The first strategic move on the part of remainers, having lost the Brexit referendum, was to start an entirely new and paralysing debate, the ‘which Brexit debate?’ Before 23 June 2016 I had never heard the terms ‘hard Brexit’ or ‘soft Brexit’ and yet since then have been subject, along with the rest of the country, to endless pontificating on the distinctions between the two. The sense has been that obviously there were always two Brexit options which immediately problematises the referendum because it did not ask people, which one. Do you want a soft Brexit with a deal along the lines of EEA membership/the Swiss model, or should we go for a hard Brexit, without a deal?
It was a genius move on the part of the remain establishment not least because the term ‘hard Brexit’ lent itself to easy classification as a ‘hardline’ position, singularly ill-suited to the British temperament. The public debate was thrown into immediate confusion that still clouds discussions as we now reach the ten-year anniversary of the vote.
In deploying this tactic, the remainers had some good sounding constitutional arguments on their side. In the first instance, the point was made that, as in the case of the Alternative Vote referendum, Parliament could have chosen to define the precise legislative proposition in advance and then asked the public to vote on it. Had it done so there would be nothing to debate about what Brexit was, but Parliament made no such provision.
In the second instance, in a context where surely what mattered most to Brexiteers was throwing off the shackles of the 1972 European Communities Act and restoring the sovereignty of Parliament, it was important to remember that within the British constitutional settlement referenda are only ever advisory. It was, therefore, now for our parliament to decide whether and how to take the public’s advice.
These propositions afforded remainers the opportunity to both demonstrate their apparent commitment to the sovereignty of Parliament and reasonableness by making two further points. First, they said that while referenda are advisory, they felt that Parliament should choose to use its sovereignty to take the referendum’s direction and trigger Article 50. Second, however, given that there was no legislative definition, and no clarity about whether the people had voted for Brexit with a deal or Brexit without a deal, the provision of this definition was now plainly the task of Parliament.
In this context the suggestion by Brexiteers that the period 2016 to 2019 involved a remain Parliament trying to sabotage the Brexit vote was, in the remain establishment view, not only a nonsense but a nonsense that ironically betrayed an extraordinary disregard for the very thing that Brexiteers were supposed to hold most dear, the sovereignty of Parliament.
It is the contention of this article that while this argument sounds persuasive, it is profoundly disingenuous because it involves suggesting that the Brexit proposition could have a potential breadth of meaning that was not, and is not, remotely credible. Far from being a theoretical abstraction that needed filling out, Brexit grew, in the very best Burkean tradition, out of a rootedness in the particularity of our national story.
As numerous scholars have demonstrated, there is no great mystery about the UK’s difficulty with European integration and why our approach to it quickly earned us the sobriquet, ‘the awkward partner.’ From the Schuman Declaration onwards, European integration has been distinctive in seeking legitimacy through the technocratic approach to government espoused by the French Fourth Republic, which is entirely alien to the DNA of the UK political tradition. Indeed, the mismatch between the UK political tradition and that of European integration was so striking that rather than slowly becoming apparent it was immediately obvious to Britain’s political leaders from 1950.[1]
Harold Macmillan told the Council of Europe in 1950 that British membership of the Coal and Steel Community (the first supranational institution created in the EU project) was out of the question. He said: ‘Fearing the weakness of democracy, men have often sought safety in technocrats. There is nothing new in this, but we have not overthrown the divine right of kings only to fall down to the divine right of experts.’[2] Then in 1952, when receiving an honorary degree from Columbia University, Anthony Eden said: ‘If you drive a nation to adopt procedures which run counter to its instincts, you weaken and may destroy the motive force of its action…You will realise that I am speaking of the frequent suggestion that the United Kingdom should join a federation on the continent of Europe. This is something which we know, in our bones, we cannot do…’[3]
Lest anyone should doubt the extent of the problem arising from the mismatch between the political DNA of the UK constitutional tradition and that of the EU, it is at this point helpful to zoom out from the reflections of specific politicians to consider a leading academic assessment of the different approaches to democracy in the world today. Prof Arend Lijhart, one of the most distinguished scholars in the field of comparative democracy, provides a conceptual framework for understanding democracy which he sets on a spectrum between one pole, which he calls ‘representative democracy’, and another pole, which he calls ‘consensual democracy.’ The purpose of democracy across this spectrum is to provide governments with legitimacy but the basis for that legitimacy runs from, depending entirely on having a mandate by means of representing the people, at the representative democracy end of the spectrum, through to arrangements where legitimacy arising from election is complemented by the determinations of experts at the consensual end of the spectrum. While ‘the people’ always remain the dominant consideration in systems defined by the ‘representative democracy’ pole, the provision of expertise, and the rules regarding the application of that expertise, play a key role in systems defined by the ‘consensual democracy’ pole.
What is particularly striking about this approach for our purposes is that Lijhart argues that the polity providing the clearest expression of representative democracy, the ideal type of ‘representative democracy’ at one end of the spectrum, is the United Kingdom, while the polity providing the best example of ‘consensual democracy’, ‘the ideal type of ‘consensual democracy’ at the other end of the spectrum, is the European Union. In other words, it makes complete sense that the UK should have found both the prospect and experience of EU membership very difficult because the democratic political traditions of the UK are not just different from those of the EU. They give effect to its polar opposite.
By 2016 the procedural problems with membership that we knew in our bones in 1952 we could not ignore, found clear expression in our ‘the democratic deficit’ critique of the EU. First, the executive in the EU was run by the unelected Commission, with an exclusive power to initiate legislation. Second, although we were represented in the Council of Ministers and the European Parliament, we could be overruled by majority voting and, to make matters worse, the Council met in secret. Third, we were subject to the European Court of Justice, which was effectively a foreign court that dispensed law in the Roman Law rather than our Common Law tradition. In this the principal rationale for Brexit was to ‘take back control’ and make our own laws in a manner that was accountable to our own democratic traditions. It was in this context that public dissatisfaction with EU membership grew and grew, ultimately resulting in the 23 June 2016 referendum.
Thus, when the Brexit proposition of 2016 is considered, we must not approach it as a rootless abstraction, but as a practical attempt to address the actual presenting difficulty associated with membership arising from the fundamental mismatch between the UK political tradition, and its approach to democracy, and that of the EU, which resulted in both the pressure for the referendum and the leave vote. In this context, there was/is no scope for a Brexit deal that left/leaves any aspect of the democratic deficit in place, and thus no basis for parliamentarians pursuing a so-called ‘soft-Brexit’ EEA, Switzerland or Chequers relationship with the EU going forward because rather than addressing the underlying problems that resulted in the Brexit vote, such arrangements inflame the presenting difficulty. Far from facilitating ‘taking back of control’, this ‘soft Brexit’ actually makes ‘Brexit’ absurd because it would obviously have been better to remain in the EU and protect the limited control we exercised in the making of the laws to which we were subject through membership of the Council of Ministers and European Parliament, than to give up representation in these bodies while agreeing to continue to be subject to their laws. From the perspective of taking back control this outcome in completely unsustainable, one must logically either go back to the EU to negotiate a proper Brexit or to seek to rejoin.
Mindful of these realities it is not surprising that Parliament voted against the effective attempt to sabotage Brexit through the Chequers Deal not just once but three times. Although it would have been possible to leave with a deal, so long as it was consistent with Brexit, it was by then clear to the new Johnson Government that the EU was playing hard ball and that this was not an option and so it pursued a ‘no deal’ strategy. Had this been secured then the whole UK would have left the EU and we would have taken back control and been free to make our own laws, no doubt sometimes generating legislation similar to that of the EU, and on other occasions generating very different legislation, but in every case doing-so ourselves rather than having legislation imposed on us by the EU. In the event, with the Chequers dead and ‘no deal’ off the table, the Government was then pressured into accepting another kind of fatal, Brexit sabotaging arrangement which was in some ways worse than Chequers because it not only involved: i) making Brexit an absurdity in one part of the country but also ii) the confounding of Brexit as an initiative to reassert our sovereignty, by means of acquiescing with the partition of the UK.
It is important to consider both these elements in turn:
In the first instance, Northern Ireland bore the weight of the ‘soft Brexit’ profile of this new ‘solution’. To be clear this is not a case of Great Britain gaining Brexit, taking back control to make the laws to which GB is subject, while Northern Ireland remained where it was pre-Brexit. It is instead a matter of Great Britain taking back control and advancing in relation to Brexit in return for Northern Ireland being required to give far more control away than that which it enjoyed pre-Brexit. At least when we were in the EU every part of the UK had a voice in the making of the laws to which it was subject (even though some of our votes could be overruled ) but now part of the UK is subject to EU law and has no voice in the legislature making the laws to which it is subject. Thus, the so-called soft Brexit has resulted in part of the UK effectively securing Brexit in return for another part effectively being made a colony of the EU.
In the second instance, there is no precedent for a sovereign state bowing to pressure from other countries to allow them to divide it in two. However, Northern Ireland is subject to, among many other pieces of EU law, the EU Customs Code which declares that Great Britain is a ‘third country’, that is a foreign country, in relation to Northern Ireland, alienated from the rest of the UK by the imposition of an international SPS and customs border. Crucially, this arrangement is not just bad for the UK if you live in Northern Ireland, but for the whole UK. We are not talking about a far-away country of which we know nothing being cut in two in order to placate 27 other countries, but of our own country being cut in two for this purpose. There is a critical sense in which the EU provided greater acknowledgement of the sovereignty of the UK when we were in the EU than they do today because at least during that time they always respected the territorial integrity of the UK. Today by contrast the EU now seeks to actively unbundle our territorial integrity as a nation, both: i) by means of passing multiple pieces of legislation deconstructing the economic foundation of the UK, the UK Internal Market for Goods, placing NI increasingly in the Internal Market for Goods of another country and also ii) as they enforce that division by means of imposing the international SPS and customs border, cutting the UK into two.
The Johnson Government persuaded unhappy Conservative MPs to vote for this arrangement on the basis that the Northern Ireland arrangements were only temporary. The whole United Kingdom would leave the EU soon enough. Northern Ireland would just leave a bit later than Great Britain. This thought was, however, completely dashed by the premiership of Rishi Sunak whose Windsor Framework concreted in the partitioning of our country, suggesting that it was fine to make these extraordinary arrangements permanent.
However, as we reach the ten-year anniversary of the Brexit referendum, there are now clear signs that the partitioning of Brexit is no more sustainable for Great Britain than was the Chequers deal. Far from providing a better approach to Brexit than Chequers for GB, the NIP/Windsor Framework is creating very significant divergence problems that, in accordance with the neo-functionalist logic of European integration theory, are generating internal contradictions that can only be resolved by the rest of the country now aligning with EU law.
Although it still has not been published, the very first Bill mentioned in the Kings Speech in May was the European Partnership Bill. The Government’s explanatory notes on the Bill, accompanying the Kings Speech, are detailed and make it plain that the purpose of the legislation is to formally subject Great Britain to dynamic alignment with EU law, as per the EEA, Swiss, Chequers and Northern Ireland models. The Bill will make provision for this arrangement, beginning with three areas: Sanitary-Phyto-Sanitary (SPS) Legislation, an EU-UK Emissions Trading Scheme and rejoining the EU Single Electricity Market, while also providing ministers powers to add in additional areas going forward.
There is no doubt that the remain sympathies of the current government are such that it wants to do everything it can to hasten the return of the UK to the EU and so they would be looking to try to justify something like the European Partnership Bill even if the whole UK had left the EU in 2021. However, in seeking to justify this project, acutely aware of the vulnerability of their argument to the accusation that such an approach disrespects the Brexit referendum, the Government is now keen to draw on an additional and apparently entirely different line of argument. Specifically, the European Partnership Bill is good for the union because it mitigates the very significant problems created by the imposition of an international border cutting the UK into two. In this it is important to understand that each of the three provisions with which the European Partnership Bill is being front-loaded are significant for tackling the profoundly disruptive effect of the EU’s partitioning of our country.
While the SPS component will not remove the division of the UK into two through an SPS border, it will make provision for the alignment of GB SPS law with EU SPS law so that the SPS border that cuts the UK into two will cease causing border friction for people trading goods from GB to NI. Meanwhile the creation of an EU-UK Emissions Trading Scheme will, in submitting the whole UK to EU emissions legislation, remove the need for the division of the UK by a highly disruptive, carbon border. (This should have cut the country into two from 1 January this year, but it would seem the EU has agreed not to press this in the context of negotiations to submit the whole UK to EU emissions trading laws.) Finally, the proposal that the whole UK rejoins the EU Common Electricity Market, will remove the ‘Wholesale Electricity Irish Sea Border’ which means that since 2021 electricity has only been able to move from Great Britain to Northern Ireland subject to, among other things, border fees mandated by Commission Regulation (EU) No 838/2010 which (in tandem with other border generated inefficiencies) mean that electricity in Northern Ireland is now a full 20% more expensive than electricity in the rest of the UK!!
The truth, however, is that these problems are the result not of Brexit but the partitioning of Brexit and its denial to part of the UK. The answer to the presenting difficulty, therefore, is not to try and make the border problems go away by aligning GB with EU law and hope people forget about the Brexit Referendum, but rather to complete Brexit so that it applies to the whole country. Moreover, and as unionist politicians Jim Allister, Nigel Dodds and Kate Hoey have all pointed out, nothing in the European Partnership Bill changes the fact that the UK will continue to experience huge border frictions as a result of the imposition of the international customs border or indeed remove the SPS border. Furthermore, anyone who thinks that the answer to problems arising from sabotaging Brexit in Northern Ireland, such that rather than being afforded the opportunity to take back control and make our own laws we are instead required to give far more control away, is that Brexit should be similarly sabotaged in Great Britain (such that rather than being afforded the opportunity to take back control and make our own laws we are instead required to give more controls away submitting to laws in the generation of which we have no vote whatsoever) has completely lost the plot.
The truth is that whether presented with a ‘soft Brexit’ in Chequers, or in the Northern Ireland Protocol/Windsor Framework working in tandem with the European Partnership Bill, what we are forced to confront is the fact that the language of ‘soft Brexit’ is a nonsense, as is the language of a ‘hard Brexit’.
As we mark ten years since the Brexit vote, the United Kingdom faces a clear choice: are we prepared to continue to allow Brexit to be sabotaged and confused by talk of hard and soft Brexit? Are we prepared to continue to acquiesce in the pretence that an outcome that transparently sabotages Brexit, even to the point of partitioning our own country, can be deemed to have given valid expression to Brexit and the reassertion of UK sovereignty?
In responding to this question ten years on from 23 June 2016, we should also revisit the question on the ballot paper.
‘Should the United Kingdom remain a member of the European Union or leave the European Union?
1) Remain a member of the European Union
2) Leave the European Union’
No one who voted leave in the biggest democratic vote in our history voted for Wales to leave the EU, because that was not on the ballot paper. No one who voted leave in the biggest democratic vote in our history voted for England to leave the EU, because that was not on the ballot paper. No one who voted leave in the biggest democratic vote in our history voted for Northern Ireland to leave the EU, because that was not on the ballot paper. And no one who voted leave in the biggest democratic vote in our history voted for Scotland to leave the EU, because that was not on the ballot paper.
Every single one of the 17.4 million votes cast, regardless of where in the UK they were cast, were votes for the United Kingdom to leave the EU, something that 10 years only still has not been delivered.
Happily, there is a mechanism for securing the proper delivery of Brexit before Parliament, and in terms that refuse to engage in the sophistry peddled by talk of a hard or a soft Brexit.
Developed and introduced by Jim Allister in the last session, the European Union Withdrawal Alternative Arrangements Bill came fifth in the Lords Ballot in May where it is sponsored by Nigel Dodds, Lord Dodds of Duncairn.
It provides a constitutional basis for delivering a sustainable Brexit for the whole UK.
Empowered by the opportunity presented by this legislation, it is now time to ‘Get Brexit done.’
[1] Vernon Bogdanor, Britain and Europe in a Troubled World, New Haven and London, Yale University Press, 2020, p. 121.
[2] Vernon Bogdanor, From the European Coal and Steel Community to the Common Market, Gresham College Lecture, 12 November 2013.
[3] https://libquotes.com/anthony-eden/quote/lbp1u0e
Given his response in 1950, it is interesting to note that Harold Macmillan did not apply to join the European project 11 years later because he had changed his mind about the fundamental difficulty. As his diaries and letters demonstrate, Macmillan finally applied to join because he felt that the best efforts of the UK to lead Europe away from supranationalism to intergovernmentalism during the ‘50s had failed and, notwithstanding the problems expressed in his 1950 objections, he could not contemplate the UK aspiring to anything other than a leading role in the affairs of Europe after the centrality of our wartime role, especially in the context of US pressure to join. Macmillan wrote the following in his diary in 1960: ‘Shall we be caught between a hostile or at least a less and less friendly America and a boastful and powerful empire of Charlemagne, now under French and later bound to come under German control. Is this the real reason for joining the Common Market if we are acceptable and for abandoning the seven, abandoning British agriculture and abandoning the Empire. It’s a grim choice.’ Vernon Bogdanor, From the European Coal and Steel Community to the Common Market, Gresham College Lecture, 12 November 2013.
