Saturday, 1 February 2020

Reflections on Exit Day

After a membership lasting 47 years 30 days and 23 hours, the UK left the European Union at 2300 hrs GMT on 31 January 2020 - BBC News, The Telegraph, The Guardian.  It is well over three years since the 2016 referendum and it is not entirely clear that Brexit continues to be the wish of a majority of people in the UK - BBC 31 January - but the "first past the post" 2019 General Election resulted in a government with a strong majority and elected on a manifesto to "Get Brexit Done." The impact of first past the post on the election outcome is discussed at The Guardian 18 December 2019.

The Withdrawal Agreement is in place for the remainder of the year 2020. This will either smooth the way to a future negotiated relationship with the EU or, alternatively, present a no-deal (or minimal deal) situation from 2021.

Leaving the EU is a break from a body with a membership of 27 States and with a population of around 513 million people.  On 2018 figures, the EU has a gross domestic product (GDP) exceeding $18,000 billion and numerous
" trade deals" are in place from which the UK has benefited. For fuller details of the trade deals in place and those under negotiation see European Commission website. Apart from deep economic cooperation, the EU requires member states to engage constructively with a view to promoting peace and the well-being of its peoples - Treaty on European Union Article 3.

The EU, with its
single market and customs union, has been enormously beneficial to business due to the removal of barriers to trade across most of the continent of Europe. It has offered citizenship of the EU to nationals of member States and they have been generally able to travel freely, seek work and set up home in Member States other than their own. The EU has successfully set standards in numerous areas - e.g. workers' rights, environmental protection, transport, criminal justice co-operation etc - Topics for the EU.

Critics of the EU point to the fact that it has developed attributes normally associated with Statehood such as a currency (the Eurozone) and a Common Foreign and Security Policy involving the use of the military in some circumstances - post 23 April 2016.  The tendency toward "further integration" (or "federalism") was spurred on by the Treaty on European Union (Maastricht) and has not sat well with many in the UK.  However, those who think that Brexit will necessarily mean an end to any UK participation in EU military missions may yet be disappointed - House of Commons Library 10 September 2019 - EU defence: where is it heading?

A further complaint has been that, whilst it was a member of the EU, the UK lost "sovereignty" and was a "rule-taker." The reality is that EU law only ever had effect within the UK because Parliament enacted the European Communities Act 1972. In areas of EU competence the UK chose to share its national sovereignty and, by doing so, gained substantial economic and security benefits. In areas outside EU competence, the UK always retained independence of action - e.g. engagement, with other nations, in military action in the Middle East etc. As this Chatham House paper pointed out in May 2016, the UK retained full control of matters of greatest concern to voters - health, education, pensions, welfare, monetary policy, defence etc.

EU law has an existential need to be superior to the law of Member States but it is essential to note that EU law applies only to areas where the EU has competence.  The "supremacy principle" makes good sense in matters such as the interpretation and application of the EU Treaties and legislation. EU law would be ineffective without such supremacy and serious difficulties would arise with the implementation of policy across the member States. This was recognised well before the UK's accession in cases such as Van Gend en Loos 1963. With the Factortame No.2 case 1991 came recognition that EU law could trump an Act of the UK Parliament.

Vast swathes of English law remain largely untouched by EU law such as land law, the law relating to wills and intestacy, substantive criminal law, the law of tort etc.  Furthermore, Parliament has been entirely free to legislate for numerous legal changes such as the law relating to care of children (e.g. Children Act 1989), the introduction of civil partnerships, same-sex marriage, and numerous other topics. This demonstrates the point that the UK Parliament continued to be "sovereign" throughout the time of EU membership.

The beginning:

In the 1950s, three European Communities were established - the European Coal and Steel Community (ECSC), the European Economic Community (EEC), and the European Atomic Energy Community (Euratom). The first six nations to co-operate in this way were Belgium, France, Italy, Luxembourg, The Netherlands, and West Germany.  [The Treaties of Rome 1957].

The Treaty establishing the ECSC was signed at Paris in 1951 and came into force on 25 July 1952. ECSC was the first of the three communities but its existence was limited to 50 years and it ended on 23 July 2002. The EEC and Euratom Treaties were signed at Rome on 25 March 1957 and came into force on 1 January 1958.

In both 1963 and 1967 there was a desire, at least on the part of some British politicians, for the UK to join the Communities - generally referred to in those days as "the Common Market."  Both attempts were rebuffed by President Charles de Gaulle.

In 1971, doubts over many issues affecting Britain's future were aired in a House of Commons debate that lasted six days.  Hansard for 28th October 1971 records that the House of Commons approved the following motion by 356 votes to 244.

"That this House approves Her Majesty's Government's decision of principle to join the European Communities on the basis of the arrangements which have been negotiated."

On 22 January 1972, at the Egmont Palace Brussels, Prime Minister Edward Heath signed the Treaty of Accession taking the United Kingdom into the three European Communities with effect from 1 January 1973.  Denmark and Ireland also acceded to the communities at the same time.  Norway had participated in the accession negotiations but did not join as a result of an adverse national referendum.

European Communities Act 1972:

The European Communities Bill duly followed in order to give effect to the European Treaties in UK domestic law - Post 24 August 2016.  The Bill was debated for some 300 hours before it received Royal Assent on 17 October 1972 and became law as the European Communities Act 1972.  The government ratified the Treaties on 18th October 1972 and UK Accession to the Communities followed on 1 January 1973.

The membership years - 1973 to 2020: 

The membership years were marked by EU enlargement to 28 member States and significant changes to the EU's law-making process. Greater use of "qualified majority voting" (QMV) came with the Nice Treaty in 2001 but this removed the need for member states to act unanimously in some areas - (often referred to as a right of veto). Today, most EU legislation is made using the "ordinary legislative procedure" in which the European Parliament and Council of the EU have equal status. National Parliaments are notified of proposals to legislate and are able to give an opinion.

There is much to be said for the view expressed by former diplomat Sir Crispin Tickell that the UK never fully played the leading role that could have been possible - The Guardian 25 June 2016.  Over the 47 years of UK membership a rather cool and, at times, rocky relationship has prevailed. This is not to argue that the UK failed to influence EU policy. The reverse is actually the case and UK influence has been much greater than is generally recognised - LSE 9 July 2018. For example, British support and backing for the single market was essential to its realisation.

Many key developments took place during the 47 years of UK membership and the UK secured key opt-outs to certain policies, notably the single currency and Schengen.  The various twists and turns need not be examined in any detail here and will undoubtedly be the subject of many yet to be published articles and books. Following the Maastricht Treaty of 1992, the European Union was formed and its structure was further altered by the Lisbon Treaty (in force December 2009) - see European Treaties.

Enlargement of the EU in 2004 undoubtedly boosted anti-EU sentiment in the UK where public services, often starved of adequate resources, were coming under increasing pressure as a result of immigration.  All of that was to ignore the beneficial side of immigration enabling services such as the National Health Service (NHS) to maintain adequate staffing - The Guardian 26 January 2014 - Figures show extent of NHS reliance on foreign nationals.

The year 2015 saw a large increase of immigration into the EU - UN Refugee Agency December 2015. Also, who can forget the almost daily images of the camp near Calais which opened in January 2015 and was closed by the French authorities in October 2016.  For a time, further eastward enlargement looked possible with Prime Minister Cameron supporting Turkey's bid to join the EU - The Telegraph 9 December 2014.  Following events in Turkey in 2016, it is now unlikely that Turkey will meet accession criteria for the EU in the near future, if at all - see EU Council - Turkey current position.

Anti-EU sentiment within the Conservative Party, together with the leave campaign fronted by politicians such as Nigel Farage, led to the decision by Prime Minister David Cameron to hold an "in-out" referendum. His attempt to secure changes to the UK's relationship with Europe ended with very little to show for his efforts (The Telegraph 14 June 2016) and, following a lacklustre campaign by the "remain" side, the 2016 referendum resulted in an overall vote to leave. Scotland and Northern Ireland voted to remain - post 24 June 2016 and that may have crucial significance for the future of the UK as a union.

British euroscepticism was certainly no recent development and persisted throughout our 47 years of membership. Even with Brexit secured, the scepticism is likely to continue into the future and may have decisive influence over decisions as the UK makes choices for the future relationship - The Guardian 31 January 2020 - Don't tune out yet: Britain's Brexit odyssey is far from over and see BBC News 2 February 2020

The future:

Churchill spoke in 1942 about the end of the beginning. An entire new relationship with the EU will now have to be worked out. The Political Declaration (PD) is intended to point the way forward but its future influence is unknown and, given its non-legally binding status, may be minimal. The PD notes -

 A further point of interest is that the PD states -

A number of such agreements exist with other "third countries" and their legal basis in EU law is Article 217 of the Treaty of the Functioning of the EU (TFEU) - see Institute for Government. The possibility of such an agreement has been indicated by the EU's Chief Brexit Negotiator - M. Barnier.

Whilst the PD envisages an "ambitious, wide-ranging and balanced economic partnership", the reality is that time is short to achieve anthing like a comprehensive free-trade arrangement. The transition period lasts for the remainder of 2020 and could be extended but the Prime Minister has already ruled out doing so. The possibility of failing to achieve a deal by the end of 2020 is still there.

Brexit coverage:

The Brexit Library on this blog contains links to my various posts relating to Brexit in the period 20 February 2016 to 31 December 2020.  It is to be hoped that, for the future, suitable arrangements can be made to minimise the impact of Brexit on the UK's economy reliant as it is on close trading links with EU States.

The future of the UK as a union of England, Wales, Scotland and Northern Ireland is now at risk and ought not to be dismissed lightly. Although a Scottish independence movement has existed for many years, Brexit has filled its sails and demands for a further independence referendum will now be hard, if not ultimately impossible, to resist.

Whether the UK will ever rejoin the EU is a moot point. An application would have to be made and the process is governed by Article 49 of the Treaty on European Union which contains several obstacles to any future membership.  Note the requirement for Council to accept unanimously the application. The conditions of eligibility have to be taken into account and accession agreements have to be ratified by ALL member States.

Whether the EU would actually wish to see the awkward UK as a future member is open to some debate despite "warm words" in the European Parliament and elsewhere. Much more certain, at least in my view, is that the UK would never again obtain a membership deal as favourable as the one it has just given up with its opt-outs, particularly from the Eurozone.

As the President of the EU Commission (Ursula von der Leyen) said -

“Brexit will not resolve any of the existing challenges for the EU or the UK” - see the speech "Old friends, new beginnings: building another future for the EU-UK partnership" - view via the EU Commission Audiovisual Service.

Whilst I think that the balance favoured remaining a member, my personal view does not matter one iota. The die is cast, the Rubicon is crossed. The UK must now live with the consequences.

1 February 2020

1972 - Prime Minister Edward Heath (with Geoffrey Rippon) signing the Treaty of Accession -

1 January 1973 - UK accession to the European Communities

2020 - The UK's Permanent Representative to the EU (Sir Tim Barrow - pictured left) handing over the Instrument of Ratification for the Withdrawal Agreement -

31 January 2020 - UK left the EU at 2300 hrs GMT. Withdrawal Agreement in force and governing UK-EU relations for 2020 (the implementation or transition period).

List of EU Commissioners - the UK appointed Commissioners are included in this list from Christopher Soames to Julian King.

Court of Justice - During membership of the EU the UK provided 7 judges to the court - Alexander Mackenzie Stuart, Jean-Pierre Warner, Gordon Slynn, Francis Jacobs, David Edward, Hermann Schiemann, and Eleanor Sharpston - see list.

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