Review of “Britain Alone! The Implications and Consequences of United Kingdom Exit from the EU”

Review of “Britain Alone! The Implications and Consequences of United Kingdom Exit from the EU”, edited by Patrick J Birkinshaw, Andrea Biondi (European Monographs 96, Kluwer Law International: 2016, hard cover, ISBN 978904115832, 376 pages, £ 100.00)

Matteo Negro, LLM Candidate, King’s College London and Luigi Lonardo, PhD Candidate, King’s College London

“Heavy fog in Channel. Continent cut off.

The London Times, headline, 22 October 1957

Introduction

David Cameron has described UK’s Brexit vote as a “once in a generation” decision. The implications of such a decision indeed deserve the full attention of citizens – and all the more so of scholars and practitioners. In this context, the publication of “Britain Alone! The implications and Consequences of United Kingdom Exit from the EU” (Kluwer Law International, 2016, 376 pages), edited by Professors Patrick J. Birkinshaw (Hull University) and Andrea Biondi (King’s College London), is a timely and welcomed publication. It contributes to the public and academic debate, analysing in detail the impact of a Brexit scenario on the UK’s legal system. It explains the legal difficulties of an “open sea” [1] political choice and swipes away the simplicity of some Leave rhetoric.

Since the origins of the European Communities in the 50s, the relationship between Great Britain and European institutions has been at best uncertain, at worst agonising.[2] Many British leaders and governments have since been confronted with the question of the UK stance towards Europe. Their response has never been definitive.

After many years of problematic negotiations with France (De Gaulle twice vetoed British membership), in 1973 the Conservative PM Edward Heath finally managed to bring Great Britain in the single market. However, in 1975,the Labour PM Harold Wilson organized a referendum to certify the in or out status. It was a real novelty for the UK as a popular consultation of that kind had never taken place before. The Conservative Party led by Margaret Thatcher was favourable to the European Economic Community.[3] On that occasion the “remain” camp won with 67.2% of the votes and the issue was settled for a while.

In 2015, history repeated itself. The Conservative party, during the campaign for general election in 2013, pushed for a revision of British participation to the Union and promised a subsequent referendum in case of election. Having been elected, the Conservative party is now keeping its promise. This time round, unlike in 1975, the anti-EU narrative spins around two axes: the institutional malaise that is said to beset the EU, and the substantive power that is wielded by the EU and whether this is warranted. This very narrative underpins the legal analysis contained in the book and is particularly challenged by Professor Paul Craig (Oxford University) in his chapter “Responsibility, Voice and Exit: Britain Alone?”.

The main issues of contention were expressed by PM Cameron in its Chatham house speech of November 2015.[4] They concern UK sovereignty and its political participation in an ‘ever closer union’, the economic governance of the euro and the risks for Great Britain, competitiveness and ‘cut red tape for business’, and social benefits and free movement. In February 2016, PM Cameron reached a deal with the European bodies and the other Member States on the status of the UK in these key areas should it vote to remain in the EU. After reaching the deal, David Cameron has announced the referendum to be held on the 23rd of June 2016.

The book

The text is based on a series of presentations delivered at the Senate House University of London in May 2014 during a conference on Brexit, organised by the Centre of European Law of King’s College London and the Institute of European Public Law of Hull University. The speeches included in the book have been updated – the volume takes into account developments until the 17th of December 2015 – and many contributions have been added.

The book is divided in two main parts. The first one, entitled “Constitutional issues”, deals with the constitutional effects of a “Brexit”, both in terms of sovereignty and devolution. The second, “Managing Alone”, concerns the various legal problems that Britain should tackle in a withdrawal scenario, namely what are the various instruments and possibilities available for Westminster to accompany the country through the transition period and beyond, in determining its new relationship with Brussels and the Continent.

In the first part of the book, two main issues guide the analysis in the five chapters: the idea of evolution of sovereignty as influenced by the European legislation and the risks of disunity related to Scotland, Wales and Northern Ireland.

In their chapter, Professor Birkinshaw and Dr Varney discuss the legacy of the British membership to the EU in terms of UK constitutional and public law. They argue that the concept of sovereignty as implied in the British tradition – i.e. the idea of full power recognised to the Parliament – has changed under the European influence. The 1972 European Communities Act, the Court of Justice of the European Union and, to some extent, the European Court of Human Rights, have contributed to the qualification of legislative sovereignty. The accession to the European Economic Community has meant a limitation of Parliament’s supremacy, given the role played by the ECJ jurisprudence and its principles of primacy and direct effect. It is said that it was the Factortame decision[5] – seen as a revolution – that revealed the scope of European law: not only must domestic court disapply domestic legislation contravening European rules, but they also have to fashion the application of remedies against the Crown.

The two authors expose clearly the most sceptic point of view relating to the new idea of sovereignty, going through some of the most polemical judgements and opinions. What they contend in respect to these assessments is their short-sighted and negative character: the European Union does pose limitations to the Parliament – limitation upon which the Parliament and the Government have agreed – however, the notion of sovereignty has changed and the development of the EU legal order  – namely through legislation, cases and principles – has helped in this process. At present, according to Birkinshaw and Varney quoting LJ Laws, sovereignty has to be researched in the conditions under which power is exercised, not in the exercise itself.[6]  The academics want to underline the fact that EU law has improved the Common law constitutionalism and helped to bring out the catholicity of the common law.

As regards the impact of Brexit in terms of internal devolution, a certain concern emerges from the volume, relating to the territorial integrity of the United Kingdom. The most troublesome situation is the Scottish one. Professor Tierney and Dr Boyle analyse the probability of a new independence referendum in case of Brexit and focus on the potential issues arising from an accession of independent Scotland to the EU. In their opinion, the EU would not politically oppose to this new integration. Their chapter deals with a clear explanation of the legal instruments that would be employed to achieve such an aim.

In the case of Northern Ireland, a withdrawal from the EU would mean, on the one hand, an increase in devolution, given the intensity of EU legislation in dealing with NI policies, on the other, more frustration in a political sense, given the augmentation of veto opportunities – a direct derivation of the consociative system governing the region.

Finally, it is argued that the impact of Brexit for Wales is unlikely to be positive. Dr Mike Varney stresses that power would not increase if the EU leaves the UK, while also drawing attention to the reduction in funding for Welsh regional policies, resulting from a cut off of EU finances.

Professor Craig’s chapter criticizes the assumptions underlying the pro-Brexit argument. The EU is denounced because, as the argument goes, it is flawed and non-democratic. The democracy deficit critique is presented as a critique of the EU. However, Professor Craig maintains that there is a constitutional responsibility of the Member States in this situation. Even conceding that the EU is ill, it is not exclusively the EU’s responsibility. The Member States, including the UK, conceived and created the current situation through a constitutional history of several Treaty amendments. The same holds true of the competence (ie the powers) of the EU. The Member States themselves agreed to extend the range of powers given to Brussels – and the picture of EU institutions arrogating powers to themselves, though it may be true to some extent, bears little resemblance to reality. The UK civil service conducted an extensive review of competence, which generally found that EU competence was pitched at about the right level. In his Chatham House speech, however, PM Cameron made clear what powers the UK does not want the EU to enjoy. This was the subject of the re-negotiation agreement concluded in February 2016. Overall, this chapter thus offers a poignant critique of the grounds on which the euro-sceptic argument lies. It puts forward a rhetorical question: given the shaky foundations of the requests, is it worth risking a Brexit? This would be a potentially disruptive outcome for both Unions, the EU and the UK.

The second part of the book deals extensively with how substantive policies and areas of law would be reshaped if the UK voted to leave the EU. The eleven chapters in the second part of the book take into account key areas of the political and academic debate.

The chapter by Jean-Claude Piris, the former Director General of the legal service of the Council of the EU, synthesises brilliantly all the legal solutions available for the UK, in case of a rupture with the European Union. Assuming that the timing for a withdrawal agreement (WA) in accordance with Article 50 Treaty on the European Union would exceed two years given the complexity of the matter at stake, and comparing the unsatisfactory models of Switzerland and Norway, both of them in different terms with the EU, the “open sea” choice would be complicated. Either the UK would agree to accept a certain amount of validity of some European norms in case of a WA for access to the common market or it could negotiate commercial treaties, sustaining great disadvantages due to its position of weakness in relation to the entire Union. To avoid a Brexit, Piris suggests compromises in political terms that are quite similar to those on which the UK Government and the EU have agreed on the 17th and 18th of February 2016.

In the Chapter “The UK and the World: Environmental Law”, Ioanna Hadjiyianni considers that, in case of withdrawal, the UK would not be able to exercise regulatory influence over third-country practices. The role of the EU in global environmental governance, though complex, is nonetheless invaluable and offers benefits to the UK. Unilateral UK action – ie, from outside the EU – may instead not be an effective tool to achieve environmental protection goals.

Maria Kendrick, in the chapter on “Judicial Protection and the UK’s Opt-Outs”, discusses the tools available to the UK to avail itself of “flexible integration”, an opportunity foreseen by EU primary law in determinate policy areas. The main contention of the chapter is that flexible integration should be used to judicially protect interests of Member States, even when they “opt-out”, as the UK often does, from certain fields of regulation. This mechanism would be beneficial, in the long run, for the Union and for Member States. But in order to fully benefit from the “opt-outs” and from flexible integration, the UK needs to become proficient at utilising the system of judicial protection before the CJEU.

The Chapter “From the EU Citizens to Third-Country Nationals: The Legacy of Polydor”, written by Marja-Liisa Öberg, shows that the case law of the CJEU makes it difficult to draft a hypothetical UK-EU agreement which gives the same rights to UK citizens as those currently enjoyed by EU nationals. This is  because third country nationals are conferred rights and obligations in the EU Internal Market which are equal to those enjoyed by EU citizens under the Polydor[7] doctrine. This case decided by the CJEU demonstrates that identical wording of provisions contained in the EU Treaties and in international agreements does not automatically entail uniformity of interpretation. Same interpretation of identical wording is only granted when the two treaties have equivalent “objectives and context” (as happens in the case of European Economic Area Agreement, and not, for example, in the case of EU-Turkey association agreement). The difficulty for the EU as a third country would be to pre-determine the equivalence of objectives and context of its association agreement to EU Treaties.

In the chapter on social policies, Aileen McColgan suggests that, though much of the UK’s discrimination legislation has developed organically rather than being transplanted from the EEC/EU, any departure from the EU would pose significant threat to its existence and, in particular, its efficacy. The author casts doubt that provisions on social policies would survive UK exit from the EU. This is because the Conservative Government might remove any elements of discrimination law which are seen as business-unfriendly.

Professor Andrea Biondi, in the chapter “State Aid Control, Government Spending and the Virtue of Loyalty” takes a slightly different approach by considering why Member States benefit from the centralisation of some policy areas. He argues that in the field of State Aids, only a supranational model is able to deliver efficiency, transparency and equality of position between the different parties: in his formulation, it is “worth leaving it to the EU”. Other chapters are on EU External Relations by Daniel Denman, on Criminal Law by John Spencer, Social Europe by Keith Ewing, the Charter of Fundamental Rights by Kieron Beale and the Single Supervisory Mechanism by Pierre Schammo.

Each chapter identifies the main challenges the UK would face, and concentrates on the available legal solutions and instruments the UK could avail itself of. Overall, the book makes it possible to get a better idea of the impact of a potential exit of the UK from the EU, as it covers numerous areas of law and policy. The overall, recurring theme is that it would be hard for the UK to retain, legally speaking, its major influence in the world. The book shows in detail the general difficulties that Great Britain will face in case of a victory of the Leave vote. As it becomes clear from reading the book, there is a risk of wasting 40 years of bilateral and reciprocal enrichment in legal and, more broadly, social terms, in exchange for an uncertain and probably chaotic – legally speaking – future.

Conclusion

The book contributes to clarify one of the most ideological and complex events of our time, surely the “most important decision the British people will have to take at the ballot box” .[8]

Brexit is quite an emotional subject in the media at the moment, and it is approached in a quite rhetorical fashion by political figures. Clarity is necessary and this book offers precise and solid arguments for an educated debated. This volume helps scholars, practitioners and academics to orientate themselves in the legal enigma that represents an exit scenario through sharp and detailed analysis on every issue concerned.

In any case, setting aside the results of this consultation, the future of the relationship between the UK and the EU is far from being resolved, and, more in general, the rapport between Union and Member State will still be a matter of discussion all over the Continent for some time.

___________

[1] “Each time we must choose between Europe and the open sea, we shall always choose the open sea.” This sentence is reported to be pronounced by Wiston Churcill towards General De Gaulle on the eve of the Normady landings, indicating that Britain should have no part in the European political integration.

See David Rennie, THE CONTINENT OR THE OPEN SEA: Does Britain have an European Future” p.6, Center for European Reform, 2012

(http://www.cer.org.uk/sites/default/files/publications/attachments/pdf/2012/rp_096_km-6277.pdf)

[2] Philip Stephens, “Why the Brexit Crowds Want to Silence Obama” (Financial Times, 14th April 2016) http://www.ft.com/cms/s/0/cf13ab80-0158-11e6-99cb-83242733f755.html#axzz45tChrnuK

[3] “Conservative favour remaining in market” Wilgminton Morning Star, 4 June 1975

[4] PM David Cameron’s speech on Europe, 10 November 2015, Chatham House (https://www.gov.uk/government/speeches/prime-ministers-speech-on-europe)

[5] R. v. Secretary of State for Transport, ex parte: Factortame Ltd (No.2)  (C-213/89)

[6] Sir John Laws, Public Law, 72 at 92, 1995.

[7] Case 270/80 Polydor v. Harlequin [1982] ECR 329.

[8] PM David Cameron’s speech on Europe, 10 November 2015, Chatham House (https://www.gov.uk/government/speeches/prime-ministers-speech-on-europe)

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