The Case for a Kinder, Gentler Brexit

—J.H.H. Weiler, University Professor, European Union Jean Monnet Chair, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional Law

Of course, we know better than to be shooting at each other; but the post-June 23 relationship between the United Kingdom and the European Union is woefully bellicose, and increasingly so. In tone and mood, diplomatic niceties are barely maintained and in content positions seem to be hardening. I am mostly concerned with attitudes and positions of and within the Union and its 27 remaining Member States. Handling Brexit cannot be dissociated from the handling of the broader challenges facing the Union. I will readily accept that the UK leadership bears considerable responsibility for the bellicosity and the escalating lawfare. But the inequality of arms so strikingly favors the Union that its attitude and policies can afford a certain magnanimous disregard of ongoing British provocations.

It is easy to understand European Union frustration with the UK. I want to list three – the first being an understandable human reaction. It is clear that when Cameron called for a renegotiation followed by a referendum he had no clue what it was he wanted and needed to renegotiate. The Union waited patiently for months to receive his list – the insignificance of which, when it did come, was breathtaking. For “this” one was willing to risk breaking up the Union and perhaps the UK? I recall Jean-Claude Juncker’s State of the Union of 2015 in which going the extra mile in preventing a Brexit was one of his top priorities. Any fair-minded observer would agree that the Union delivered on this commitment. Some of us even thought that the eventual compromise on free movement went beyond the boundaries of extant EU law. The actual Brexit vote was thus greeted with understandable disappointment, to which a measure of bitterness and even anger were easy to detect in the myriad statements that followed. And then it also became abundantly clear, breathtakingly clear, that the UK went into the referendum without any strategic – political and legal – plan in the event of, well, Brexit. One did not know what the Brits wanted ahead of the referendum and one still is not clear what they want in its wake. It has been ongoing and at times incoherent improvisation – adding further to the already existing frustration. We tend to reify governments and administrations just as we reify courts. But when all is said and done, there are always humans with emotions and ambitions and desires and the usual frailties of the human condition.

Still, setting aside this kind of emotional state as the basis for, or even influencing, a Brexit strategy, it is well overdue. If the interest of the kids is really in one’s mind, it behooves any divorcing couple to get as quickly as possible beyond the anger stage. In approaching Brexit the single consideration should be the overall interest of the Union and the underlying values of the European construct.

I take it as axiomatic that it is in the interest of the Union – economic, strategic (not least security) and even social – to have as amicable, open and cooperative a relationship with a post-Brexit UK. One cannot very justly express alarm and disapproval at the protectionist winds blowing from the White House and then not accept that, even if outside the Union, it is in our interest to keep as open a marketplace with such an important contiguous economy as the UK. Nor can one fail to realize that with the end of the Pax Americana, how damaging it would be for Europe, when finally beginning to take its security responsibilities seriously, not to be able to count on a robust participation of the UK. And beyond the money power matrices, the UK has to remain a firm ally in the defense of liberal democracy under attack. Not to mince words, a hostile Union will only further push the UK into an uneasy embrace with Trump.

What, then, from the Union’s side – at the policy rather than the emotional level – seems to explain the bellicosity? There are two interconnected arguments that are repeated again and again in explaining and justifying the rhetoric of a “hard” Brexit or “Divorce before any negotiations” et cetera et cetera ad nauseam and ad tedium.

The first is that one cannot compromise the conceptual and practical coherence of the Single Market, of which free movement of workers is an indispensable and non-negotiable principle. (I consider as sad collateral damage the fact that the Brexit debate has returned the principle of free movement to its economic foundation – workers, factors of production in a common market – and away from its new citizenship grounding). And since the UK insists that it can no longer accept free movement, it cannot both have its cake and eat it. You cannot be in the Single Market without accepting its cardinal principles. There is an important additional nuance to this argument, namely that by taking a tough line with the UK one is squelching any heretics who would like to see the dilution of free movement within the Union.

The second – interconnected – reason for the tough rhetoric and the endless promises of a “hard” Brexit is the “discourage the others” argument. If the UK gets too cushy a deal – i.e. is not made to pay and to be seen to be paying a heavy price for Brexit – it might tempt other Member States to seek the same, thereby bringing about a weakening or even disintegration of the Union. The notion of some form of Associate Membership is thus rejected categorically.

I think the first argument is based on a misunderstanding and the second argument raises a profound issue that goes well beyond any Brexit strategy. It touches on what is sometimes thought of as the “soul of the Union” – its very ontology – a clarification of which should at least provoke second thoughts as to the wisdom of the extant approach to Brexit.

It is clear that if the UK leaves the Union and rejects free movement it cannot be a full participant in the Single Market. But, it is worth making, again and again, the obvious distinction between being part of the Single Market and having access to the Single Market.

For decades, even before it was called the Single Market, it has been European policy that granting access to the Single Market to partners all over the world was an important objective, beneficial both to the Union and to such trading partners. The recent conclusion of CETA (Canada-EU Comprehensive Economic and Trade Agreement) is just the last, if very visible, manifestation of such a policy. The Union has countless agreements of this nature – the common denominator of which is the granting of access to the Single Market not only without requiring free movement of workers, but excluding such. In the case of developing countries the access has been at times on a non-reciprocal preferential basis, though with many partners (again using CETA as an example) it is on a fully reciprocal basis. It is true that for the most part the agreements relate to goods rather than services but the access is extensive nonetheless.

Why should the Union not announce, unilaterally, and as soon as possible, that it would be its desire that the UK have at a minimum an agreement granting it access to the Single Market on terms no less favorable than any of its existing reciprocal agreements with third parties? I can see several distinct advantages of such a declaration. First it would change the existing damaging, bellicose atmosphere and mood, which are not auspicious for an amicable divorce. Second, it would not compromise any European interest from a commercial perspective. And third, it would allow that aspect of the negotiations to be handed over to the technocrats – the devil is in the details! – while allowing the more sensitive issues such as financial services, passporting and the like to be dealt with at the political level.

In the same vein, just about all Member States of the Union have bilateral investment treaties with third parties, which typically give extensive access to company directors, etc. Is it thinkable that the UK should not have similar privileges? Why should the same “most favored” principle not be extended as regards these privileges accorded to third parties?

Negotiating from a position of power, such gestures of good will by the Union would not compromise its interests; rather they would facilitate the negotiations by setting at least minimal targets to be achieved in the negotiations and send an important signal that the period of anger is over and functional pragmatism is back.

What then of the “discourage the others” argument? Here my views are decidedly iconoclastic but, I want to believe, at least merit a hearing.

The actual departure of the UK was not in my view the deepest harm inflicted by Brexit (thought of as a holistic set of events). The catastrophic damage to the Union was to grievously arrest the slow transformation of the European Construct from a community of convenience (concrete achievements leading to de facto solidarity) to a community of fate. By community of fate (and thankfully Isaiah Berlin re-Koshered Herders’ concept so abused by National Socialism) I mean the notion that whilst one can and should have deep divisions and conflicts within the Union as regards its policies, scope of action, methods of governance and the like, such divisions and conflicts have to be resolved within the framework of the Union, its Member States and their peoples being attached to each other indissolubly. The Exit option, a nod towards the residual sovereignty of the Member States (an indispensable nod, given that the very notion of high integration among sovereign states is the double helix of the European construct that differentiates it from Federal States) was always to remain the arm you never use. Brexit discourse, spilling over from the UK debate to the whole of Europe, regressed the Union back to a contingent, ongoing project, the viability of which may be challenged at any moment, depending on a material balance of costs and benefits. Unwittingly, in an almost panicky knee-jerk reaction, European discourse became one of “we have to come up with projects that will prove to the peoples of Europe that it is in their interest to maintain the Union”. To remain. Even if successful in finding such projects, this is a self-defeating approach, because of its contingent, cost-benefit logic, on which the future of the Union is now to rest. As we saw in the British debate on Brexit and we see in current Euro-speak, this logic inevitably leads to the politics of fear. As the Brexit debate in Britain progressed it became increasingly one of who could scare their adversary more effectively. The “discourage the others” argument in the current post-Brexit approach belongs to the same genus. Does one really want the future of European integration to rest on fear-driven support, scaring our peoples by setting up the UK as a reminder of the bad fate that awaits the heretics?

I cannot but think of millennial Christian doctrine – now abandoned – which held that the Jews should be kept as a miserable entity as a reminder of the fate of those who reject the Savior. It was a betrayal of Christian ideals.

So, think now the unthinkable – an approach which would afford the UK as comfortable a status as possible, even a form of Associate Membership. It would still be a second-class membership; whatever access the UK would have to, say, the Single Market, would be to a marketplace the rules of which would be determined by others. This is a self-inflicted damage that the UK will have to live with.

Brexit is a watershed. So, I would argue, instead of trying to stick the finger in the dyke let us live the watershed. If a UK status is appealing to this or that Member State, let it be. Those states would not in any event be helpful in a Union which needs some brave and decisive fixes to its structure and processes, not least the structure and processes of governance. For those who remain, most if not all, it will be a moment of willed re-commitment rather than scared, coerced, resentful and contingent inertia.

JHHW