The Past, Present and Future of Brexit

An Introduction

Bibliographic Data

ID21792979
AuthorsUta Staiger (The London College, corresponding author), Robert Schütze (0000-0002-4374-9156, Durham University)
Year2022
Volume13
IssueS2
Pages5-8
Publication date2022-04-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueGlobal Policy (JOURNAL)
Journal identifiersISSN: 1758-5880 • E-ISSN: 1758-5899
PublisherWiley (PUBLISHER • GB)
DOI10.1111/1758-5899.13078
OpenAlexW4225138553
LanguageEN
References cited12

On 24 June 2016, the day after a small majority of the British electorate had voted in favour of Brexit, one of the most frequently googled questions in the United Kingdom was: ‘What does it mean to leave the European Union?’ (According to Google Trends, it was followed, perhaps inevitably, by the query: ‘What is the European Union?’). The retrospective nature of these enquiries is regrettable but may not surprise. Few had fully grasped the complexity of extricating the UK from a decades old union of member states forged in the ‘“middle ground” between international and national law’ (Schütze, 2016, p. 30) – with its own peculiar sets of institutions as well as the world's biggest single market. Indeed, in 2018 even the (then) Brexit secretary himself, Dominic Raab, had to admit that he ‘hadn't quite understood’ how reliant the UK’s goods trade was on crossing the English Channel, and thence, what the implications might be for a new border for trade within it (BBC News, 2018). Of course, Brexit did represent uncharted territory. No full member state had ever withdrawn from the European Union or its predecessors before (for the lessons of Greenland and Algeria, see Patel, 2018). Indeed, for many, the introduction of Article 50 TEU into the Union's legal order was merely meant as a symbolic gesture intended to placate the Eurosceptic forces within and without the United Kingdom – a gesture, to be sure, never to be used. Since the triggering of Article 50 in March 2017, Brexit has offered steep learning curves all around and at blistering pace – from the Irish border trilemma to Henry VIII powers, from adequacy decisions to GATT XXIV, from the fish we like to eat to the kind of chicken we don't. It also offered ample opportunities for analyses from many areas of expertise and disciplines, which only in their conjunction stood a chance of offering something akin of a full picture. In this way, Brexit is reminiscent both of a politically inflected ‘wicked problem’ (Martill & Staiger, 2018; Rittel & Webber, 1973) and of a 21st century grappling with a phenomenon every bit as big and complex as Donald Puchala's elephant (Puchala, 1971). Despite all this complexity, Brexit has brought to the fore a simple question – destined, perhaps, to be the most important political question of the 21st century: how should political power be organised between states? Has the intensity of economic and social globalisation irreversibly impacted national sovereignty and the ability of nation states to unilaterally guarantee peace and safety to their populations? How can global markets be controlled, global pandemics be managed, and global climate change be tackled while allowing for forms of democratic agency and control? Can national parliaments ‘take back control’ and seek international solutions, or do they need to pool sovereignty within a bigger, supranational unit? What makes the UK’s exit from the EU so fascinating, as well as consequential, is that it offers one early answer to this question, which – despite the invocation of ‘Global Britain’ – ultimately favours the nation state and national sovereignty. If ‘Westminster’ managed to trump ‘Brussels‘ in a battle over where ultimate political authority should lie, it was in no small measure the EU’s perceived democratic deficits, particularly over popular contestation and control of the policy agenda (Hix & Follesdal, 2006), that won the Brexit day. And yet, ironically, the subsequent process of ‘getting Brexit done’ also revealed the limits of national democracy in the arena of international trade negotiations, where prerogative powers still prevail and parliamentary scrutiny, and the role of the courts, are limited (Schütze, 2017). Half a decade after the referendum, and reams of publications later, this special issue of Global Policy wants to take a step back from the heated and relentless maelstrom of events. We set out to consider Brexit from a wider diachronic perspective, in order to examine not only its complicated present, but also its past and possible future(s). To this end, we have structured the special issue into three sections with four articles each, plus a special spotlight on the Irish border and the Ireland/Northern Ireland Protocol. Having enlisted experts in history, law, political and social science, we seek to gauge ideational factors and historical pathways that prepared the way for Brexit; discuss the significance of some of the legal, formal and constitutional features of the process; and indicate probable consequences going forward. While by no means assuming all-inclusiveness, we nonetheless hope to do justice both to the idiosyncrasies of the UK’s exit from the EU and to draw out its wider repercussions and significance. The first section, Past, drives home the point that Brexit qua concrete phenomenon did not appear out of midair. The narrative of exceptionalism (Bogdanor, 2019), highlighting the history of the island nation with its common-law system and commonwealth ties, likes to cast Brexit as an instance of historical determinism. Certainly, cultural and ideational factors have contributed to political, campaigning and bargaining strategies the UK chose vis-à-vis European integration and withdrawal (Martill & Staiger, 2021). Yet they are better conceptualised as background influences. In this issue, Wolfram Kaiser, following Freistein et al. (2021), draws on the notion of pathways, both informal and formal – in a process that was historically contingent, rather than inevitably deterministic. In his opening article, Kaiser takes an in depth look at four distinct features during the pre-accession period from 1945 to 1972. These, he shows, created legacies that facilitated Brexit decades later, especially when activated by a particular constellation of politicians. Membership of the European Economic Community, Kaiser posits, was never more than a measure of last resort, with expectations of political dividends that were often overly inflated. It was, so to speak, a political ‘currency’ to gain advantage in a domestic party political competition, while British diplomatic shortcomings antagonised European partners. Yet the UK’s membership of the European Community has also been one of substantial political and policy influence. In the early days of accession, as Brigitte Leucht's article illuminates, British membership significantly boosted the development of EEC consumer policy, which was also exemplary of British preferences for an economic model of European consumer citizenship over a social or democratic rationale. Her article nicely highlights the historical tensions between UK preferences for market liberations and efforts to safeguard national regulation – tensions, which would resonate throughout the UK’s membership years. Sir Stephen Wall picks up some of these themes when he examines the role of the UK’s arguably most influential politician on Europe: Margaret Thatcher. Her premiership (1979–1990), Wall argues, brought to the fore her profoundly ambivalent opinions of the European Communities. To her goes much of the credit for creating the single market in goods and services, which so deeply marks today's Union. But in a period of often openly conflictual engagement with the EEC, she also ended up creating the basis, even if unintentionally, for the later process towards monetary union she so strongly resisted. This ambivalence, not least in Conservative party politics, deeply shaped Brexit decades later. In the concluding article of this section, Robert Schütze revisits the history of Britain ́s EU membership as one of ever-increasing scepticism towards transfers of legislative powers to the European Union. He describes the UK’s position in the post-Maastricht ‘Europe of bits and pieces’ (Curtin, 1993) as one of ‘semiattachedness’. To further develop the point, Schütze picks out legal ‘dissonances’ – from the European Communities Act 1972 to the 2017 Miller judgment – rooted in the fundamental clash between parliamentary sovereignty, the core principle of British constitutionalism, and the direct effect and primacy of EU law. The second section dedicated to the ‘present’ – though this has proven a moving target – focuses on the process of withdrawal itself. The articles in this section do not seek to revisit the substantive choices that emerged during the negotiations; but rather to examine formal, constitutional and governance features of the Brexit negotiations. As some have argued, Brexit heralded a ‘constitutional moment’ for Britain (Elliot, 2020), with repercussions for the relationship between Parliament and the executive, the future of devolved governments, in particular Northern Ireland, and an ongoing discussion over the role of the courts. But for the EU, too, as Brigid Laffan citing Luuk van Middelaar (2019) points out, Brexit also had a transformative effect – which, at least for that time, was not only engaged in the politics of rules but the politics of events. Adam Cygan's and Roger Masterman's articles start this section by investigating the repercussions of Brexit for the UK’s constitutional order. Cygan examines the legal and political effect of the referendum on Parliament. He is specifically interested in the constitutional tensions that arose from bridging the principles of parliamentary sovereignty – most MPs had voted to remain – and popular sovereignty as expressed in the majority of the (albeit nonbinding) referendum vote. Considering the Article 50 process, he also discusses how the Miller I and Cherry/Miller II cases impacted Parliament's relationship with the executive. Masterman, in turn, looks beyond Westminster and Whitehall towards the impact of Brexit on the UK’s own territorial constitution. Brexit, he argues, has demonstrated the continued influence, if not dominance, of the central UK level government over devolved administrations. In the design and outcome of the referendum, in ensuing litigation and in the repatriation of EU competences to domestic institutions, Brexit indeed deepened fissures in the UK’s devolutionary constitution and exposed its continued democratic deficits. Eleni Frantziou complements this analysis by considering Brexit's formal character within and against a quasifederal framework of the European Union. While Brexit displays, she argues, an ideological alignment with secessionism, it would not meet such a definition under international law. However, Frantziou also alerts us to the fact that it is precisely the EU’s formal status as an association of states, rather than a federal state, that made Article 50, its unilateral withdrawal clause, too inflexible to allow for a – distinctly preferable – dialogical and negotiated form of secession. But how did the EU, as a complex compound polity relying on rules, shared institutions, principles, and processes, respond to and govern the UK’s withdrawal as a member state? Brigid Laffan analyses the Union's response as a form of legal and technocratic process. This process, she argues, was embedded in a strategic approach across the three orders of governance elaborated by Kooiman (2003) – from day-to-day problem solving to creating procedures and institutional settings and an overarching governance framework that binds the system together. By so doing, it is claimed, the Union transformed an endogenous shock into an exogenous one. The ‘present’ of Brexit has stretched over a very long five years. But, despite Boris Johnson's vow to ‘Get Brexit Done’, there is much ‘future’ yet in Brexit. The withdrawal agreement is only one part of the story (if a potentially troublesome one indeed). Not least the implementation of the Northern Ireland protocol is likely to keep the UK and EU closely interlocked for years. But given the UK’s decision to leave the customs union and the single market, the Trade and Cooperation Agreement (TCA) is equally likely to offer both pressures and incentives to develop and improve the deal in the future. Yet this section also examines the likely impact of Brexit on the UK as a polity itself, its conception of democracy, and the extent to which it may or may not be bound by EU policies and laws. The first two articles both take their point of departure in Brexit's stated objective to ‘take back control’. Albert Weale's concern is with the very conception of democracy the ‘Vote Leave’ slogan conveyed – a conception predicated upon the notion of national sovereignty and expressed by the traditional Westminster model. Weale discusses the constraints of such a model given its functional and democratic disadvantages in a context of global interconnectedness – disadvantages that the very development of the EU highlights. For Weale, the Westminster model may have a past, but it does not have a future. Thereafter, Piet Eeckhout seeks to assess the extent to which control of its laws has returned to the UK following Brexit. While, like Weale, he is concerned with the reconciliation of national sovereignty in a globally interconnected world, Eeckhout focuses more specifically on the future relationship between UK law and EU law. Concentrating on trade and economic relations between the United Kingdom and the European Union, he highlights the difficult balancing act of the TCA regarding future regulatory powers and the inevitable constraints of the ‘Brussels Effect’ – the global reach of EU standards – on UK regulatory autonomy. The third article in this section, coauthored by Catherine Barnard and Emilija Leinarte, aims to highlight the extent to which the TCA provisions on goods significantly differ from the EU’s traditional free movement regime. The free movement of goods provisions indeed offer a legal barometer for the trade regression that Brexit will cause: because when measured against the free trade principles of the EU internal market, the TCA’s equivalent provision cannot simplistically be characterised as an EU ‘minus’. On the contrary, as the authors show, they are much closer to the provisions within the World Trade Organization and most free trade agreements and, as such, constitute a radical break with the UK’s past EU membership. With Brexit having taken the UK out of the EU internal market, many a trade barrier will thus reemerge. Concluding this section is Maria Lee's article on what Brexit may mean for the future of UK domestic law and internal institutional arrangements. Her contribution fastens on the future of British environmental law and, particularly, environmental accountability, in light of the fact that EU laws no longer apply in the UK. In her article, Lee argues in favour of strategic and collective civil society action to shape the future arrangements provided by any post-Brexit UK environmental legislation. The environment, as a reference area, here promises many valuable insights – across the national, supranational and global level. Complementing the three sections, we place an additional focus on an issue that cuts across the past, present and future of Brexit. Northern Ireland's unique historical, political and geographic position, deeply connected to both Britain and Ireland, creates particularly complex challenges in the context of the UK's withdrawal from the EU. It thus requires special attention in the context of this journal issue. Focusing especially on the Northern Ireland protocol, attached to the EU–UK withdrawal agreement, the precarious position(s) on the island of Ireland are the subject of Katy Hayward and Milena Komarova's final article. Throughout this special issue we have aimed to place Brexit at the junction of two intersecting axes. On a concrete plane, we consider Brexit as a specific phenomenon delimited in a particular time and space, as a specific process with a prehistory, contingent and complex influencing factors. On another, more abstract plane, we are equally interested in the dilemmas our global interconnectedness today places at the centre of democratic thought, constitutional orders, legal systems and institutions – dilemmas accentuated by Brexit itself. These dilemmas were at the very heart of the work by the late David Held, the founding editor of Global Policy, and the original coeditor of this special issue before his untimely death. We dedicate this issue to him. Uta Staiger is Associate Professor of European Studies and director of the European Institute at UCL. She is also Pro-Vice-Provost (Europe), a strategic role shaping UCL engagement with the European Higher Education sector. Her research sits at the intersection of modern European thought, culture, and politics, with Brexit-focussed publications including the open-access co-edited volume Brexit and beyond: the future(s) of Europe (UCL Press 2018) and work on the cultural sources of British hard bargaining (JCMS 2021). Uta is a member of the Russell Group EU Advisory Group and a Senior Fellow of the Centre for Britain and Europe at the University of Sussex. Robert Schütze is Professor of European Union and Global Comparative Law at Durham University (United Kingdom) and Luiss University (Italy). He co-directs the Global Policy Institute (Durham) and is a regular Visiting Professor at the College of Europe (Bruges). He is a co-editor of the Oxford Press Series on ‘European Union Law’ and ‘Comparative Constitutionalism’; and he is the author of a leading textbook on European Union Law (Third Edition, Oxford University Press, 2021). He has published three monographs and eight edited collections, including The United Kingdom and the federal idea (Hart, 2018)

Brexit · Economics · European union · International trade · Member state · Member states · Political science · Single market · Sociology · Surprise · European Union Policy and Governance · Global Financial Regulation and Crises · Law · State Capitalism and Financial Governance

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