Brexit: what the hell happens now? Book review
Posted on 18th Jan 2017 in Reviews
The Brexit vote took the nation by surprise. For those who voted to Leave, exiting from the EU can’t happen fast enough. But few seem to appreciate what is actually involved in achieving this. Ian Dunt’s book examines the options and implications, and makes clear that the referendum result was only the start of a long period of discussions, negotiations, decisions and agreements which will take years, if not decades, to conclude. Review by Paul Magrath.
Brexit: what the hell happens now?
A nightmare vision
“No deal for Britain is better than a bad deal for Britain.” That’s what a defiant Theresa May PM said yesterday, in her speech on The government’s negotiating objectives for exiting the EU. In the opening chapter of his book, Dunt shows us what “no deal” might actually look like:
Big Ben strikes midnight and Britain is out of the European Union. The talks have fallen apart in mutual acrimony. The UK has not secured continued membership of the single market. It doesn’t even have access. It is out of the treaty which waives tax on imports and exports. It has no trade deals with Europe or anyone else. It is on its own.
He goes on to give some idea of what that might involve. Long queues of lorries stopped at Calais by customs officials, detained and inspected. Exports of meat and eggs held up as samples are taken away for testing at hurriedly established inspection posts, struggling with demand while the products rot by the roadside. Thousands of businesses haemorrhaging cash as shipments are stopped and detained at ports around the world. Bureaucratic nightmares as hurriedly recruited officials attempt to deal with backlogs of reinstated “proof of country of origin” documentation. Tariffs slapped on products left, right and centre, and not just on the finished product but on the raw materials and components too. Banks and financial institutions sacking workers and outsourcing jobs to more advantageous economic climes. Trade disputes multiplying as Britain loses the protection of a standard WTO deal and has to deal with 163 different country relationships. British professionals unable to work abroad as their qualifications are no longer recognised under standard EU rules. And so on and so forth.
It’s a nightmare vision, deliberately painted so, as a shock to the complacency of those who thought Brexit would be a breeze. But, as Dunt then makes clear, these are “the consequences of a chaotic, hard Brexit.” At the time he wrote those words, some months ago, the government of Theresa May still had a choice. There were options it could take to minimise the fallout. Those options have now, by the recent pronouncements of the Prime Minister and her trio of Brexiteer ministers, Johnson, Davis and Fox, been cast aside. The single market is no longer an option. Holes have been dug, bridges burned. Whatever the optimists on the conflicted opposition benches may say, it is clear the government has gone for a hard Brexit. Whether it has also gone for a chaotic one remains to be seen, but the omens are not good. Ian Dunt tells us why.
The experts’ view
Dunt’s book cover is stickered with the label “For people who still believe in experts” and the book itself is a tribute to the patience and the pains taken by experts in ascertaining the facts and making rational predictions based on those facts. It is not a book for those who vote with their emotions, or by waving flags and shouting patriotic slogans.
Dunt has spoken to a large number of experts, most of whom are listed with thanks in the back of the book. They include experts on law, politics, trade, economics and diplomacy. He has not got his research off the side of a bus.
And now the book is available to all the MPs whom May PM has just promised a vote on the final exit deal (though not the option to prevent it). Thanks to a crowdfunding appeal by Justen Hyde, this book has been sent out to every MP, MSP & member of the Wales and Northern Ireland Assemblies. So even if the voters who swayed the referendum don’t appreciate the consequences of what they lurched for, the lawmakers who will be responsible for seeing it put into effect cannot plead such ignorance — and we can all hold them to account.
Anatomy of a crisis
Dunt begins by asking “What did we vote for?” The referendum question was a simple one — Should the UK remain a member of the European Union or leave the European Union? — but the answer given by the narrow majority was, as a result, frustratingly vague. It left any government tasked with implementing it a bewildering array of options, ranging from leaving the EU but staying in the single market and the customs union, through leaving them but joining the European Free Trade Association (which the UK left to join the EEC) all the way to the hard option of ending every single aspect of European cooperation and retreating behind the cliffs of Dover.
To confuse the issue, pollsters and opinion formers immediately after the referendum began explaining the vote in terms of issues unrelated to membership of the EU, such as the alienation of ordinary folk from the political elites, the fallout of the financial crash of 2008, or resentment about immigration generally (much of it from outside the EU). Even the pro-Leave campaigners almost immediately ditched the promise to divert that mythical figure of £350m a week to the NHS instead of to Europe. In short,
Politicians had found a big old pot of electoral mandate and they were going to use it to paint any picture they damn well pleased.”
Then there was the question of the process of leaving itself – governed by article 50 of the Treaty on the European Union (TEU) aka the Lisbon Treaty (and the subject of ongoing legal proceedings as to the role of Parliament in triggering it: see R (Miller) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin)). Dunt sets this out article 50 in full before explaining that this “brutal” provision was drafted as a safety valve, and never intended to be used except as a punishment mechanism. Once triggered by a nation, it gave that nation just two years to complete the “hellishly complicated” process of leaving. Within that period, the leaving nation must complete an administrative, legal and economic process.
Let’s stop for a moment and consider the legal Brexit process. The government has woken up to one aspect of this: the repeal (if possible) of the enactments by virtue of which Britain applies, directly or indirectly, European Treaty law in its domestic courts, chiefly the European Communities Act 1972. It has proposed a Great Repeal Act to preserve the trunk and branches of the law (so far as we want to keep its provisions) while removing, as though with a sweep of an axe, its roots in European soil. Dunt discusses this in a later chapter, pointing out that it is by no means as simple as the government seems to think it should be. Moreover, with its heavy reliance on the use of delegated powers under statutory instruments to amend or repeal the existing law, it introduces a great danger of lack of proper scrutiny.
But statute law is only part of the question. Though Dunt does not discuss this aspect of it, there is also all the case law since 1972 which has interpreted and applied those European-sourced laws.
Debaters on both sides of the membership question have quoted a famous dictum of Lord Denning MR in HP Bulmer Ltd v J Bollinger SA  Ch 401, 418 ( EWCA Civ 14) in which he characterised European treaty law as being
like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.
If Denning’s words in 1974 seem ambivalent, he either regretted his enthusiasm, or more likely felt emboldened by later events to express himself more forcefully, as the English nostalgist that he was, in opposition to the foreign juridical influx, in the introduction to a book, The European Court of Justice: Judges or Policy Makers? by Gavin Smith (London: Bruges Group, 1990), at pp 7-8:
No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses—to the dismay of all.
Those sea walls must now be rebuilt, and the “living instrument” of the common law restored to the heritage it has nurtured within these shores since the reign of Henry II and exported to the rest of the English-speaking world. However illusory the process of “taking back control” might be in the political and economic arenas, there is little doubt that English courts (except, say, where contracts are governed by foreign law) will be taking back control of English law. The rulings of the European Court of Justice will be no more binding than those of the Strasbourg Court of Human Rights always have been – ie merely “persuasive”.
What are we leaving?
One of the most shocking revelations in the wake of the referendum result was the 250% spike in google searches about the “European Union”. It seems many voters had no idea what they were voting to leave. And as Dunt explains, Britain has always been ambivalent about its place in the European project, preferring a commercial relationship and never really signing up the dream of political harmony that arose out of the ashes of World War II. Nor do British people really “get” the idea of the single market, or the four freedoms on which it is conditional.
Dunt provides a handy explainer of the history and structure of the EU and its institutions. Though evidently a Remainer, he is critical of its failings too (as indeed most remainers are).
In reality, the European Union is a well-meaning but internally contradictory experiment in transnational political organisation. For everything that is sensible about it, there is something absurd. And for everything regrettable about it, there is something to be commended.
What do we become?
A section of the book is dedicated to considering the positions of countries that have a relationship with the EU but are not part of the heart of it, such as Norway, Liechtenstein, Switzerland, and Turkey, and those such as Canada that have a special free-trading relationship. He considers the role of the World Trade Organisation in setting standards and rules for international trade deals. He discusses the issue of external tariffs, which are currently governed the EU, and which Britain will need to replicate or recalibrate individually, in the teeth of no doubt furious lobbying by different trading interests.
Even in [the] best of all possible worlds, Britain will still face protracted negotiations, requiring governing bodies which it does not currently have, at precisely the moment when it is most vulnerable due to a sudden change in its tariff and non-tariff arrangements with Europe.
Quite apart from our relationship with the continent and the rest of the world, there is the question of the relationship between the nations that make up the United Kingdom, and the effect of Brexit on the devolution settlements that have been achieved with Scotland, Wales and, most critically, Northern Ireland.
“At stake is nothing less than a reversal of two decades of careful progress since the Troubles. And yet [May’s] ministers have seemed largely uninterested in the impact of Brexit across the Irish sea.”
In the immediate aftermath of the referendum result, there was a surge in applications for Irish passports. (I would apply myself if my great grandfather hadn’t brought his young wife to England shortly before my grandfather was born. You need to have at least one grandparent born in Ireland.) But there was also a lively debate about the Irish border, the UK’s only external land border and set to become our only border with the EU. Would it be a “hard” border, with passport controls, or the soft permeable one we’d enjoyed even before both nations joined Europe?
The task ahead
At the time of writing his book, the government had given no clear indication of how it wanted to implement Brexit. May, in her “inane and tautological” phrase, had announced that “Brexit means Brexit” and had appointed three pro-Brexit “musketeers” to manage the process, Boris Johnson as Foreign Secretary, David Davis as Minister for Exiting the European Union, and Liam Fox as Minister for International Trade. Although they talked up their roles and hopes amidst a “fog of self-congratulation”, it was not clear exactly what they wanted. Johnson published successive articles contradicting himself on issues such as free movement. But the other two made pronouncements about trade that suggested leaving the single market. As we know, although it has taken six months to arrive at a position, May herself is now clear about that.
The task they all face is not just replicating trade deals with all the separate nations for which Britain formerly had a relationship via the EU. There is also the question of setting up again all the regulatory frameworks for farming, fishing, medicine and so on. All this must be done without going over a “cliff edge”. Dunt is not confident of their ability to pull it off:
What we can assess is that Britain’s government is approaching Brexit ineptly, misjudging its opponent, underestimating the challenges and prioritising its short-term political interests over the long-term interests of the country Our ministers have thrown away their leverage and failed to neutralise the advantages held by the EU. Through a mixture of ignorance and ideological frenzy they are driving Britain towards a hard, chaotic Brexit.
It’s hard to fault this analysis given what has happened since. In yesterday’s speech May clarified many of the points which seemed unclear when Dunt wrote this book. But the knowledge that Britain is indeed heading for a hard Brexit, call it what you will, in no way diminishes the sense that we are also heading for a chaotic one.
Whatever the Supreme Court says next Tuesday in the case of R (Miller) v Secretary of State for Exiting the European Union, it seems unlikely that article 50 will not be triggered when May wants to do it, and the process of negotiation, foreshadowed in her speech, and roundly queried by other European leaders today, will duly commence. Its success may well depend in part on the extent to which those charged with overseeing and approving it have taken the trouble to read their copy of Dunt’s intelligent and carefully researched book.
Paul Magrath is Head of Product Development and Online Content at ICLR. He tweets as @maggotlaw.