and is more than ever interested in the European Union foreign and security policy, which is one of the paradoxes of Brexit.

Finally, Brexit is a nonsense from a domestic, political and constitutional perspective. As Brendan Donnelly, the Director of the Federal Trust, rightly suggests,

[t]he Brexit debate have already raised fundamental questions about the viability of both conservative and labour parties in their current form. The chaos of a no-deal will certainly come at a cost of great suffering and instability for the UK as a whole.

The catastrophic performance of both parties at the May 2019 local and European elections have confirmed Donnelly’s analysis. The resignation of Theresa May and the election of a new Prime Minister by the Conservative party will not change this outcome and there is no reason to believe that British MPs will be more able to make the fundamental choice about the UK’s political future with the imminence of the new Article 50 deadline than they were in March 2019. As Donnelly stated, “[a] cataclysmic Brexit might well make the necessary restructuring of British politics easier, but at the cost of making it infinitely more painful.”

More painful though is the possible dissolution of the United Kingdom in the face of Scottish and Northern Ireland separations (The possible dissolution of the UK has been discussed 9 years ago by the author in ‘L’Unité de l’Etat au Royaume-Uni: Continuité ou Evolution?’ in F. Lemaire (ed), De l’Unité de l’Etat (2010 Cujas Paris) 109, at 121-122 and 125). Since both in Scotland and in Northern Ireland the vote on the Brexit referendum was in favour of staying in the European Union, now the possibility of them organizing a referendum for their separation from the UK and application to become a member of the EU is extremely high (In the case of Northern Ireland, this process would be easier though as its reunification with Ireland would automatically attach it to the EU as was the case of the former German Democratic Republic following the German reunification). In the 2014 referendum on Scottish Independence the vote was in favour of staying in the UK mainly because that meant staying in the European Union. This time round the vote could be in favour of seceding from the UK because that meant joining the European Union as an independent nation. Thus, in the current set of events the wind is changing and Brexit could lead to more than just Britain leaving the EU and to its own dissolution. Yet, and frighteningly enough, this potential effect of Brexit does not seem to particularly worry Conservative party members who have indicated in a recent poll that they are ready to sacrifice the integrity of the UK (63% would rather Brexit took place even if it caused Scotland leaving the UK and 61% even if it meant Northern Ireland leaving the UK; See the recent YouGov poll of 18 June 2019).

Undoubtedly, future historians will analyse Brexit as the greatest challenge that the European Union had to face and deal with in its whole history. They will certainly ponder on the reasons why the fifth world economy decided to sever its ties with the biggest trading bloc in the world.

Brexit has been a painful process for both the UK and the EU primarily because it is based on an irrational decision made by UK voters in total ignorance of its full consequences, and a complete mismatch between expectations and reality. What mostly characterised the Brexit process is the extraordinary lack of preparedness on the part of the British Government and political class and the overestimation of the UK’s capacity to negotiate with the EU (“The EU needs the UK more than the UK needs the EU” was a classic Brexiters’ motto before, during and after the 2016 referendum). And despite the efforts of negotiators on both sides to reach an agreement leading to an orderly Brexit, the UK Parliament’s incapacity to decide the UK’s future relationship with the EU has led to an impasse that is most likely to end up in a no-deal Brexit. At the time of writing, there seems to be no escape from this state of affairs: a possible reversal of Brexit through a unilateral revocation of the Article 50 notification of the intention to withdraw from the EU (See Case C-621/18, Andy Wightman and Others v Secretary of State for Exiting the European Union ECLI:EU:C:2018:999, in which the CJEU ruled that article 50 TEU allows a Member State which has notified the European Council of its intention to withdraw from the EU “to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements” (para. 75)) cannot be contemplated in the current political context; nor can be a second referendum if Parliament provides the legislation for holding it and the Commons support it as the Labour party leadership is unlikely to endorsed the idea; it is also very unlikely that another Article 50 extension beyond 31 October 2019 will be granted by the EU27, let alone a renegotiation of the Withdrawal Agreement.

Britain may have shown over decades that it is capable of surviving all kinds of challenges and it seems like the Brits themselves are not that worried about their future. Whatever comes their way, they face it with a brave face and lots of humour in their arsenal.

Yet, they will need more than a lot of humour to face whatever tidal wave is going to hit them.

Like the Titanic, the UK is not unsinkable.

“The United Kingdom: Chronicle of a Dissolution Foretold” will be the next story to tell.

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