February 25
2020
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6th February 2020
External Relations & Trade Institutional law

Op-Ed: “Brexit – Apportioning the Blame” by J.H.H. Weiler

The immediate prevailing emotion on the eve of Brexit is a form of relief. It is understandable and benign. The three year farce has taken its toll. Closure, at last.

There is another sense of relief, felt by many, understandable too, though less benign. It is the ‘good riddance’ form of relief. It is easily detected and openly declared by the British Brexiteers: Good riddance of Europe. (Yes, we are back to speaking of Great Britain and Europe). But it also is quite widely shared in Europe, though spoken quietly and behind closed doors: Good riddance of Britain, often accompanied by “de Gaulle  was right after all;’ ‘they (the Brits) never really embraced the European Construct; never really believed in ‘An ever closer Union;’ never shed their Island mentality, their pathetic Battle of Britain ethos’, and similar sentiments. What underlies this sentiment is treating Britain as a Special Case, an ab initio error that has finally been corrected.

No one should cheer this day. Europe is the poorer in so many ways for the UK having left. Britain might well be the poorer in even more ways. Time will tell.

I speak of ‘Apportioning the Blame’. Blame for what?

There is, first, the blame for what has been a disastrous process – farce, tragicomedy, the ultimate refutation of ‘rational choice’ – all come to mind. There is an acerbic Jewish saying that there is nothing that is so bad that cannot be worse. Every passing month in the unfolding Brexit saga was living confirmation of such.

But there is a deeper ‘blame’ (for want of a better word). The question is not who is to blame for the UK leaving but the much more poignant question: why did so many citizens of the UK both in the referendum and in the recent elections come to the conclusion that they wanted out. For many it was not the result of a serious cost/benefit analysis but speaking from the gut.

It is, in my view, the real question to ask, for Brexit was but the terminal stage of a malaise that is affecting large segments of European populations in various Member States. The ‘Battle of Britain’ ethos might explain why the Brits actually took the plunge. Other Member States are ‘smarter’. Why leave? But some appreciable degree of Euroscepticism is a staple of what we have come to call Populists, and these are no longer marginal voices on the lunatic fringe of European politics, but in relatively short order have become part of mainstream politics in too many Member States for comfort. When I say mainstream I do not necessarily mean a majority, though Ms Le Pen did win, by a significant margin, the last European elections. I mean that they are part of the message of large parties which have moved from the fringe to the centre. And, of even greater alarm, the European strain of the virus has a virulent streak which was not largely present in the UK case: The Euroscepticism is accompanied by a strong sense of disillusionment with the fundamentals of liberal democracy, which in some ways is an even more malignant pathology than ‘straightforward’ Euroscepticism.

By explaining Brexit under the British exceptionalism umbrella, and feeling confident, rightly so,  that there are no other candidates ready to jump ship, we alibi ourselves from some serious soul searching about that other strain of the virus which may not be terminal, but is no less and perhaps even more inimical to the future of the EU and the wellbeing of democracy in Europe.

In this brief essay I will address the issue of the process. In a future post I will address the more fundamental question of widespread citizen alienation from Europe and liberal democracy.

So who is to blame for the tragicomedy we have experienced in the last three years or so?

It is useless to spend too many words on those ‘Magnificent Brits in their Flying Machines’ taking flight from any semblance of responsible governance in the 21st Century. Nota Bene – this is not judgment on the actual decision to leave but on the process by which it was brought about and then managed.

It started with the reckless David Cameron. (See my ‘There is Chutzpah and then there is David Cameron’ blog post https://www.ejiltalk.org/there-is-chutzpah-and-then-there-is-david-cameron/ of October 2016). The breathtaking superficiality and irresponsibility with which he was willing to gamble the future of his country in order to solve a Tory party dilemma. It became rapidly clear that there had been no serious (probably none at all) preparatory work as regards process or what the reality of Brexit would actually mean. Do you recall the difficulties and subsequent interminable delays he had in actually drafting the ‘conditions’ the EU had to fulfil in order for him to recommend to vote Remain? It was clear that when calling the referendum he had not even thought of that? Do you recall the rubbing of the eyes with disbelief when finally his thin gruel was presented? For these demands he was calling a referendum? And then the brazenness with which he suddenly shifted and adopted as his refrain for the referendum campaign ‘Brits Don’t Quit’! If Brits don’t quit, why had he called a referendum? And fast forward to the decent but inept Theresa May. All I will say is that I am convinced that when the infamous Backstop was negotiated she simply did not understand its ramifications. Were her advisors and the accompanying civil servants equally inept, or, if you are inclined to Deep State theories, did they conceal from her the meaning of what she had signed on to in the hope that when the naked truth would come to light it would bury Brexit? Be that as it may, it was clear that the UK negotiators were outclassed and continue to be outclassed by their EU counterparts at every turn and twist along that Long and Winding Road.

I would just add that May’s incomprehension dwarfs in comparison to that of the self contradictory and confused Corbyn. To this day I do not believe he truly understands the meaning for the UK of remaining in a Customs and Regulatory Union for the very policies he was advocating in his own Election Campaign.

One could go on and on (and on) but for what purpose? Far more interesting is some introspection about the role of the EU and its ‘blame’. The UK were certainly the Seven Dwarfs but the EU was no Snow White.

A quick mention should be made of those who drafted Article 50. It is clear that they had the correct idea that the process of leaving the European Union should be clarified and regulated by law. It is equally clear that they gave little thought (it seemed a theoretical possibility, no?) to the practicality of what they had drafted with the laughable time frame, the irrationality of the rules regarding unanimity and majority and the ambiguity as regards revocation which had to be resolved by the CJEU. I would not argue that the CJEU was ‘wrong’ in its decision; it is one of these cases where the law would allow both interpretations – as evidence by the fact that both Legal Services of the Commission and Council adopted a different position from that adopted by the Court. As a matter of policy I think the Commission and Council were right and in any future renegotiation of the Treaties (a Pandora’s Box which should not be opened lightly) the Article should be amended.

This was a negotiation of non-equals, though on occasion I was reminded of the fierce little toy poodles who bark ferociously at our Rottweiler when out on a walk. Such inequalities pose a particular responsibility on the Rottweiler. From my maternal grandfather, a rags-to-riches self-made millionaire (decorated by the King of Belgium) I learnt at an early age an obvious piece of wisdom. Even if you have more business leverage, do not push your advantage to the full. In any negotiation, both parties have to walk away feeling they had concluded a good deal. And not only feeling such, but if you want the deal to endure, they actually have to walk away with a good deal. (I wish Mr Trump had met my grandfather. He would have avoided many of his own bankruptcies and would avoid bankrupting the international trading system and much more).

Juncker, a historic President in my view, followed this to the full in responding to the hapless Cameron’s ‘conditions’. He bent over backwards, even agreeing on migrant worker issues to a resolution which was doubtful under EU law. But once the referendum went south, the posture of the EU changed and the grandparental wisdom was abandoned.

Here is a partial list – guaranteed to raise many hackles.

Though denied again and again, there is sufficient Google evidence from countless politicians in several Member States, to the effect that the meta-posture of the EU was to Play it Tough in order to deter other Exiteers. I think this was misguided for two reasons. First, I do not believe in Catholic Marriages. The Peoples of Europe should remain wedded to the idea of an Ever Closer Union out of conviction and not fear. As mentioned above, a recalcitrant and truculent partner within can wreak more damage on the future of the EU than a friendly Associate Member. (For more on this see ‘The Case for a Kinder Gentler Brexit’ in https://www.ejiltalk.org/editorial-the-case-for-a-kinder-gentler-brexit/) And, second, if, as should be the case, one understands that even post-exit, for economic and geo-strategic reasons, an alienated UK is not in the interests of the EU, that meta-posture often turns out to be counter-productive.

The tough Divorce Terms First, and only then Withdrawal Agreement negotiations was, in my view, sheer folly. Given the Article 50 time constraints it was a painful and unnecessary waste of precious time. Could anyone seriously believe that had the Withdrawal negotiations failed resulting in an Hard Brexit (as was a distinct possibility – and then the Blame Game would have started in earnest) the Brits would have respected the Divorce Settlement? That this would be the case became clear in the march towards the cliff in the final months of last year. (And this is not Monday morning hindsight reading of the Sunday football match – if you take the trouble to read the ‘Kinder Gentler’ piece above).

The Backstop would guarantee the integrity of the EU’s customs and regulatory territory but at the expense of the integrity of the UK’s customs and regulatory territory and de facto and de jure force the UK into a permanent customs and regulatory union. Chapeau to the EU negotiators for having the UK swallow that frog without even noticing. Do you recall the British dismay (including May herself) when the UK Attorney General finally made clear to all and sundry? But was it in the interest of the EU to push for this solution – a solution which a country like, say, France would never ever accept for itself? A forced de facto Customs and Regulatory Union.

Full disclosure. Sir Jonathan Faull, Daniel Sarmiento and myself, put forward a much discussed  and much contested alternative approach (the Financial Times called it the Win-Win Solution – we continue to believe that there were answers to all the objections that were raised, but the Commission team seemed to be locked into their repeated assurance that there were no alternatives to the Backstop). Be that as it may, (or May) eventually the original Backstop had to be modified though at the price of a huge concession by Boris: the introduction, however disguised, of a customs frontier within the UK. But does anyone believe that is a stable solution?

As we enter into the Post-Brexit phase of the saga, the imbalance of power is even more transparent. It may be worth repeating again, that unlike a real life divorce, these two one time spouses do not have the luxury of just walking away and never seeing each other again if they so wish. They will need each other economically and geo-strategically in the future. The rhetoric is not promising.

Joseph H.H. Weiler is a Professor at NYU School of Law, Senior Fellow at the Harvard Centre for European Studies, and former President of the European University Institute, Florence (2013-2016).

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