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If we really want to take back control, the UK must push for a 'Controlled Brexit'

A gradual EU opt-out might provide a way of balancing the competing demands of stability and democratisation in forthcoming Brexit negotiations.

An EU balloon flies next to a statue of Winston Churchill in Parliament Square. Photo: Daniel Leal-Olivas / PA Wire/Press Associ An EU balloon flies next to a statue of Winston Churchill in Parliament Square. Photo: Daniel Leal-Olivas / PA Wire/Press Association. All rights reservedBoris Johnson rightly says that the dominant reason people voted to leave the EU was for the sake of democracy: to “take back control”. This clarion call poses a challenge to the negotiatiors of Brexit: what withdrawal method best respects that demand for democracy and minimises the costs, risks and duration of the departure exercise? One answer to this lies in what I call a 'Controlled Brexit'. This involves continuing to opt in to each component of EU membership until we have considered and prepared for opting out.

Since the referendum, I have been running a project called Opportunity in Crisis which involves hearing from people around the country, from London to Merthyr Tydfil, to Hawes in Wensleydale. We collected opinions about what they want for Britain’s future. The views of 200 participants can be summarised as follows:

  1. There is an urgent yearning for great improvements to the lives of British people: people want greater community engagement; and improvements in public services, housing and the economy.

  2. Whether or not people wish to leave the EU, they want the burden, risks and costs of leaving the EU on our politicians, civil servants, public bodies and private enterprises to be minimised so that we can get on with revitalising our society.

  3. People are fed up with the old politicians and politics: They want “grown-up politicians”, “statesmen” and “leaders”; no more fantasies, lies, slogans and self-promotion, but responsible approaches to the difficulties Brexit will pose.

Controlled Brexit responds to what people have been saying they want for the country.  The first step in the Brexit process is likely to be agreeing a withdrawal treaty pursuant to article 50. Thereafter, there will have to be further treaties dealing with the basis of future EU/UK relations. A Controlled Brexit seeks to do the minimum with the withdrawal treaty and postpone the remainder of re-aligning our relationship with the EU to be dealt with subsequently at a manageable pace. The need for this approach has to be understood in the context of an honest appreciation of the scale of work involved in Brexit.

the UK will have to do an enormous amount of running just to stay still

Commentators are starting to focus on the scale and bureaucratic complexity of Brexit: the UK will have to do an enormous amount of running just to stay still if it adopts any of the off-the-shelf relationships with the EU, such as those enjoyed by Canada or Norway. Sir Amyas Morse, head of the National Audit Office describes Brexit as like a “tidal wave coming up the beach” for which the civil service is unlikely to have capacity. To try to understand this, consider the main aspects of the task that faces us: reviewing and rewriting our legislation; drawing up new international treaties and building new UK policy fields to replace those we lose by exiting the EU.

Reviewing and re-writing legislation

Professor Michael Dougan has given persuasive evidence to the Treasury Select Committee that Brexit- however it is done- will necessitate a complete spot-check of the entirety of the UK’s legislative scheme. From environmental regulation, to employment law, to product regulation to the criminal law: EU law is integrated into UK law at every level. If we do not review and amend it thoroughly, unintended chaos and litigation deadlock could ensue. To undertake this necessary review is, Professor Dougan explained, a “gigantic task”. The government has not begun to engage with the scale of this work: even to quantify it (surely necessary for budgetary and resource considerations) is a task that is seemingly yet to be performed. Most of this gigantic task will not achieve anything better, it will be necessary simply to maintain some legislative order and minimise the disruption and litigation which will ensue on any form of Brexit other than the Controlled Brexit I advocate.

Treaty-making with countries outside the EU

There has been no official quantification of the scale of the treaty-making, with which the UK will have to engage, but the complexity, scale and cost of this task is also daunting and well beyond the current capacity of our government.  The Treaties Office Database records that the EU has concluded more than 25 bi-lateral treaties in the past 12 months. It lists in total 880 bi-lateral treaties and 259 multi-lateral treaties concluded by the EU over the past 60 years with most countries of the world. It will not be possible for the UK to recreate the depth and sophistication of international relations achieved by the EU over sixty years. The most obviously viable way out of this predicament is to achieve some sort of shadow accession to these treaties from outside the EU. But even that will be difficult since most of the treaties are with the EU and depend for their functioning vis-à-vis the UK on its membership of the EU.

Free Trade Agreements

The focus of UK action over the next decade will be upon re-negotiating the most important free-trade agreements with the EU and other major trading partners. By way of indication of the scale of this task, the EU-Canadian Comprehensive Economic and Trade Agreement (CETA) has just (in July 2016) been proposed by the European Commission to the EU Council for agreement, negotiations having begun in 2007. It is expected to be implemented in 2017. Reportedly, Canada engaged 300 negotiators on the deal. The UK may have to complete its own free trade deals not just with the EU, but with every major trading partner. A European Commission memo of December 2013 states that the EU had around 50 free trade deals with other countries (including customs unions). The scale and duration of bureaucratic activity is difficult to estimate (and again is not something the UK government has yet engaged with), but it will be vast. Much of this work will be simply an attempt to recreate what we already have: there is no guarantee these relationships will be any better for the UK (and considerable risk that with our weaker negotiating position they may be worse).

New domestic policy fields

At a domestic level there will be a huge amount of work replacing policy fields that have been operated for decades at an EU level. There are a few of them to consider. The UK would, even in a future Norway-type arrangement with the EU, need to develop an agricultural policy and a fisheries policy from scratch to replace the common agricultural and common fisheries policies. Last week the government said it would match EU science funding to the tune of £4bn - a simple enough idea, but spending £4bn rationally requires a lot of work. If we depart from the jurisdiction of the European Court of Justice: presumably there will have to be a new international court established to determine disputes arising from whatever new legal order we establish with the EU. Even if we submit to the jurisdiction of the EFTA court (used by Norway and others) that will still involve a complex bureaucratic task and that court will need considerable additional resources.

Many more examples could be given. Establishing new policy fields and major institutions should be the work of many years. It ordinarily involves a department of state engaging in consultation and preparing policy papers with legislation being carefully debated and scrutinised through parliament by interested groups and the public. After that policies are implemented gradually, becoming more complex and sophisticated as time progresses.

The first indications of bureaucratic costs (without any real precision as to what is involved) are apparently that the process will cost over £5bn.  The government’s primary duty now must surely be to publicly lay out in detail, and to cost, the ramifications of Brexit for every department of state; for every public body that will need to engage with it and, moreover to estimate the huge burden on private sector organisations.

The problem created by the scale of the Brexit exercise is one which feeds back to the central ideological justification for Brexit: reclaiming sovereignty

The problem created by the scale of the Brexit exercise is not just one of resources and finance, but one which feeds back to the central ideological justification for Brexit: reclaiming sovereignty. If, as Boris Johnson has said, the central justification for the exercise of leaving the European Union is to restore British democracy, that means presumably both empowering the UK parliament, as well as revitalising the democratic system which elects that Parliament. Yet in truth the scale of the Brexit exercise is not one which Parliament can cope with. It cannot possibly hope to scrutinise the huge legislative review that leaving the EU will entail. The almost inescapable irony of the Brexit process is that the forms of Brexit being proposed will require one of the greatest diminishments in parliamentary sovereignty in its history. This is because the only way of dealing with the exercise will be a massive transfer of power to the executive- and in more pithy reality- to a newly appointed swathe of unelected bureaucrats.

But there is a way out of all of this which will satisfy the democratic imperative to leave the European Union. It is a withdrawal method which avoids the risks posed by most of the alternatives being discussed in the media and, according to the fairly reliable hearsay of Robert Peston, in Whitehall too. If Controlled Brexit is pursued, the withdrawal treaty will provide that the UK leaves the EU, meaning the UK will no longer elect members of the EU parliament or appoint EU commissioners and will cease to participate in some of the other political institutions of the EU. The withdrawal treaty may also seek to address one or two other priorities, but the general principle is to ensure that the UK respects the referendum by actually leaving the EU expeditiously and simply. A Controlled Brexit withdrawal treaty will provide that apart from leaving the EU and its political institutions, in every other respect the two EU treaties (the TEU and TFEU), European Law, UK contributions to the EU budget, and all forms of cooperation with the EU and by the EU continue until such time as any further treaties are agreed. Having thus achieved a swift and simple form of departure from the EU, it would then be left to Parliament to consider how much farther to go. Parliament would be able, in appropriate timescales, to consider the ramifications of opting out of each element of EU membership; to prepare a transition programme; and for the executive to thereafter negotiate alternatives with the EU (whether as a series of discrete negotiations or in one further big-bang treaty).  

any changes to the UK and its relationship with the EU will not simply come out of the blue at the whim of the executive or the vicissitudes of the negotiating table

There are manifold benefits of this approach. Rather than the UK being confronted with the abrupt chaos of having to desperately negotiate hundreds of international treaties and free trade agreements; Controlled Brexit allows for the gradual dismantling of integration with the EU. This allows us to avoid being forced to review and amend thousands of pieces of domestic legislation; to replace the common agricultural policy; replace the common fisheries policy; replace science funding; replacing the European Court of Justice; enduring decades of litigation. It provides foreseeability and stability to the changes: any changes to the UK and its relationship with the EU will not simply come out of the blue at the whim of the executive or the vicissitudes of the negotiating table. Controlled Brexit ensures that the UK can cope with the whole process: changes will take place at a manageable pace according to the resources available. It minimises the risks of unruliness and economic shock consequent upon leaving the EU.

Controlled Brexit represents the most realistic means of ensuring Brexit actually occurs, since it is simple enough to be achievable. It thereby ensures respect for the referendum vote, but does not encourage an opportunistic ideological grab at more than is mandated by the simple instruction to leave the EU.  At the same time it keeps open the democratic opportunity for debate and for a sovereign decision as to whether ultimately our break with the EU is a radical or conservative one. It avoids what will, given the scale and complexity of the task of leaving, otherwise be a process of replacing Parliamentary sovereignty by executive- led bureaucracy.

It is a process that may appeal to the EU and its member states, not least because it minimises the shock of Brexit to the EU. For example it ensures continued UK contributions to EU budgets for the meantime so that the EU too can plan in a controlled way for major changes to its functioning. Of course, even this proposal will be difficult, uncertain and dependent on the agreement of the EU and its member states, but that is true of any form of withdrawal process. The UK will lose much of its influence over the making of EU policy, but that is also inevitable in any form of Brexit. It is the smallest price that can be paid to achieve the outcome the country chose.

About the author

Alex Goodman is a barrister specialising in constitutional law. He has recently been advising on the remaking of the constitution of Myanmar through the Bingham Centre for the Rule of Law.


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