Part III
Substantive Law

19. Epilogue: Brexit and the Union: Past, Present, Future  

Introduction

Download Chapter 19 – European Union Law – Brexit and the Union: Past, Present, Future

While a distinguished British war hero strongly commended the ‘United States of Europe’ in 1946, when it came to joining the first supranational project – the 1951 European Coal and Steel Community – the view of the (then) British government was that ‘the Durham miners simply won’t wear it’. The reasons for this early rejection of European integration were economic and political in nature. Not only did the British economy produce as much coal as the rest of Europe combined; politically, irritations arose from the French insistence on ‘supranationalism’ – a ‘foreign’ idea that ran counter to the British ideal of parliamentary sovereignty.

When it came, a few years later, to choosing between the British Commonwealth and the 1957 European Economic Community (EEC), the British government again unconditionally favoured the former over the latter.  Once more, economic reasons come to complement geopolitical ones. For not only would the ‘common market’ be incompatible with the imperial preference system that guaranteed cheap agricultural goods; British foreign policy still followed its ‘three circles’ logic in which Europe simply ranked last.

To contain the consequences of its choice against the ‘common market’, the British government nevertheless quickly proposed an organisation to rival the EEC: the 1960 European Free Trade Association (EFTA). The creation of EFTA thereby followed a dual aim. Positively, it created a free trade area that would allow Britain to trade with six other European States, while at the same time keeping its imperial preference system. Negatively, on the other hand, it was hoped that EFTA would dissolve the (supranational) common market in a (intergovernmental) free trade area ‘like a lump of sugar in an English cup of tea’. This second aim however turned out to be wishful thinking, and in an extraordinary act of pragmatic reorientation, membership in the European common market suddenly became a British priority in the early 1960s. Yet Britain’s first application to join the Union, made in 1961, was rejected by France. In a famous 1963 press conference General de Gaulle – then President of France – gave the following reasons for France’s veto:
Great Britain applied for membership of the Common Market. It did so after refusing earlier to participate in the community that was being built, and after then having created a free trade area with six other states, and finally … after having put some pressure on the Six in order to prevent the [putting into effect] of the Common Market from really getting started. Britain thus in its turn requested membership, but on its own conditions. This undoubtedly raises for each of the six States and for England problems of a very great dimension. England is, in effect, insular, maritime, linked through its trade, markets, and food supply to very diverse and often very distant countries. Its activities are essentially industrial and commercial, and only slightly agricultural. It has, throughout its [history], very marked and original customs and traditions. In short, the nature, structure, and economic context of England differ profoundly from those of the other States of the Continent.

This rejection came as a shock. Britain had seriously overestimated its bargaining power; and it was a shock to be repeated when de Gaulle vetoed a second British application in 1967. Only the third membership application would succeed – and only once the French General had left the political stage. It led to the signing of the Accession Treaty on 22 January 1972; and on 1 January 1973, Britain joined the European Union (together with Ireland and Denmark). Ever since, however, Britain has never been the happiest of Member States. Doubts about European integration persisted; and while British governments subsequently embraced the liberal project of the ‘single market’, the idea of an accompanying ‘political union’ continued to be resolutely rejected. This rejection reached its climax in 2016, when a referendum on British EU membership yielded a popular majority for ‘Brexit’ – the British exit from the European Union.

This – separate – chapter aims to explore the past, present and future of that decision. Section 1 offers a historical overview of British membership in the Union. With its commitment to European integration often selective or minimal, the United Kingdom has come to be seen as an ‘awkward partner’ within the European Union. Section 2 explores the process of withdrawal in some detail and here in particular the nature and content of Article 50 TEU – the provision that regulates the Brexit process. Section 3 subsequently analyses the future status of ‘European Union’ law after a repeal of the 1972 European Communities Act. Will all directly applicable European law suddenly disappear? And what, in particular, will happen to all international agreements concluded by the Union? Section 4 finally tries to look even farther into the future and presents the alternative partnership options that are presently discussed. Will the United Kingdom join the EFTA States (again); or will it join a customs union with the EU; or will it favour a ‘Canada plus’ deal? Let us look at all of these questions in turn.

Britain in the European Union: An ‘Awkward Partner’?

  1. ‘Second Thoughts’: The 1975 Membership Referendum
  2. A Market without a State: The Thatcher Vision
  3. From Maastricht to Lisbon: ‘A Europe of Bits and Pieces’
  4. After Lisbon: The Path to Withdrawal from the Union
    1. From Lisbon to the Referendum: The Rise of Euroscepticism
    2. Triggering the Withdrawal Process: The Miller Judgment

Withdrawing from the Union: Article 50 TFEU

  1. Article 50: Constitutional History and Nature
    1. Drafting History during the European Convention
    2. The Nature and Character of Article 50
  2. Negotiating Brexit: Institutional and Procedural Aspects
    1. Institutional Structures and Negotiating Teams
    2. Procedural Stages and Substantive Issues
  3. Conclusion and Ratification I: The United Kingdom
  4. Conclusion and Ratification II: The European Union

Transitioning Out: European Union Law after Brexit

  1. The European Union (Withdrawal) Bill: Functions and Content
  2. In Particular: International Agreements of the European Union

Frameworks for the Future: Alternative Relations with the Union

  1. Joining the European Economic Area: The ‘Norway Model’
  2. Joining a Customs Union: The ‘Turkey Model’
  3. A (Preferential) Free Trade Agreement: The ‘Canada Model’
  4. Of Hard Choices and Red Lines: European and British Perspectives

Footnotes

  1. This had been done by none other than Sir Winston Churchill in 1946, see: www.youtube.com/watch?v=Ln4SRnt4VE0. 
  2. This was the view of the Labour government of the time (see K. Morgan, Labour in Power: 1945–1951 (Oxford University Press, 1985), 420). 
  3. M. Camps, Britain and the European Community, 1955–1963 (Oxford University Press, 1964), 3. 
  4. S. George, An Awkward Partner: Britain in the European Community (Oxford University Press, 1996), 21; Camps, Britain and the European Community (n. 3 above), 4: ‘Co-operation with Europe was desirable; integration with Europe was not.’ 
  5. For the classic analysis here, see G. St. J. Barclay, Commonwealth or Europe (University of Queensland Press, 1970). 
  6. In Churchill’s famous words (quoted ibid., 16): ‘I feel the existence of three great circles … The first circle for us is naturally the British Commonwealth and Empire, with all that that comprises. Then there is also the English-speaking world in which we, Canada and the other British Dominions and the United States play so important a part. And finally there is United Europe.’ 
  7. Unlike a ‘common market’, a ‘free trade area’ allows each Member State to retain its own commercial policy towards third countries. On this distinction, see below. 
  8. I am grateful to Anne Deighton for having pointed me to this wonderful ‘British’ treasure. For the historical context of the phrase, see J. Ellison, Threatening Europe: Britain and the Creation of the European Community, 1955–58 (Palgrave, 2000), 2. 
  9. D. Gowland and A. Turner, Reluctant Europeans: Britain and European Integration 1945–1998 (Longman, 2000), 115: ‘By early 1960, therefore, the options available to British policymakers had narrowed down alarmingly. As a matter of fact, Macmillan and his colleagues faced an extremely simply choice: either to enter the [EU] on the same terms as the original founders – something that had so far been regarded as anathema – or to remain outside, with all the attendant economic and political risks … It must be emphasised that the decision to apply for entry was taken not in a fit of Euro-enthusiasm, but out of a reluctant recognition that it represented the lesser of two evils.’ 
  10. A. G. Harryvan and J. van der Harst, Documents on European Union (Macmillan, 1997), 132 at 134. 
  11. George, Awkward Partner (n. 4 above).