THE CHAOS OF NO EXIT FOR BREXIT IS THE PRICE OF POLITICAL GLUTTONY ON ALL SIDES.
Franklin Dehousse
Professor of international economic and EU law. Many experiences in various universities, business and EU institutions.
To simple minds four things were quite clear after the 2016 Brexit referendum. Legally, dismantling such a huge amount of legal connections could only be done progressively. This was anyway required by Article 50 TFEU, which distinguished clearly the withdrawal agreement to settle the problems of the past and the posterior agreement about the future relationship. Politically, Brexit had to be implemented in one way or another, otherwise cries of conspiracy, deep state, and perversion of democracy would multiply. However, the sharp referendum result (52/48) could only legitimize the mildest sort of Brexit. This is what had to be prepared. Naturally, all governments immediately began to …. deny those conclusions
Theresa May was a closet Remainer who had rather cowardly hidden during the whole referendum campaign to protect the next steps of her career. To become Prime minister, she needed to offer something to the Brexiteers’ majority in the Tory party. She took Johnson, Gove, Davis, Leadsom, Patel in the government. Under the senseless formula “Brexit means Brexit”, she hid a hard Brexit. From her first speech, the red lines were clear : no free movement of people, no European Court of Justice, no budget contribution. This meant unequivocally no single market and no customs union. The Brexiteers’ chorus was ecstatic. After their unexpected success, they lost all carefulness : hard (or No Deal) Brexit had become the destination, and May the instrument. Later, a part of the Remainers woke up and decided the referendum was not constraining. Since then, polarization has been growing in the United Kingdom, and wise minds pleading for compromise (like Boles, Kinnock, Duff…) have been pummelled from all sides[1].
On the other side of the Channel, the other Member States also adopted a maximalist position. First, they demanded to maintain eternally EU rules and Court for EU nationals in the UK. There was little consideration for the right of withdrawal. Later, the EU-27 became somewhat more flexible, but then it decided that some topics of the future had to be settled in the withdrawal agreement. This concerns a) the Northern Ireland backstop and b) geographical indications. These topics were poison pills for the negotiation. Legally, nothing distinguishes border checks in Northern Ireland from others, and geographical indications from other intellectual property rights. Politically, there was no need for immediate solutions, since a transition period allowed the negotiation of the future relationship. And there were many alternative ways to guarantee the implementation of the Good Friday agreement in Northern Ireland. Power, however, makes most politicians gluttons. So they decided this was totally fundamental – which is false. The confusion between the settlement of the past and the future relationship has henceforth brought an enormous misunderstanding in the Parliaments and the public. Everybody wastes a lot of time to discuss the model of the future whereas it is not covered by the withdrawal agreement, which meanwhile only becomes more difficult to defend[2].
All this did not help the soft Brexit outcome. Last but not least, the EU has made here a golden present to Brexiteers and populists of all kinds : a narrative of sabotage (that is already appearing). Though politicians manage the short term - even the very short one now -, the present events will be debated and used during decades. Article 50 TEU was created to offer the Member States a right to exit. If the UK finally stays in this context, this narrative will haunt the EU (and the UK) later.
After having again wasted precious months, more than three years after the referendum, what are we discussing about during the latest nights ? The thousand ways to accommodate a customs regime at Northern Ireland borders, and to connect it with the other customs borders of the EU. The last find in this treasure hunt : “Northern Ireland would be in one customs zone de jure and another one de facto”. No wonder : this is the perfect setting to accumulate legal mistakes, and more political problems along the road. All this prepares another postponement, that is going again to leave the life of millions and the economy in limbo.
What could have happened is a fascinating question. What if Theresa May had chosen to defend her country rather than her ambitions ? If Brexiteers had understood that their favorite project had to go through the airlock of soft Brexit rather than risking the whole venture (and their reputation) ? If Remainers had accepted to implement the referendum provided this led exclusively to soft Brexit ? If the EU had provided unilateral guarantees to Ireland and postponed the customs problems of the Northern border to the negotiation of the future relationship. We could be sailing now into a very different negotiation. Compare this with the enormous human, economic and political costs that have already been supported. (status of residents, investments, jobs, innovation, polarization, hate speech, …). In that context, it has been largely forgotten that economic previsions since 2016 have repeated that the economic costs of soft Brexit were more or less… nothing. One doesn’t need to be a rocket scientist to compare with the present situation.
All the more since this saga can only provoke more damage in the future. On the British side, no possible outcome (election, referendum, No Deal Brexit, No Brexit) will bring a quick closure now. On the EU side, whatever happens now, uncertainty and endless debate will remain the order of the day (how many European Councils already wasted in 39 months ?). Meanwhile, costs will still rise. No Deal Brexit could be a heart attack, but negotiating without end looks more like a slow cancer now.
By senselessly overloading the boat, the so-called European “leaders” on all sides have in fact led us to the desert of neverending Brexit. If you loved the first seasons of the Brexit series, you’ll enjoy the coming ones, because this damaging saga is now far from over.
[1] More on this :
https://www.dhirubhai.net/pulse/sun-tsu-brexit-how-brexiteers-turned-total-strategic-mess-dehousse/
[2] More on this :
Franklin DEHOUSSE
Professor of law
Former representative of Belgium in EU negotiations
Former judge at the Court of Justice of the EU
Accredited Pension Actuary, Aktuar SAV, A.S.A.
5 年It was going to be never-ending anyway. We, on the continent as well as on the isles, are much too close, much too linked, too complementary to ever stop interacting. The aberration is to pretend we could stop talking to each other, this talking will only intensify. Everything Brexit is such a pitiful intellectual concoction that it will be purged from this earth in the way communism fell in Eastern Europe. I disagree with you, FD. I think there is no shortcut to sorting it all out. There is only the hard way, through the thick of it. It's productive to wrangle. Prejudice will be worn down or die out after a generation or two. To keep the ball in play is good for everyone, to abet all this sillyness and trying to cut short only inflates politician's egos. And if - heavens no - they all really got their act together and ratified the present deal, it will change nothing. As of tomorrow, they will start discussing again. Whichever way this goes - the logic of staying together and to integrate will collect us all in the end. And speaking of prejudices: The blond mop in No 10 is absolutely not my type. Well - sure enough, I did not have an occasion to talk to him yet, ..