Brexit—What Academics Are Saying

On July 4, 2019, Professor AAA wrote: “There are two other possibilities: d) a fantasy, rejected by every single EU official each time it is floated, that the ‘deal’ can be renegotiated. And then there is e) crashing out without a deal.” The term “fantasy,” like “unicorns” used on another occasion, seems to me to be misplaced hyperbole.

First, as one-and-all get closer to the deadline, Oct 31, 2019, if the UK makes a credible threat of a hard Brexit (i.e., a Brexit without an EU-UK deal providing for something akin to current frictionless trade), the EU will have to consult its interests, the interests of its member states, and its citizens’ interests. Mostly EU negotiators will be mindful of the EU’s institutional interests. The EU is not in the black. Its current and next few annual budgets were arranged having in mind annual member payments by the UK into the EU treasury. The UK is a large net contributor to the EU budget. The continuing members will not want to pick up the shortfall caused by the UK’s exit—and that includes the German taxpayer—another large net contributor. In that situation, there might be some play in the joints (i.e., support for amendments to the deal now on offer, and further negotiations). 

Second, the Irish will also consult their interests. Again, if the UK makes a credible threat of a hard Brexit, the Irish will be faced with the unpalatable prospect of going forward without the current proposed deal and without its proposed backstop. That may mean that the Irish government, in order to comply with EU law, will have to have border checks and collect taxes for goods crossing the frontier into the EU common customs area from the UK, including Northern Ireland. In those circumstances, the Irish might be willing to reconsider their position and to allow the deal to be amended, but giving the backstop an automatic sunset (e.g., after 5 years) and/or giving each party (the EU and the UK) the unilateral right to terminate the backstop at any time. If the Irish are willing to live without the backstop as it is in the current proposal, surely the other EU members would be willing to redraft the proposal to support Ireland—a continuing EU member. After all, the backstop was only crafted by EU negotiators to support the Irish. If the backstop were amended in this way, it is likely that Prime Minister May’s agreement (as amended) would have the support of the entire Tory leadership, and concomitantly, the UK (on that basis) would continue to pay its EU member fees for the next few years into the EU budget.

Finally, other EU members will have some continuing interest to avoid a hard Brexit (just as the UK does): all (or nearly all) EU members have significant exports to the UK. German car manufacturers come to mind, as do the French and their agricultural products (including, e.g., wine and cheese).

Maybe the EU will refuse to reopen negotiations and maybe they won’t. I don’t have a crystal ball. But terms like “fantasy” and “unicorns” seem to me to lay claim to more predictive powers than most mere mortals have.

Professor AAA also wrote: “Under UK constitutional law, the UK’s approach to Brexit requires consent of the Parliament, and the Parliament will not agree to leaving without a transitional arrangement in place.” This seems to me to be unsupported. Professor AAA does not point to any legal authority for this view—not any ministerial order, not any statute, not any speaker’s ruling, and not any commentator’s pronouncement. I could see arguing that a new treaty (e.g., a deal) might require parliamentary authorization—before or after ratification by the executive. But if all the Government does is to run out the clock, thereby allowing EU membership (as a matter of public international law) to terminate by inaction, then it is certainly not obvious why any (further?) parliamentary consent is necessary. And the Government could plausibly make the argument (at least to the 52% of the public that voted for Brexit) that it already has parliamentary consent to do exactly that—to run out the clock—as Parliament delegated that decision to the people in the referendum and the Government is merely carrying out the referendum’s result.

Prorogation offers a means to stop an incipient Commons majority from stopping the Government’s Brexit plans—particularly any hard Brexit. But prorogation is not the only such means. All that the Government has to do is control the timing of Commons’ meetings and the agenda paper at those sittings, and then make sure a friendly speaker offers no opportunity to anti-Brexiteers to make a motion to stop the Government’s Brexit-related plans. In normal circumstances, that is exactly what is supposed to happen—with the exception that a Commons majority can bring down the Government in a no confidence motion (historically, this would customarily take place in the context of a motion for supply by the crown). If Tories are put to the hard choice of stopping the Government’s Brexit plans by bringing the Government down and forcing a new election, it is likely (in my view) that few Tories will rebel and those few who do will be easily made up for by DUP members, and by more than a few Labour members who are pro-Brexit (e.g., John Mann, Frank Field, Kate Hoey, etc). If the cost or consequence of rebelling is a new election, many rebelling Tories will lose their seats—this is particularly true in Tory constituencies which voted for Brexit in the referendum. If Tories are put to the choice of stopping the Government’s Brexit plan but in doing so risking the election of a Corbyn-led government in the near term, I think few will rebel.

Finally, Professor AAA wrote: “The other option—of having the new PM just run the clock out so that Parliament’s views become irrelevant—is also unconstitutional given the principle of parliamentary supremacy.” That principle is dead in the water until such a time as Brexit should occur. Until such a time, the UK Parliament and the UK is subject to EU law and the courts of the EU. Should Brexit occur, then we can again discuss the intellectual content of that now dormant principle.

Seth

Seth Barrett Tillman, Brexit—What Academics Are Saying, New Reform Club (July 5, 2019, 9:54 AM), <https://reformclub.blogspot.com/2019/07/brexitwhat-academics-are-saying.html>.