Brexit

No great advantage

Dominic Grieve, MP for Beaconsfield and former attorney general, hosted The In-House Lawyer at 1 Parliament Street to discuss the state of Brexit negotiations, the impact on the profession and provide insight into Theresa May’s administration

Grieve-MP,-Dominic

Brexit |

Alex Speirs: Now less than a year out from the UK’s scheduled withdrawal from the EU, how would you characterise the current state of negotiations?

Grieve-MP,-DominicDominic Grieve: They’re not going well at all. We are not talking the same language. The UK is seeking a bespoke deal recognising our past membership of the EU, our desire to maintain very close links with the EU in a wide range of fields, to have as near frictionless as possible trade in goods and services, and to participate in a vast range of EU peripheral activities. But we want freedom to operate our own immigration policy, not have freedom of movement, the ability to do third-country trade agreements and the ability to deregulate or change the regulatory framework in areas.

It’s what our EU partners characterise as ‘having your cake and eating it’ – and that is, plainly, what we are asking for. Although the prime minister has altered her position in the knowledge that we might not get everything we want, each time she’s made a major speech, each speech has essentially been that same message. And the response has consistently been coming back from the EU Parliament that they won’t give it to us. This is very predictable. The UK Government’s view is that, at some point, the EU will moderate its position, just as the EU thinks that at some point we will change our position. It’s difficult to see how the positions of both parties will be reconciled.

AS: Why has the UK taken this approach to negotiations?

DG: It shows the reasons people voted to leave and why people have accepted the vote to leave are very complex and often incompatible. You’ve got, within UK society, deeply polarised viewpoints, plus the fact that those who voted remain have been utterly unpersuaded that there is any benefit to leaving.

In the middle of that, you have a government led by a prime minister who voted to remain. She may have been lukewarm about the EU, but she voted remain because she could see leaving was going to be extremely risky, complicated and potentially damaging to the UK economy. But in trying to minimise those risks, she is angering the purest leavers for whom the three things of no freedom of movement, free trade deals and no European Court of Justice [ECJ] are absolutely paramount.

That’s why, having kicked the can down the road for two years, we are now coming to a crisis – time is running out. Otherwise, we careen out of the EU with no deal and then it’s not at all clear what would happen.

AS: Is it more likely than not the UK concludes negotiations with no deal?

DG: It would be very surprising to end up with no deal at all. If we are going to end up with no deal on anything, unable to reach an agreement on the terms of withdrawal, let alone a future framework, we are heading for a potentially catastrophic situation. Catastrophic for us, but pretty catastrophic for the EU, because essentially the ability to trade in goods and services would come to an end. I can’t believe that’s in anyone’s interest, which is why a complete no deal is quite improbable.

If we are leaving without any deal for our future relationships and trade terms, there is a very serious crisis brewing – bad for our continental partners in the EU, but very bad for us. I cannot see a government surviving that. You’d be talking about a general election, a referendum or even extending the article 50 process.

AS: The EU Withdrawal Bill has been a point of contention of late – and an issue which you have been at the centre of. Why has there been such controversy around its negotiation?

DG: It’s important to understand that the EU Withdrawal Bill is not about the terms of our withdrawal from the EU. It is about putting in place a safety net to ensure that on the day we leave the EU, or at least the day we come out of transition, we have a system that will enable us to prevent a legal void when EU laws cease to apply. In theory, it ought not to have been particularly controversial. But it had a number of controversial elements.

Firstly, the way in which you carry out retention of EU law. There were issues around the extent to which the Government was trying to use Henry VIII powers – the power to change primary legislation by statutory instrument. The Government’s argument, which was reasonable, was that because of the timeframe, you would not be able to carry this out without the Government having extensive powers to legislate via statutory instrument. So one big area of debate was: how should those powers be controlled? We introduced amendments that dealt with sifting committees and increased parliamentary scrutiny, and debated how those powers should be restricted.

Secondly, although the Government had been talking about retaining EU law until such time where it had decided what to do with it, there were some elements they chose not to retain at all. That raised important issues, because there are areas of law that have developed in the UK over the past 50 years, like equality law, that are entirely subject to the general principles of EU law and a Brexit would leave these areas entirely unprotected.

The final controversial element was less expected. It gave the Government power to use statutory instruments to implement change to our legislative framework, even before Parliament had approved our withdrawal agreement terms. I considered there was a fundamental objection to doing that. This dovetailed into a wider issue about controlling the process of leaving and particularly the issue about Parliament having a meaningful vote on any deal, and what should happen in the event of no deal, which would be, frankly, a major national crisis.

Now, on a meaningful vote on any deal, the Government conceded at an early stage that Parliament would have to have such a vote. They’ve now enshrined it in statute after quite a lot of pushing from the Lords and the Commons.

AS: When negotiating amendments to the EU Withdrawal Bill, what were the concerns you were seeking to address?

DG: I was concerned with the oddity that on the one hand, leaving the EU was supposed to be about recovery of Parliamentary sovereignty, while on the other, we were being asked with the EU Withdrawal Bill to hand vast chunks of sovereignty to the executive. That’s always what happens in a political crisis – the centre takes power to try to control what’s going on. I wanted to make sure this bill was properly scrutinised. Nobody in the House of Commons wanted to prevent this bill going through, because it’s clearly vital. If we don’t have it, we’re still going to leave the EU next year. It’s just that when we leave the EU on 30 March, people would wake up to discover that, effectively, vast areas of law had disappeared. We would be living in a lawless environment.

The process is now in place. I would have preferred the amendment I put forward two weeks ago, but then voted against because it was endangering the Government’s survival, which shows the fragility of the environment in which the Government is operating. I wanted to try to put in place a system to deal with no deal that was more predictable. But, it’s a slightly peripheral issue – if we do end up with no deal, the idea Parliament can be excluded from the process of considering this is fanciful.

AS: There are obvious issues on the statutory law front, which we’ve discussed. Is there any sense of what’s going to happen to common law decisions based on the UK being part of the EU?

DG: We are facing a very major change. One of the issues that was highlighted during the passage of the bill was that there had been concerns from senior members of the judiciary about uncertainty with regards to how they were supposed to interpret retained EU law.

I wanted to put in place a system to deal with no deal that was predictable. But if we end up with no deal, the idea Parliament can be excluded is fanciful.

The judges were troubled and some expressed concerns, saying: ‘It’s all very well, but we will be the ultimate arbiters of the retained EU law, not the ECJ.’ Also: ‘To what extent is Parliament saying that we should be mirroring the ECJ, or should we be doing our own thing?’

But there is an ambivalence around the whole process of leaving the EU, because on one hand, the Government is trying to uncouple us from the jurisdiction of the ECJ. On the other, there are repeated suggestions that once we are out, we are still going to mirror virtually the entire canon of EU regulatory law, to re-facilitate trade with the EU.

AS: Is there any opportunity for Britain in Brexit?

DG: I can’t say there cannot be some silver lining. If you believe the EU is dysfunctional and may be having problems that could undermine or destroy it in the medium term unless it changes, then Brexit offers greater freedom of national action – if we can get it in terms of our exit deal. It’s worth noting that most of the Government’s effort at the moment seems to be devoted to trying to replicate trade deals we are going to lose. But I don’t think any of those trade deals will replace the loss of trade we are going to experience with our EU partners, who are our closest neighbours and with whom we do most of our business. I don’t really see any great advantage.

The other advantage one hears is that it would give the UK the opportunity to break free of the shackles of EU regulation and deregulate, somehow turning ourselves into the Singapore of the north-east Atlantic. But there are two problems with that: one is that, for our European trade, we are going to continue to have to meet EU norms; and the second is that we could deregulate our services more, so that we would have the opportunity to operate in a much leaner, meaner environment. The trouble is that there doesn’t seem to be much evidence this is what the British electorate wants. Although they talk about EU regulation in a critical way, if asked to identify EU regulation they want to get rid of, they are incapable of doing so.

AS: What impact will Brexit have on Europe in the long term?

DG: Europe has a lot of problems. You only have to see what’s going on in countries like Italy, Hungary, or indeed the phenomena in big players like Germany and France, to see the EU is in crisis. That crisis comes from two things.

The first is that the 2008 economic crash had a profound effect on public confidence as to what the EU’s offer was. The EU’s capacity to get out of that has proven to take much longer than they had wished and the euro, because it skews the economies of some of Europe, means they have not yet succeeded in finding a framework for bringing everybody together. It doesn’t appear to work to the advantage of some countries.

Then you’ve got migration, which is becoming a huge issue that politicians have failed to grapple with. Angela Merkel’s decision to open the borders of Germany to over a million refugees – while I can understand from a moral standpoint – was, as a political decision, a very big mistake and a predictable mistake. It’s clear to me the limits of tolerance of the EU public over migration have been reached and it’s understandable if they see this is just the start of the potential movement of hundreds of millions of people.

Those two things together are toxic. They contribute to the rise in populist parties with simplistic solutions, they ruthlessly undermine the EU’s own ideals and what’s happening in the UK is only a precursor to the difficulty they’ve got. But that having been said, it’s much too early to write the EU off. It’s noteworthy that even the countries with populist governments aren’t talking about leaving the EU. On the contrary, they appreciate that the single market and the advantage of what the EU has created are beneficial if they can solve some of the other issues. The question is, will the EU be able to solve those issues? That is the big issue.

From my view as a remainer, the tragedy is this was a great opportunity for the UK to influence the future of the EU, but because we’re leaving we now have no influence. We are therefore going to be an attached spectator to an unfolding political crisis and period of change over which we have no ability to influence but one which we will be affected by.

Alex Speirs

Author(s)