The EU27 is triumphant. That’s the narrative now being spun out of Brussels about how its super-smart negotiators have outfoxed the “Rolls-Royce” brains of the Foreign Office, reducing the UK to a province of the new empire, and its government to a rabble. The joy is palpable. We seized control of the process from the start. We asserted the collective sovereignty of the 27. We spoke with one voice, and dictated the sequencing of the negotiations. “The story of the negotiations is of a process in which the EU moved inexorably forward as Westminster collapsed into political infighting, indecision and instability.” In vain did the UK seek to dislodge the EU from its chosen path, before grudgingly giving in. But to no avail. The Withdrawal Treaty has been signed by the EU 27, and by Prime Minister May. The negotiations are closed.
So runs the official version. It is deeply misleading. It assumes that the EU and the UK negotiators were at odds. It comments on the theatricals, not the substance of the talks. The official version skates over the reality that Whitehall-in-Brussels is a pillar of the EU empire. Whitehall-in-Brussels shares the same objective as its twin, Brussels-in-Whitehall, to thwart the result of the June 23, 2016 referendum for the UK to Leave the EU. And a central player in this charade has been Prime Minister May. The negotiations have been conducted out of 10 Downing Street from the start. From the start, May has played the role of Prime Minister to the United Kingdom, but in effect she has operated as the EU’s Governor of what is considered as the four provinces of a disunited Kingdom. She says her “deal”-in effect a Treaty- is good for the UK, and fulfils the referendum results. By contrast, one of the aides of the European Parliament’s chief Brexit negotiator, Guy Verhofstadt, says in the BBC 4 documentary, Brexit: Behind Closed Doors, that “We got rid of them. We kicked them out. We finally turned them into a colony, and that was our plan from the first moment.”
In what follows, I sketch the story of the negotiations, first of all from the viewpoint of the EU 27. This is relatively strait forward. The more complex part of the story is from May’s perspective. Before sketching the EU’s position, some words are required about the EU itself.
Four characteristics of the EU.
First, the inspiration of the EU is to overcome nationalisms, seen as the prime source of war and destruction in recent European history. Jean Monnet, the prime architect of the EU project, stated that the national states of Europe had to be enveigled into surrendering their sovereign powers to decide their own affairs through subterfuge. His method was to subsume the separate sovereignties of European states by stealth into a new sovereign through a process called engrenage, whereby one regulation or directive begat further rulings, regulations or directives in an upward legislative spiral, yielding a European legal order, separate from international law. The result of this seventy-year long process is the acquis communautaire, a counterpart to the French concept of the acquis sociaux, whereby what has been “acquired” by strenuous effort is irreversible. The acquis makes up thecorpus juris, the vast body of laws which are encapsulated in over 170,000 pages of dense legal text. Leaving this acquis, according to the EU27 had to be through the Article 50 process, outlined in the Lisbon Treaty. As one EU aide phrased it, “It’s not a negotiation. We unwind EU law in your (UK) domestic system.”
Second, the EU is a French creation. Its aim from the start in 1950 was to wrest the leadership of western Europe from the United Kingdom, and to incorporate West Germany, then later a united Germany, into a new political entity, with its set of common institutions, its own legal order, its ever expanding range of competences, and capable of acting as a great power along French lines-no longer la Grande Nation, so much as une Grande Europe, with France at its centre, and on a world scale. Its appeal to the broader European public is that it promises to build a system of permanent peace for Europe, that may set an example to the warring nations of the world. Its appeal in France is that it addresses the central concerns of the nation’s collective memory derived from the three wars of 1870, 1914-18, and 1939-45, hinging on its German Problem. Not least, this French-centred project is the chosen method, which French élites follow, to recuperate international status lost in the defeat of 1940.
Third,a paradox of this project is that while purporting to subsume nationalisms within a common European entity, it is in effect enacted through power politics. This reality is defined in the formula elaborated by the German Constitutional Court with regard to the Maastricht and Lisbon treaties, both of which may be conceived as components of a European constitution. The GCC opines that member states are the “masters of the treaties”. In other words, they are the masters of a project, which does not stand above them, but which is their tool in settling disputes, and in helping them to deal with foreign powers. The project helps, but is not the only mechanism for settling disputes in Europe’s diplomatic arena. And the project is far from monopolizing relations with non-members, notably Russia, China, or the United States. Each one of the member states is a member of the international society of states, with all the rights, privileges and duties pertaining thereto. Each has there own “special relationships” with third powers-Germany for instance with Moscow and Beijing, or France with the United States and India.
Fourth, the central relationship in the EU is between Paris and Berlin. The two set the weather for the EU when they agree, as much as when they disagree. They agreed for instance in the Maastricht Treaty to take an “irrevocable” step towards creating a single currency; Germany asked that the single currency be complemented by political union, arguably achieved with the passage of the Lisbon Treaty. But France asked since 1990 for a European Finance Ministry to counterbalance the European Central Bank. Germany has never agreed, for fear that it will be obliged to fund the debts and deficits of its southern neighbours. This stand-off between France and a more assertive Germany has shaped the politics of Europe over the past decade. France has reluctantly conceded to German demands to set up a fiscal compact whereby national governments are responsible for their own finances; Germany conceded, willingly, to French demands to create a united front in relations with the United Kingdom regarding Brexit.
What this meant for the UK was: 1. That a Frenchman, Michel Barnier, was placed in charge of the EU27 position, on a mandate from the European Council; 2. That Barnier was not negotiating with “London “; he was negotiating in the interest of the French project for Europe, the central component of which is Paris’intent to bind Germany into the EU. A paramount French interest, so paramount that unspoken, is that Brexit set no precedent for Gerxit.
Once these four components of the EU’s position are understood-securing the collective sovereignty of the EU27 in the form of the EU’s corpus juris; the EU as primarily a French project; power politics as a central component of the EU project; the Franco-German tandem-the EU27 position on Brexit is easily understood. The corpus jurisis the EU’s chosen power tool; Barnier executes French policy, but sails under a Commission flag, with a Council mandate; the objective is to preserve the acquis,to discourage any other member state from flirting with the idea of leaving, and for the EU 27 to “speak with one voice”; all possible costs are to be burdened on to the UK, which alone-the EU position states-is responsible for the decision to leave; the EU-UK “divorce” has to be settled first, before the future relationship is discussed.
The main elements of the divorce include the settlement of citizens’ rights, notably EU citizens residing in the UK; the divorce bill, the amount to be decided by the EU27; and the UK-Irish border, which becomes the UK’s only land border with the EU27. Furthermore, the EU27 insisted that no discussions were to be held until the Article 50 process had been invoked; its behaviour clearly indicates that the only movement possible is for the UK to concede to EU exigencies; the UK’s public position is dubbed “unrealistic” to the extent that it diverges from the EU’s; the whole “negotiation” is to be bathed in legalese, and any discussion of the broader relationship is to be located sometime in the future, once the UK has satisfied the EU leadership on the terms of divorce. These are spelt out in the 585 pages of the Withdrawal Treaty.
The timeline on the EU27’s Withdrawal Treaty.
On June 24, 2016-the day after the referendum in the UK- European Council President Donald Tusk- circulated a short statement to the EU27, urging them to “speak with one voice”, that the UK leave through the Article 50 process, and that “the arrangements for withdrawal” be settled prior to discussions on the future relationship.
Later that morning, a joint statement by the Presidents of the Council, Commission, Parliament and the head of the Council of Ministers, the Dutch Prime Minister Mark Rutte, ruled out any talks with the UK before it triggered the Article 50 process. The leaders urged London to trigger Article 50 “as soon as possible”, and reiterated that the future relationship would only be determined after the UK had left.
On June 28, 2016 the EU heads of government or state endorsed the opening positions of the Council and Commission, while Chancellor Merkel insisted on adding a reference to the indivisibility of the four freedoms.- the free movement of goods, services, capital and people. The UK could only remain in the Single Market if it accepted EU migrants. There was to be no “cherry picking”.
On July 27, 2016 Michel Barnier was announced as the Commission’s chief negotiator. The choice was a result of a turf war between the institutions. Barnier enjoyed the support of Paris and Berlin, had been a former French agricultural minister and twice a European Commissioner. The announcement made clear that the EU27 would negotiate via the Commission’s man, Barnier, only between Brussels and London, and not between London and the other capitals.
On March 29, 2017, the European Parliament published its negotiation demands:the withdrawal agreement and any possible transitional arrangement should enter into force “well before the elections to the European Parliament of May 2019”. The negotiations should focus on citizens rights, the divorce bill, the EU’s external (Irish) border, and the designation of the Court of Justice of the European Union as the competent authority for the interpretation and enforcement of the withdrawal agreement.
On 29 April 2017, the EU heads of state unanimously accepted the negotiating guidelines prepared by Tusk. The guidelines take the view that Article 50 permits a two-phased negotiation, whereby the UK first needs to agree to a financial commitment and to lifelong benefits for EU citizens in Britain, before the EU27 will entertain negotiations on a future relationship.In the first phase of the withdrawal negotiation, the UK had to pay a “divorce” bill, amounting to Euros 100 billion. The document stated that preserving the Single Market would be a priority, and reiterated the commitment for the EU27 to adopt unified positions.
On May 2, 2017, Emmanuel Macron won the second round of the Presidential elections, with 66% of a reduced vote. In the subsequent parliamentary elections in early June, Macron’s movement, En Marche, won a substantial majority. Macron is a convinced European federalist, and hoped to put new life into relations between Paris and Berlin. His election opened the way for the EU27 to adopt a determined stance with regard to the EU’s rebellious province, the UK.
The change in tone was immediate. May had announced the triggering of Article 50 in March, and since October 2016, both May and Juncker had agreed that their cabinet heads should meetevery six weeks, informally to prepare the negotiation process: Martin Selmayr, the German at Juncker’s side, and Oliver Robbins for May. On May 2, the German newspaper Frankfurter Allgemeine Sonntagszeitung, stated that Juncker claimed that Theresa May was “living in another galaxy” when suggesting that British and EU migrant rights could be rapidly negotiated and agreed in the course of June 2017. Next day, Merkel chipped in with a remark that there were “illusions” on the British side.
On May 22, the European Council authorised the Commission to open Article 50 discussions with the UK. The statement reiterated previous positions on citizens rights, the divorce bill, and the Irish question, and added that the post-Brexit relationship between the EU27 and the UK, was to begin “as soon as the European Council decides that sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal”.
Negotiations proceeded on citizens rights, the financial settlement and in particular about Ireland. On April 24, 2016, Ireland’s Taoiseach, Enda Kenny, had stated that “Ireland will, of course, remain a member of the European Union.” Dublin had begun lobbying other EU countries in the months before the referendum to ensure Ireland was protected in the event of decision by the U.K. to leave. Initially, Dublin had engaged in bilateral talks with London., prompting concerns in Brussels that the two would reach an agreement. So in October 2016, Barnier, went to Dublin and read the riot act: negotiations with London on the Irish border was a Brussels preserve.
By February, 2017 — before Britain had even triggered Article 50 — Brussels had laid the basis for its future policy. “In a confidential Brexit note, titled “Brexit and the Border between Ireland the U.K.,” the Commission proposed a soft land border for goods — and no border controls for agriculture and food. In effect, the island of Ireland would be treated as unified when it came to food and farming. Northern Ireland would be subject to EU law even after it had left. This meant there would have to be border controls within the U.K. — between Britain and Northern Ireland.”
The good news for Dublin was that thereby Brussels was backing Ireland’s commitment to a united Ireland, and making a proposal that effectively amputated a British territory. The burden of adjustment would fall on the UK, not Ireland and the EU.
In November 2017, the Commission unveiled its proposal: the only way to avoid a hard border in Ireland was for the U.K. to ensure that there would be “no regulatory divergence” between Northern Ireland and the rules of the single market and customs union. This meant that May would have to either incorporate the whole of the UK within the EU’s corpus jurisor Northern Ireland would be subject to different laws to the rest of the country.
Hans-Olaf Henkel, a German MEP in the Conservative and Reform faction in the European Parliament, as been highly critical of the EU27 approach. He did not mince his words for the British government either. As a former head of the BDI-the German CBI- he calls for a New Deal for Britain. But from the start, the EU’s position was not to cut the UK a special deal.
The UK: from member state to recalcitrant EU province.
Before analysing the emergence of Britain’s negotiating position, some remarks about the UK’’s relation to Europe.
First, the referendum vote of June 23 2016 is not the first Brexit. The first Brexit was launched in 1529 by Henry VIII who sought a divorce from his wife Catherine of Aragon, who had failed to deliver him a male heir. Initially, Henry appealed to the Pope in Rome, and conducted negotiations through Cardinal Wolsey in full respect of Papal authority. But permission was not forthcoming, so Henry took matters into his own hands. Through a series of Acts of Parliament, he established himself as supreme authority, nullified the Pope’s jurisdiction in his realms, confiscated Church properties, established the Church of England, and laid the foundations of what later came to be seen as the essence of English, then of British sovereignty, defined as the Crown in Parliament. Laws were to be made in the United Kingdom, through its own elected parliament, enforceable by the courts, which were the repositories of people’s inherited liberties, as first adumbrated in the Petition of Rights of 1628, then developed in the Glorious Revolution of 1688, and the unions with Scotland in 1707 and with Ireland in 1800.
These, and other landmark events in the development of the United Kingdom’s Constitution, laid the foundation for the constitutional monarchy, judicial, independence, the liberties of citizens, protection of property rights, freedom of the press and habeas corpus. As John Locke, the bard of the Glorious Revolution, wrote in his Second Treatise of Government, “the legislature cannot transfer the making of laws to any other hands. For it being a delegated power from the people, they who have it cannot pass it on to others”.
Second, that is precisely what the Conservative government did in 1972. As Sir Con O’Neill wrote in his account of the negotiations to enter the then EEC, the UK was entering for prestige, not for any economic benefit. “The whole of our long negotiations were peripheral, accidental and secondary . . . What mattered was to get into the Community, and thereby restore our position at the centre of European affairs which, since 1958, we had lost.” That meant unconditional surrender: the unilateral opening of UK markets, the overhaul of the UK’s agricultural sector, the dismantlement of the UK’s fishing industry, the commitment to hand over future income streams to EEC coffers paid for from British taxpayers, and not the least, all in the name of a supranational Europe. In the European Communities Act, Prime Minister Heath, through the pen of Geoffrey Howe QC, established in Section 2.1. that EU law trumped UK law, thereby ensuring that the Crown in parliament was no longer sovereign, that ever wider swathes of law fell outside parliament’s bounds, that the courts interpreted the rulings of the European Court of Justice, and that the executive’s powers to enact secondary legislation was enhanced.
The Act of 1972 tilted the balance of power further away from Westminster, the seat of the two houses of parliament, towards the mandarins of Whitehall. The mandarins joined in making legislation for the EEC/EU in Brussels, relegating Westminster to a backwater. The courts became more independent, enforcing EEC/EU jurisprudence at the expense of parliament. Judges became more assertive, the executive more arrogant, parliament less prestigious, and power more dispersed and less accountable. The lack of political accountability was a central feature of debates during the Brexit referendum of February to June 2016. Vernon Bogdanor does not exaggerate when he writes thet the 1972 Act constituted a seismic change in the United Kingdom’s constitutional arrangements.
Third, the élites of the United Kingdom-the senior civil service, those politicians who reached the top of the greasy pole, big business, the media, the universities-bought into the European project. As I have written on this blog, official UK became more supranational than the Pope: the UK’s manifest destiny was to be subsumed into a European federation. Michael Heseltine, a Big Beast of the Tory jungle and former deputy Prime Minsiter, described “integration”,as an “irreversible and unstoppable a process”. The mantra worked wonders in the 1980s, when the EEC’s popularity soared on the back of a return to economic optimism, the opening up of the internal market, and the backing of a pro-EEC Tory government. But the combined forces of the British élites-all major parties, business, the City, the media and academe- lost the political battle on joining the monetary union, and had to settle for a semi-detached status as signatories to the Maastricht (1992), and later the Lisbon(2007), Treaties, which laid the legal and institutional foundations for a European Union- an entity exercising collective sovereignty on behalf of the 28 member states.
As Ken Clarke writes in his autobiography, Kind of Blue,Edward Heath never undertook the Himalayan task of trying to win over the electorate to his vision of the UK as a province, or rather four provinces, in a federal Europe. Successive UK leaders, all pro-EU, sought to bridge the gap between their preferred pro-EU policy and the public’s questioning attitudes with Eurosceptic rhetoric followed by de facto acquiescence in the march of EU integration. A good example of this was Gordon Brown signing the Lisbon Treaty with his back turned to the cameras, to show his disapproval of his signing. His signing converted the Lisbon Treaty into UK law.
Fourth, the UK’s élites subscribed to the view that nationalism caused war, and that the nation states of Europe should be subsumed into a wider entity. That meant pooling sovereignty such that whole swathes of sovereign statehood be hollowed out in favour of joint management of resources via EU institutions, laws, quangos and an ever wider reach of policy competences. The result was a devotion of energies to building Europe, while dismantling Britain.
New Labour went at it with a vengeance: Devolution to Scotland, Wales and Northern Ireland; proportional representation applied in the devolved bodies, including London; the Human Rights Act which brought all public bodies under the authority of the European Convention of Human Rights; the House of Lords Act, defenestrating most hereditary peers, and stuffing the place with Tony’s cronies; the Constitutional Reform Act, creating a Supreme Court. The process continued apace under the Cameron-Clegg government of 2010-2015: in 2011, the Fixed Term Act and the Act to hold a referendum if the EU were to request further powers; and English votes for English laws of 2016.
But voters were not deceived: in 2014, they voted heavily for UKIP, for a restoration of sovereignty- the undiluted sovereignty of the Crown in Parliament as an inalienable right. In the referendum of June 2016, Wales and northern England voted heavily for Leave; working class voters flocked to the Brexit party in 2019. But Scotland, Northern Ireland and London voted to Remain. In the words of Bogdanor, “What Brexit has revealed is that the United Kingdom, a multinational state comprising four territories, has not one constitution but four constitutions..”.Another way of putting it would be to say that the United kingdom in 1972 had one Constitution; after 43 years if the EU, it had four-five, if you count in the Lisbon Treaty;
May takes the keys of 10 Downing Street.
In July 2016, the Conservative Party chose May to replace Cameron as Prime Minister. She thereby inherited 43 years of constitutional tinkering by the UK’s EU élites- tinkering with the idea inherited from nearly 5 centuries of the Crown in parliament as sovereign, subject to no foreign court; a Whitehall whose executive and legislative powers have been greatly expanded by EU membership; an élite more supranational than the Pope reigning over a broadly Eurosceptic population, notably in England, Wales and Cornwall; and four decades of conscious efforts to dismantle the unity of the United Kingdom. In effect, the 1972 European Communities Act installed the evolving EU constitution as the UK’s own, overriding its own inherited arrangements in a way that was not the case for continental countries with written constitutions of their own.  In the words of the European Union Select Committee of the House of Lords, “The European Union was “in effect, part of the glue holding the United Kingdom together since 1997”(the year when New Labour launched its “modernization” campaign).Withdrawing from the EU, from this perspective, was inevitably placing the Kingdom’s unity at risk. Yet that was the mandate May received from the vote of June 23, 2016.
The situation she faced was challenging to say the least. The knights and dames of Whitehall, almost to a man or woman, were fervent Remainers; they were part, and an important part, of “Brussels”; as Whitehall-in-Brussels, they had ample scope to make coalitions in pursuit of their policy preferences; as Brussels-in -Whitehall they enjoyed widespread discretion to implement legislation, which they themselves had negotiated and co-legislated for in the Brussels institutions. Once done with their active careers, many retired to the “reformed” House of Lords; They shared the view of Robin Niblett, the director of Chatham House-the Lib-Dem leaning foreign policy think tank in London- that “sovereignty” was a myth. “Many in Britain, writes Niblett, believe that the process of EU-decision making has undermined parliamentary democracy and that leaving the EU is the only way for the British people to regain control of their sovereignty”.“This ignores the fact”, he goes on, “ that successive British governments have chosen to pool aspects of the country’s sovereign power in the EU in order to achieve national objectives that they could not have achieved on their own..”. In other words, what the government does is good for you. The public proved less convinced of the proposition.
Theresa May is the daughter of an Anglican vicar, and a regular church goer. Her friends report that she has always been ambitious. She joined the Conservative party during her studies at Oxford University and is a tribal loyalist to the party. She is a “One Nation” Tory in the Heath tradition. Before becoming a counselor, she worked in financial services when being pro-EU came with the job. Elected to the Maidenhead constituency in 1997, William Hague, the then party leader, brought her into the shadow Cabinet, in which she held several shadow positions. She identified with socially-liberal causes, but cautiously: she voted against gay adoption rights in 2002, but admitted in 2010 on Question Time, that she had changed her mind.
Cameron appointed her Home Secretary, a post that she held for a record six years. Deputy-Prime Minister Nick Clegg has recalled that she rarely expressed her own opinion, relying on her officials. Another characteristic was her preference for formal speeches, such as at the Tory party conference of 2015, when she talked tough on immigration. But official statistics that year showed a net immigration record of 336,000. During the referendum campaign of early 2016, she kept mum, until the last moment when she cautiously came out in favour of Remain on economic and security grounds. Ken Clarke, the strongly pro-EU veteran Tory politician, commended her talk as “thoughtful”.
This ambitious, cautious, secretive, conventionally pro-EU, and rather provincial Tory lady moved into the top job, as Prime Minister and leader of a divided party. The divisions were broadly three: hard core Remainers, who considered the referendum advisory; the soft leavers, who, like Cameron, considered the referendum mandatory, but hoped that the UK would stay close to the single market; and the arch-Leavers, who wanted the UK to become again a self-governing nation.
Tom McTague, How the UK lost the Brexit battle: The course of Brexit was set in the hours and days after the 2016 referendum., Politico, Updated 4/2/19.
Peter Foster, (29 April 2017). “EU Brexit guidelines: What’s in the document, and what it really means”. The Daily Telegraph..
In Tom McTague, How the UK lost the Brexit battle: The course of Brexit was set in the hours and days after the 2016 referendum., Politico, Updated 4/2/19.
Ed. Sir David Hannay, Britain’s Entry into the European Community: Report on the Negotiations of 1970-1972, Routledge, Whitehall Histories, 2000.
Beyond Brexit: Towards a British Constitution,I.B. Tauris, 2019.
See my review of his autobiography: https://storybookreview.wordpress.com/2017/01/17/ken-clarkes-memoirs-and-the-june-23-brexit-referendum-part-i/
See for instance, jean-Philippe Derosier, Les Limiotes Constituionells à l’Intégration Européenne : Etude Comparée : Allemagne, France, Italie, Editions Lextenso, 2015.
House of Lords, 9, 2017-18, Brexit : Devolution, p. 12. Quoted in Bogdanor, p.214.
See my review of Niblett’s pamphlet, https://storybookreview.wordpress.com/2016/06/21/a-supranational-europe-or-a-european-alliance-of-constitutional-states-a-review-of-robin-nibletts-britain-the-eu-and-the-sovereignty-myth-chatham-house-the-royal-institute-of-international-affa/