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Analysis #9

Why is Brexit Proving so Difficult to Implement?

Christopher Bickerton and Richard Tuck

11 June 2018

Efforts to implement Brexit have been shambolic, yielding precious little progress. This is not because of the intrinsic impossibility of the task, but rather the legacy of Britain's integration into European structures, which has left the political and bureaucratic establishment unable to imagine a future for Britain outside of the EU.

Brexit is testing to the limit the capacities of the British body politic to implement a decision made in a national referendum. Since the vote a year and a half ago, the shadow of Remain looms large. Prominent figures regularly invoke the hope of reversing the result. The pro-EU philosopher and public intellectual, A.C. Grayling, described Brexit as a “coup” based on a “gerrymandered electorate”, a view which makes a reversal of the result almost a democratic duty and imperative. However, to understand the appeal of Remain amongst certain elements of British society, it is not enough to refer to the unchartered waters and technical challenges of leaving a highly integrated and legally complex regional block. Nor is mere stubbornness doing all the work. The "Siren call" of Remain is a symptom of deeper features of British state and society. We need to understand these if we are to puncture the commonly heard desire to go back to "the way things were" before the 23 June 2016.

Britain’s transformation from nation-state to member-state

 

Many have described the UK as an awkward member of the EU. Since joining in 1973, it has remained on the fringe of the integration project, suspicious of the intentions of its partners and ever-ready to consider the whole project of ‘ever closer union’ as an anti-British plot dreamed up by the arch-enemy, the French. This ‘Yes, Minister’ view of the UK’s place in the EU makes for good television comedy but it fails to correspond with the historical record. Since it joined in 1973, and particularly after a meeting in Fontainebleau in June 1984 settled the fight over the rebate to Margaret Thatcher’s satisfaction, the UK has been a leading member state of the EU.

 

It has been one of the architects of some of the most significant episodes in recent European integration history - from the Single European Act to the enlargement to the East and closer cooperation in justice and home affairs and foreign and security policy. To be a ‘member state’ is not just a legal title, a juridical term that describes countries who are within the European legal orbit. It also means that belonging to the EU has become part of what it means to be a state; membership plays an existential role for the states concerned. As the British historian Alan Milward observed, the EU has not pushed states to one side or taken their place. Rather, it has led to a redefinition of the meaning of statehood in Europe.

 

The authority of a member state lies only in part in its relationship to its own national population. To this vertical source of authority (from the people up to the government), we have to add a horizontal source of authority, the authority that comes from being part of a wider community. This is authority conferred by national governments upon each other and their respective officials as they participate in EU policymaking. Because the interaction is so intense – especially in times of crisis –national politicians and national officials often feel a greater sense of affinity and obligation to their European peers than to their own national citizens.

 

Over time, this horizontal source of legitimacy has reshaped European states, transforming them from nation-states into member states. An illustration of this change was David Cameron’s efforts at renegotiating the UK’s role within the EU. In his correspondence with European Council President, Donald Tusk, it is difficult to tell if Cameron’s goal was to change the relationship between the UK and the EU institutions. An equally plausible interpretation is that he was trying to reshape the European project itself. Cameron writes that his proposals can “benefit all Member States” and can “benefit the European Union as a whole”. His justification for wanting to reform economic governance is that given the future potential disparity between Eurozone and non-Eurozone member states, the integrity of the Single Market is at stake. He writes that the UK is “seeking legally binding principles that safeguard the operation of the Union for all 28 Member States”.

 

Cameron deployed the very language about the integrity and unity of the EU28 used by Michel Barnier today in the negotiations with the UK over Brexit. Cameron’s vision for a new kind of EU runs through his renegotiation efforts. Far from signalling great hubris on his part, where he assumes that the UK can stand in for all EU member states, this tells us that in his mind and in the minds of the British team negotiating with Council officials, the boundary between British and European interests were indeterminate. Indeed, it came quite naturally to think in terms of Europe as a whole when communicating what the British government wanted to achieve in the renegotiations. Seen in this way, what follows comes as no surprise. When the EU referendum campaign began in earnest, the renegotiation package - so painstakingly constructed during six months of European diplomacy and announced by Cameron after the European Council summit meeting of February 2016 - disappeared entirely from view. Cameron’s “new deal” with the EU was irrelevant because, from the British public’s perspective, it had never really been about them or their concerns at all.

 

Brexit has fundamentally challenged the “member stateness” of the UK. It has obliged politicians and officials - whose habits and practices have become accustomed to the consensus-building practices of the EU’s institutional architecture - to dust off the old garb of the nation-state. This is the unfamiliar world where social demands form the basis of the national interest and where the authority of the ‘nation’ trumps any other competing obligations. Article 50 squeezes this process of state transformation into an impossibly short two years. Brexit has thus forced onto the British state a curious kind of schizophrenia: it is two kinds of state at once, member state and nation-state, and the combination is proving destructive. As Ross McKibbin observed back in 2014, the EU has become “as much part of the structure of the British state as the Union with Scotland once was”. Leaving an organization that has become the pillar of your identity, legitimacy and authority was never going to be simple.

 

Labour’s conversion to the EU project

 

The continuing pull of Remain also stems from the conversion of the British Labour Party to the cause of EU integration. The official position of the Shadow Cabinet is currently to try to stay in both the single market and the customs union “indefinitely”, and at the least for four years or so. It must be understood by everyone who wants real change in Britain that this is an absolutely disastrous position to adopt. Anyone who looks at the old left-wing parties across Europe can see quite plainly that they are in irreversible decline, and even the new radical parties that sprang up after the crash of 2008 such as Syriza and Podemos have an air of defeat about them. What happened in France this year is - as so often in the past - the harbinger of events throughout the Continent: the French Socialist Party was all-but wiped out in presidential and parliamentary elections in May and June 2017. If the Labour Party continues down the road it has apparently now chosen, it will not escape the same fate.

 

The EU does not wish to become a super-state, but that is in part because with regards to markets in general it prefers that states do not involve themselves at all. The EU is a structure designed to facilitate the activity of corporations, and to some extent individuals, and to restrict the scope of state power. This can easily be read, particularly by Tories, as an attack on the old states of Europe in the interests of a new one, but in fact it is the latest stage in the long history of capitalism’s attack on politics as such, a history in which Margaret Thatcher was a major player. One of the great paradoxes of Britain’s relationship with the EU is that the EU in many ways fulfils the dreams of the Thatcherites. And yet, it is the Labour Party’s attachment to the EU that today is driving the support for Remain even after the 2016 referendum.

 

To grasp the origins of this attachment, we have to return to the original decision to enter the Common Market. When a large part of the Labour Party opposed entry into the EEC in the 1960s and 1970s it knew what it was doing. In the great discussion inside Wilson’s Cabinet at Chequers on 22 October 1966 which effectively committed the Labour Party, and therefore British governments of whatever political complexion, to continue to seek entry to the EEC, the central concern was (as Richard Crossman put it in his diary):

 

whether the Commission in Brussels would really deprive us not only of some of our sovereignty but of some of our power to plan the economy? Would investment grants be allowable or not? Would we still be able to see that new factories are put in Scotland rather than in South-East England?

This was the heart of the matter for the socialists in Wilson’s government. A few months later Crossman noted that:

Today Barbara [Castle] made a tremendous speech saying that entry would transform our socialism and make us abandon our plans. In a sense she’s completely right. If anybody wanted, apart from myself, Britain to be a socialist offshore island, entry to the Market would mean the abandonment of that ideal. Up to the July freeze [on wages, for the last six months of 1966] it was still possible to believe that we in the Wilson Government would strip ourselves of the sterling area, withdraw from East of Suez, and take the Swedish line of socialism... but now it is felt by almost everyone that it’s too late.

People like Crossman and Castle understood that the choice Britain was about to make was between continuing in a kind of imperial role, and reconfiguring itself as a Scandinavian social democracy.

 

That the choice took this form had been made perfectly clear in a staggering memorandum two years earlier by Con O’Neill, at the time Britain’s Ambassador to the EEC. Without membership

we can decline again to what was for so long our proper place: but if we choose this course I feel we must be prepared for the decline to be rather rapid. In particular, I feel that unless we succeed in creating a satisfactory relationship with Europe we may have declined in a relatively short time into neutrality ... a greater Sweden.

A majority of Wilson’s Cabinet fell for this; but given that by the end of the century Britain had officially withdrawn its troops from “East of Suez”, had abolished the sterling area, and had devalued the pound, it would seem that - as so often - the advice from the Foreign Office had been wrong in every particular. Who on the Left now, looking back, would not have preferred Britain to be a “greater Sweden” for all those years, rather than enmeshed in the expensive and futile task of “punching above its weight” (something most skilled boxers advise against)?

 

Brexiters have often been accused of nostalgia for Britain’s vanished greatness, but it was the pro-Europeans who were transfixed by a fantasy that Britain could avoid being (in O’Neill’s revealing words) in “our proper place”, and the anti-Europeans who were - and still are - the true realists. Labour when it returned to opposition in the Heath years saw this, but Wilson again fell for the temptation to endorse membership in 1975; the opposition from a broad swathe of the party was still considerable, however, and in the early 1980s succeeded in making Brexit (though the term had not yet been coined) official party policy. This was, and should still be, the natural position for a left-wing party to adopt.

 

In the last decade or so of the twentieth century, the Conservative and Labour parties have swapped places on Europe. This is often explained by the impact of Jacques Delors’s famous speech to the TUC in 1988, which promised that the EEC could be used to promote workers’ rights: fear of Delors, it is said, drove Tories to Euroscepticism, while his promises drove Labour to increasingly unquestioned support for the EEC. There is some truth in this, but Delors’s promises were quite quickly revealed as empty, and by the time of the Major government the Tory establishment could once again feel quite comfortable with membership. By the year 2000, one would have expected the old verities to have reasserted themselves, and most Tories to be in favour of the EU and most members of the Labour Party to be against it.

 

That this did not happen can best be explained on the Tory side by the fact that many Tories still had a romantic vision of the nation state. As we know, Marx and Engels argued that among the principal victims of capitalism were the old nations, as the bourgeoisie “through its exploitation of the world market [has] given a cosmopolitan character to production and consumption in every country”. The Tories who opposed this, at least in the form of the EU, might have been what Marx and Engels termed “Reactionists”, but at least they did not run headlong into the arms of world capitalism, as so many on the Left have unwittingly done.

 

To continue with the Marxist, or in this instance the Hegelian, terminology, there is a kind of cunning of capitalist reason, in which people who call themselves socialists are in fact without realizing it doing capitalism’s work for it. Those on the Left who continue to support the EU, out of what they vaguely feel is a kind of cosmopolitanism, are a tragic example of this. In the same way, the Tory Eurosceptics are governed by the cunning of socialist reason: their attachment to the old nation state is what will permit the reappearance of socialist politics in Britain.

 

It is harder to explain what happened to the Labour Party. But chief among the reasons must be the Blairite programme, which consisted essentially of reconciling the party to the structures of modern capitalism through “public-private partnerships” and the like; the abolition of Clause Four signalled that the kind of socialism which the EU impeded would no longer even be an ambition for the Labour Party. For obvious reasons this was not a natural position for the party to adopt, and those who pushed for it would naturally welcome the existence of a constitutional order which removed the possibility of any alternative. The EU was in effect Blair’s most important weapon in his fight to change the party, and his continued devotion to it is no surprise.

 

But Blair was the most visible symbol of why the old left-wing parties across Europe were bound to implode. What could they offer other than an alternative set of managers for the neo-liberal order, and various tweaks which (they hoped) their conservative opponents would not themselves come up with? Electorates are not stupid, and they see the hypocrisy of politicians who continue to call themselves “socialists”, or “social democrats”, or “left-wing”, but who can give no real content to these descriptions any more. In Britain, the Labour Party has not imploded, though many commentators predicted its demise at the last general election; but if it continues to support a “soft” Brexit, there is no reason to think that it will not eventually suffer the same fate as the Continental parties. It is in a paradoxical position at the moment. Many of its supporters, especially the most vocal ones, are Remainers. This holds true not just for those who supported New Labour in the past but also those thoroughly convinced by what Jeremy Corbyn is offering.

 

Their reasons for being so are mostly to do with a sense of identity. But the survival of the party requires that it can offer the electorate something other than the Blairite pabulum. Its success in the election followed the sudden realisation on the part of voters that it was doing just that, which makes Labour’s current position on the EU even more contradictory. If the Labour Party seeks to stay in the EU, or something functionally equivalent to it, in order to satisfy the Remainers, it will eventually destroy itself as a genuinely left-wing party.

 

At the end of George Bernard Shaw’s Heartbreak House, as the bombs begin to fall, Captain Shotover asks “Do you think the laws of God will be suspended in favor of England because you were born in it?” Many Labour Remainers seem to think that the laws of logic will be suspended because they are English, and that they can revive the Labour Party by binding it to one of the most powerful engines of capitalism which has yet been invented.

 

"There Is No Alternative"

 

We cannot fully grasp the hold of Remain over so many imaginations without exploring our contemporary attitudes towards the economy and economic life. Central to the problems in implementing Brexit is the belief that economic integration in Europe has gone so far as to make any uncoupling of the Brexit kind cataclysmic in its effects. Some of this thinking, particularly within the Treasury and the Bank of England, took a bruising immediately after the June 2016 result when some of the predicted economic consequences failed to materialize. But this attitude has been easily revived in the context of stalled negotiations and murky ruminations about the dire effects of a ‘no deal’ that now dominate public discussion of Brexit.

 

Some of this fear comes from a misunderstanding of the actually existing state of the European economy. Economic integration has – owing to the slow construction of the Single Market – gone a long way but Europe is still organized around the existence of separate national economies. In many ways, this is inevitable: when government spending amounts to between 40% and 50% of GDP, economies can only really be national in form. A single European economy simply cannot exist when economic life within EU member states remains so overwhelmingly shaped by national government spending.

 

Trade integration has not led to as much specialization in Europe as we might think. Some concentration of economic activity has taken place, but often this reflects pre-existing patters of expertise, as with finance in the City of London. Much of the trade in Europe is between similar goods, so-called “intra-industry trade”: Italy sells coffee machines to Germany and Germany sells coffee machines back to Italy. If a single European economic area existed, then we would see far more evidence of comparative advantage and greater degrees of geographical specialization.

 

It is testimony to the ideological power of the financial services in the UK – whose reliance upon “passporting” in order to be able to function across the whole of the Single Market is a key part of the City of London’s continued success as a financial centre – that we imagine the whole of the European economy to be as integrated as banking operations are. But that is not an accurate picture. Diversity amongst its members even characterizes the smaller, 19-member Eurozone. When a shared currency was introduced in 1999, it was assumed that it would lead to convergence across the Eurozone, with business cycles and key macro-economic trends within member states aligning with those in other Eurozone member states. What we have seen is quite the opposite: growing divergence and differentiation within the Eurozone, underpinning the never-ending “Eurocrisis”.

 

It would be wrong to dismiss the reality of complex trading patterns where products often include materials and components sourced from around the world. Imposing tariff and non-tariff barriers in these cases disrupts production patterns. However, we should not focus on tariffs and non-tariff barriers at the expense of some of the broader forces that are reshaping economies and the world of work, from automation through to “reshoring” and “nearshoring”, trends that complicate our conventional understanding of globalization. One of the most striking and unsung facts about the EU is how national borders are still decisive in dictating economic flows and in shaping the life chances of individuals.

 

What lies behind the apocalyptic tone of the discussions about the economic effects of Brexit is not the overwhelming force of economic integration across the continent, which is patchy. It is rather a much deeper crisis of our collective imagination. What we see is that change is experienced by almost everyone as a painful and needless form of disruption, something akin to vandalism. It is very rare, by contrast, to hear anyone within the UK describe the economic effects of Brexit as a transition towards a new state of affairs, or toward something different and even perhaps something better. So accustomed we are to the idea of market integration and the steady dismantling of barriers to goods, services, capital and labour, that we experience anything different to this as a threat.

 

Far from being the harbinger of chaos, Brexit signals a more profound political change, a break with a longstanding tendency to think of the economy as an apolitical space assessed only according to an efficiency criterion defined by the market itself. The reason we have seen a pan-European collapse of the Left across Europe in recent years is not because people have simply given up on socialism. It is that people have begun to understand that staying in the EU obliges all political movements who accept this to shy away from offering their citizens anything which strays too far from the liberal capitalist norms of the EU.

 

Very few supporters of the EU on the Left, particularly in this country, display any sign of really understanding its character and social purpose. Their enthusiasm is usually based on a rather vague cosmopolitanism - the thought that the EU binds nations together, and that supranational entities of this kind represent at least one step towards the brotherhood of mankind. When they hear critics of the EU on the Right say that it is becoming a super-state, their response is often, “So what? What was so good about the British state, and why should it not be superceded by a European one, with all its appealing trappings of (potentially) global power?” People whose liberal great-grandfathers would have enthusiastically managed the British Empire are now keen to manage the European one.

         

The irony of this attitude is that it quintessentially and short-sightedly British. It presumes that the EU, and some future European state, is like the traditional British state writ large, and that the citizens of such a state would be able to mould their own way of life through transparent and effective political processes. This is not done intentionally, or in a hubristic way, and as with saw in David Cameron’s efforts at renegotiation, it often coexists with an equally unthinking assumption that British and European interests are interchangeable. Nevertheless, the EU is simply not like this at all, nor is it at all probable that it will ever become like it.

 

The EU as a constitutional order

 

The best way of theorizing the EU at the moment, and for the foreseeable future, is that it is a certain kind of constitutional order. This is not imposed from above, as the EU has very little power to impose anything, at least not in the coercive way that we associate with nation-states. Rather, as legal theorist Joseph Weiler has observed, each member states imposes this order upon itself, in a self-limiting sort of way. For this reason, the EU treaties function as constitutional laws but without attacking or setting themselves against the legal sovereignty of each member state in a confrontational manner.

 

The component nations of the EU continue to possess the ultimate right to decide their own futures, and they continue, for example, to have independent representation at the U.N. But the treaties and their attendant juridico-administrative apparatus do radically diminish the power of the legislatures in each country, whilst at the same time expanding the power of the executives. The force of the EU’s constitutional arrangement lies precisely in the willingness of the member states to impose it upon themselves.

 

The British are not used to this kind of political structure, and their preoccupation with sovereignty is the consequence of the fact that they used to possess an anomaly in the modern world, a legislature which really was the sole source of authority in their country. Until 1972 British fundamental laws, such as the Act of Settlement, the Act of Union, and the Parliament Act, were simple Acts of Parliament, capable of being changed at the next general election, and earning respect when they were not changed. But after the passage of the last of these kinds of laws, the European Communities Act of 1972 (passed, it must be remembered, in the teeth of Labour opposition, with a majority on the second reading of only eight, and not many more on the third reading - so much for the Remainers’ claim that the majority in the Brexit referendum was not sizable enough), Britain has had something like the default constitutional structure of a modern European state.

 

The Wilson government recognized this when it proposed a referendum to legitimate the accession to the EU, and 40 years later no one seriously questioned the need to put Brexit to a popular vote. The odd twist about Brexit, however, is that it was a constitutional referendum the effect of which was to eliminate a constitutional order of this kind, and restore something like the powers of Parliament before 1972. One might say that Parliament now for the first time clearly rules on the sufferance of the people, just as in reality the monarch also holds office on their sufferance, and could be dethroned by a referendum; but it is Parliament, and not any other structures, to which they have given power.

 

Constitutions are not neutral, and the EU treaties impose a certain kind of economic and social order on each state, which they cannot alter unilaterally, and which they cannot alter collectively without completely rethinking the basic agreements of the Union. People on the British Left are accustomed to the idea that the United States Constitution, and the U.S. Supreme Court, are formidable barriers to certain natural political programs: campaign finance reform requires either a constitutional amendment or the slow and unreliable business of altering the political composition of the Court over several Presidencies. The British Left generally regards this as absurd, but it seems not to realize that the EU is far worse in this respect - a judgement of the ECJ based on the foundational “four freedoms” is to all intents and purposes unalterable.

 

Political constraints of this kind are intrinsically hazardous: they may work in our favour at the moment, but what do we do when the judges turn against us? Even if the jurisprudence of the EU were exactly what the Left wants, it would still be the case that it should not drink from the poisoned chalice. But as a matter of fact the constitutional order of the EU, as Wolfgang Streeck in particular has emphasized, consistently pushes in the direction of a “neo-liberal” capitalism. If you base your fundamental legal order on the freedom of individuals and companies to move capital and labour as well as goods and services, and you hand the legal order over to judges who are products of the late twentieth century, you are bound to get rulings which are inimical to traditional socialism.

 

For example, lowering corporation tax to attract industries into a deprived region has been judged by the ECJ to be in general illegitimate state aid to the industries, and this has been recognised by successive British governments as a continued obstacle to the development of Northern Ireland. Similarly, old arrangements which privileged unions, such as the dock labour scheme in Spain which (like the pre-Thatcher dock labour arrangements in Britain) gives certain unions the monopoly on unloading cargo, are under attack as a restriction on “freedom of establishment”.

 

The corresponding Norwegian dock labour scheme has already been abolished by the Norwegian Supreme Court acting under the rules of the EEA, something which illustrates that there is little difference in these respects between the EEA and the EU - and that no member states have any power over these rulings, irrespective of whether they are in the EU or the EEA. Though the EEA has sometimes seemed a desirable alternative to the EU, from the point of view of the Left it is no different. Membership of it would simply deliver the economy into the hands of the Conservatives in perpetuity, an astonishing thing for the Labour Party to contemplate.

 

Conclusion

 

All of these reasons together explain the “siren call” of Remain. They tell us why the government is finding it so difficult to implement the decision of the EU referendum of 2016. The 52% who voted for Brexit have no identifiable political voice, no common political identity, and no agent of their will. This is because the British political class has been, over the years, thoroughly embedded in pan-European policymaking, where executives and officials rule in the place of national citizens. The political vacuum that opened up the day after the referendum vote still echoes around Westminster. Government officials are reconciled to the need to execute Brexit but there is no political leadership and no plan for the civil servants to carry out. It is common but quite unfair to accuse officials of a lack of foresight, as if this were blame for the current state of affairs rather than the absence of political will. What we need most urgently now is political leadership and a clear vision about Britain’s future after Brexit.

References

[1] A. C. Grayling, Democracy and its Crisis (London: Oneworld, 2017). Grayling claims that “Deliberate restriction of the franchise is gerrymandering: the EU referendum was gerrymandered”.

[2] David Cameron, "A new settlement for the United Kingdom in a reformed European Union", 10 November 2015.

[3] Ross McKibbin, "Labour Vanishes", London Review of Books, 20 November 2014.

[4] Richard Crossman, The Diaries of a Cabinet Minister, vol. II (London: Hamish Hamilton and Jonathan Cape, 1976), p. 83.

[5] Crossman, Diaries, p. 335.

[6] Helen Parr, Britain’s Policy Towards the European Community: Harold Wilson and Britain’s World Role, 1964-1967 (London: Routledge, 2006). This is a definitive work on the subject, and should be compulsory reading for everyone taking part in the current debate.

[7] Joseph Weiler, "In defence of the status quo: Europe’s constitutional Sonderweg" in Joseph Weiler and Marlene Wind (eds.) European Constitutionalism Beyond the State (Cambridge: Cambridge Univeristy Press, 2003).

 

About the authors

Christopher Bickerton is Reader in Modern European Politics at the University of Cambridge. Richard Tuck is the Frank G. Thomson professor of government at Harvard University.

This work represents the views of the authors only. It originally appeared as part of the authors' A Brexit Proposal (2017), available in full in our Archive section. It is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.