Brexit: A successful failure?

Thu 17 September 2020, Philippe Ropenga

A little less than three years ago, I wrote that Brexit talks were addressing regulatory issues but that other issues needed to be answered as well.¹ Brexit is a legal success (1) that has let politicians snooze for too long (2).

1 A certain legal success

Brexit certainly is a legal success because of its regulatory achievements (1.1) and the interesting legal concepts (1.2) that have been developed.

1.1 Regulatory achievements

You know from this blog that Brexit is an endless screw designed to move the UK out of the EU without damage.² Preparing this move has required impressive regulatory works. A briefing paper written in 2019 by a group of MPs shows that this essential step towards the withdrawal has been successfully taken.³ The EU and the UK have also agreed on the end date of the transition period: 31 December 2020.⁴ This seems to be a small step but it still gives time to the EU and the UK to be creative and find practical solutions to thorny issues.

Let us see what concepts had to be invented to make a safe withdrawal possible.

1.2 Interesting concepts

Brexit itself is an interesting concept since it simply is a legal framework that has no end. The end had to be defined by the EU and the UK later. Conceiving this endless screw is vital since it should encourage politicians to be pragmatic and to take people's aspirations into account. This means that the EU does not intervene in British politics and that British authorities should provide the EU with a comprehensive withdrawal plan.

It is important to note that the EU is an integrated market. The UK wants to have access to this single market at preferential conditions after the withdrawal. This is why the EU and the UK have agreed on core standards known as level playing fields. There was no need for a level playing field when the UK was in the EU since the UK was then bound by EU law. If the UK wants to benefit from a special status, it has to let the EU know what this status could be before it leaves the EU.

The UK also wants to avoid a hard border with Ireland. This is why "backstop" has been invented. You know from my previous posts on Brexit that I support a deal.⁵ I have always been confident about a legal success regarding the UK withdrawal. Brexit, as a legal process, has succeeded to design a common legal framework that could enable both the UK and the EU to shape a future relationship. The level playing field and backstop are concepts that are useful to avoid a No Deal and to shape the future EU-UK relationship. I do not know about you, but I am perplexed by the following paragraphs that are quoted from the 2019 briefing paper:

The level playing field provisions were in the areas of taxation, environmental protection, labour standards, state aid and competition. These have now been replaced by less specific and non-binding commitments in the Political Declaration to uphold such principles in any future trade agreement between the EU and the UK.

The ‘backstop’, however, may never have come into force, and the issue of what level playing field provisions, if any, would apply to the UK in the long-term, would also have been dealt with in the negotiations on the future relationship, as they will be now.⁶

I can hardly see how useful legal concepts can be replaced by "less specific and non-binding commitments". Brexit, as a legal process has succeeded to design a legal framework.

It seems to me that this legal success has been replaced by a probable political failure.

2 A probable political failure

Brexit may fail because politicians have neglected their political instincts (2.1) and have engaged in mechanical talks (2.2).

2.1 Political instincts

Would you pay a lawyer to draft a document that contains vague and non-binding words? If your answer to this question is negative, it means that you feel just as well as I do that the withdrawal from the EU is not a legal issue. The briefing paper dates from 17 October 2019. Not much has been achieved since its publication. Covid-19 has put withdrawal negotiations to a stand still. A pause was sensible and unavoidable. I hope that a new roadmap will soon be announced by the UK. It should help EU citizens to understand what the British want. "When there is a will, there is a way" as they say. Presently, the way is misty and the will is unclear. As a practitioner who deals with family estate issues, I can tell that putting people under time pressure is worthless since they can sign a piece of paper and try to litigate about unresolved issues by challenging the settlement that they have signed. This is why I often do not recommend people to focus on having anything signed. People usually do not wish to have something signed but to have something done. "Get Brexit done" is different from "Get the paperwork signed". Family or business issues are often not purely legal ones, even if they have legal implications. The UK withdrawal is a purely political issue now that outstanding legal issues have been addressed. Politicians can decide to dismiss these legal solutions and may even have a duty to do so when they feel that these solutions compromise a political result that reflects people's aspirations. It is politicians' job to rely on their instincts to feel what people deeply want and to unite a country. No one else can do this job. As soon as they stop doing it, they become managers who fill their agenda between two elections or nominations.

It seems to me that the withdrawal may fail since UK politicians prefer mechanical talks.

2.2 Mechanical talks

British citizens have been passionate, if not divided, by Brexit. They now seem apathetic and awake as a deadline approaches, putting the UK at risk of crashing out of the EU without a deal. I am not a fan of this deadline diplomacy because I cannot always perceive the will nor the way behind the talk. I do not blame the British for not having reached an agreement on what to do. I simply have the impression that they do not know exactly what is going on nor why it still is going on. The withdrawal seems to be a self-propelled topic. Talks seem to be going on without anyone trying to solve any political issue. Talks go from one issue to another in a mechanical manner. I felt approximately two years ago that Brexit was boring because talks dealt mainly with regulatory measures that could support economic growth.⁷ I know that economy matters but one should not expect me to engage in a political debate that focuses mainly on figures. Such talks are good for weak individuals who can delay any decision and blame other people for their unreasonable behaviour. Fortunately, the UK and the EU are governed by talented leaders. Let us wait until the next deadline approaches; political leaders will probably ask for an extension of the transition period to be able to focus on the next step.

Who will be will see.

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