Editorial: The Case for a Kinder, Gentler Brexit

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Of course, we know better than to be shooting at each other; but the post-23 June  relationship between the United Kingdom and the European Union is woefully bellicose, and increasingly so. In tone and mood, diplomatic niceties are barely maintained and in content positions seem to be hardening. I am mostly concerned with attitudes and positions of and within the Union and its 27 remaining Member States. Handling Brexit cannot be dissociated from the handling of the broader challenges facing the Union. I will readily accept that the UK leadership bears considerable responsibility for the bellicosity and the escalating lawfare. But the inequality of arms so strikingly favours the Union that its attitude and policies can afford a certain magnanimous disregard of ongoing British provocations.

It is easy to understand European Union frustration with the UK. I want to list three – the first being an understandable human reaction. It is clear that when Cameron called for a renegotiation followed by a referendum he had no clue what it was he wanted and needed to renegotiate. The Union waited patiently for months to receive his list – the insignificance of which, when it did come, was breathtaking. For ‘this’ one was willing to risk breaking up the Union and perhaps the UK? I recall Jean-Claude Juncker’s State of the Union of 2015 in which going the extra mile in preventing a Brexit was one of his top priorities. Any fair-minded observer would agree that the Union delivered on this commitment. Some of us even thought that the eventual compromise on free movement went beyond the boundaries of extant EU law. The actual Brexit vote was thus greeted with understandable disappointment, to which a measure of bitterness and even anger were easy to detect in the myriad statements that followed. And then it also became abundantly clear, breathtakingly clear, that the UK went into the referendum without any strategic – political and legal – plan in the event of, well, Brexit. One did not know what the Brits wanted ahead of the referendum and one still is not clear what they want in its wake. It has been ongoing and at times incoherent improvisation – adding further to the already existing frustration. We tend to reify governments and administrations just as we reify courts. But when all is said and done, there are always humans with emotions and ambitions and desires and the usual frailties of the human condition.

Still, setting aside this kind of emotional state as the basis for, or even influencing, a Brexit strategy, it is well overdue. If the interest of the kids is really in one’s mind, it behooves any divorcing couple to get as quickly as possible beyond the anger stage. In approaching Brexit the single consideration should be the overall interest of the Union and the underlying values of the European construct.

I take it as axiomatic that it is in the interest of the Union – economic, strategic (not least security) and even social – to have as amicable, open and cooperative a relationship with a post-Brexit UK. One cannot very justly express alarm and disapproval at the protectionist winds blowing from the White House and then not accept that, even if outside the Union, it is in our interest to keep as open a marketplace with such an important contiguous economy as the UK. Nor can one fail to realize that with the end of the Pax Americana, how damaging it would be for Europe, when finally beginning to take its security responsibilities seriously, not to be able to count on a robust participation of the UK. And beyond the money power matrices, the UK has to remain a firm ally in the defence of liberal democracy under attack. Not to mince words, a hostile Union will only further push the UK into an uneasy embrace with Trump.

What, then, from the Union’s side – at the policy rather than the emotional level – seems to explain the bellicosity? There are two interconnected arguments which are repeated again and again in explaining and justifying the rhetoric of a ‘hard’ Brexit or ‘Divorce before any negotiations’ et cetera et cetera ad nauseam and ad tedium.

The first is that one cannot compromise the conceptual and practical coherence of the Single Market, of which free movement of workers is an indispensable and non-negotiable principle. (I consider as sad collateral damage the fact that the Brexit debate has returned the principle of free movement to its economic foundation – workers, factors of production in a common market – and away from its new citizenship grounding). And since the UK insists that it can no longer accept free movement, it cannot both have its cake and eat it. You cannot be in the Single Market without accepting its cardinal principles. There is an important additional nuance to this argument, namely that by taking a tough line with the UK one is squelching any heretics who would like to see the dilution of free movement within the Union.

The second – interconnected – reason for the tough rhetoric and the endless promises of a ’hard’ Brexit is the ‘discourage the others’ argument. If the UK gets too cushy a deal – i.e. is not made to pay and to be seen to be paying a heavy price for Brexit – it might tempt other Member States to seek the same, thereby bringing about a weakening or even disintegration of the Union. The notion of some form of Associate Membership is thus rejected categorically.

I think the first argument is based on a misunderstanding and the second argument raises a profound issue that goes well beyond any Brexit strategy. It touches on what is sometimes thought of as the ‘soul of the Union’ – its very ontology – a clarification of which should at least provoke second thoughts as to the wisdom of the extant approach to Brexit.

It is clear that if the UK leaves the Union and rejects free movement it cannot be a full participant in the Single Market. But, it is worth making, again and again, the obvious distinction between being part of the Single Market and having access to the Single Market.

For decades, even before it was called the Single Market, it has been European policy that granting access to the Single Market to partners all over the world was an important objective, beneficial both to the Union and to such trading partners. The recent conclusion of CETA (Canada-EU Comprehensive Economic and Trade Agreement) is just the last, if very visible, manifestation of such a policy. The Union has countless agreements of this nature – the common denominator of which is the granting of access to the Single Market not only without requiring free movement of workers, but excluding such. In the case of developing countries the access has been at times on a non-reciprocal preferential basis, though with many partners (again using CETA as an example) it is on a fully reciprocal basis. It is true that for the most part the agreements relate to goods rather than services but the access is extensive nonetheless.

Why should the Union not announce, unilaterally, and as soon as possible, that it would be its desire that the UK have at a minimum an agreement granting it access to the Single Market on terms no less favourable than any of its existing reciprocal agreements with third parties? I can see several distinct advantages of such a declaration. First it would change the existing damaging, bellicose atmosphere and mood, which are not auspicious for an amicable divorce. Second, it would not compromise any European interest from a commercial perspective. And third, it would allow that aspect of the negotiations to be handed over to the technocrats – the devil is in the details! – while allowing the more sensitive issues such as financial services, passporting and the like to be dealt with at the political level.

In the same vein, just about all Member States of the Union have bilateral investment treaties with third parties, which typically give extensive access to company directors, etc. Is it thinkable that the UK should not have similar privileges? Why should the same ‘most favoured’ principle not be extended as regards these privileges accorded to third parties?

Negotiating from a position of power, such gestures of good will by the Union would not compromise its interests; rather they would facilitate the negotiations by setting at least minimal targets to be achieved in the negotiations and send an important signal that the period of anger is over and functional pragmatism is back.

What then of the ‘discourage the others’ argument? Here my views are decidedly iconoclastic but, I want to believe, at least merit a hearing.

The actual departure of the UK was not in my view the deepest harm inflicted by Brexit (thought of as a holistic set of events). The catastrophic damage to the Union was to grievously arrest the slow transformation of the European Construct from a community of convenience (concrete achievements leading to de facto solidarity) to a community of fate. By community of fate (and thankfully Isaiah Berlin re-Koshered Herders’ concept so abused by National Socialism)  I mean the notion that whilst one can and should have deep divisions and conflicts within the Union as regards its policies, scope of action, methods of governance and the like, such divisions and conflicts have to be resolved within the framework of the Union, its Member States and their peoples being attached to each other indissolubly. The Exit option, a nod towards the residual sovereignty of the Member States (an indispensable nod, given that the very notion of high integration among sovereign states is the double helix of the European construct that differentiates it from Federal States) was always to remain the arm you never use. Brexit discourse, spilling over from the UK debate to the whole of Europe, regressed the Union back to a contingent, ongoing project, the viability of which may be challenged at any moment, depending on a material balance of costs and benefits. Unwittingly, in an almost panicky knee-jerk reaction, European discourse became one of ‘we have to come up with projects that will prove to the peoples of Europe that it is in their interest to maintain the Union’. To remain. Even if successful in finding such projects, this is a self-defeating approach, because of its contingent, cost-benefit logic, on which the future of the Union is now to rest. As we saw in the British debate on Brexit and we see in current Euro-speak, this logic inevitably leads to the politics of fear. As the Brexit debate in Britain progressed it became increasingly one of who could scare their adversary more effectively. The ‘discourage the others’ argument in the current post-Brexit approach belongs to the same genus. Does one really want the future of European integration to rest on fear-driven support, scaring our peoples by setting up the UK as a reminder of the bad fate the awaits the heretics?

I cannot but think of millennial Christian doctrine – now abandoned – which held that the Jews should be kept as a miserable entity as a reminder of the fate of those who reject the Saviour. It was a betrayal of Christian ideals.

So, think now the unthinkable – an approach which would afford the UK as comfortable a status as possible, even a form of Associate Membership. It would still be a second class membership; whatever access the UK would have to, say, the Single Market, would be to a marketplace the rules of which would be determined by others. This is a self-inflicted damage that the UK will have to live with.

Brexit is a watershed. So, I would argue, instead of trying to stick the finger in the dyke let us live the watershed. If a UK status is appealing to this or that Member State, let it be. Those states would not in any event be helpful in a Union which needs some brave and decisive fixes to its structure and processes, not least the structure and processes of governance. For those who remain, most if not all, it will be a moment of willed re-commitment rather than scared, coerced, resentful and contingent inertia.



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Donna Maria Catliota says

February 6, 2017

I thought this was a terrific, thought provoking article. Thank you!

Jakob Cornides says

February 6, 2017

It seems to me that this comment misses a point or two.
First, I am wondering whence comes the assessment that the atmosphere is "bellicose" on the EU side. True, the reactions to the Brexit vote by certain representatives of the Commission or the European Parliament (I do not need to mention any names…) regrettably have been rather "if you want to go, at least go quickly" rather than "let us find a solution how you can stay" – and one has good reason to find the underlying attitude childish rather than statesmanlike. But from there to "bellicose" is a far step.
From inside the European Commission my personal observation is that the general attitude towards the UK is not bellicose at all. Instead, there is a certain bemusement: it is not at all clear what the UK really wants, and how that can be achieved without calling into question the basic principles of the EU. Maybe the common market could function also without the free movement of persons (thus limiting free movement to goods, services and capital) – but the fact is that all other Member States find the free movement of persons so important that they cannot imagine the EU without it. And perhaps, if Brits are so worried about the presence of people of foreign origin on British soil, they might ask the further question whether it is EU nationals they are worried about, or whether it is immigrants from third countries. I tend to believe that the many Poles, Lithuanians, etc. who have migrated to the UK actually are contributing to the country's wealth, rather than reducing it.
Concerning access to the common market, there can be no doubt that if the UK wanted to be part of the EEA (like Norway, Iceland, or Liechtenstein), the EU would be easily convinced to grant it such a status. But that is not what the UK appears to want.
If, by contrast, the UK wants a free trade agreement similar to CETA, there is no doubt that such an agreement could be concluded – and there is no "bellicose" attitude on the EU side that would set any obstacles to negotiating it. However, negotiating an FTA is a lengthy process (for CETA it took seven years, if I remember well), and an FTA is simply not the same thing as the full access to the common market that the UK enjoys as an EU Member State. Still, there is no clarity whether this is what the UK wants.
The fundamental problem is not any hostility of the EU elites towards Britain, but rather that Britain seems to want something that is not on offer: all the advantages of full EU membership without any of the inconveniences. That is simply irrealistic.
My personal view is that Brexit could, and should, still be avoided: it damages the interests both of the UK and the remaining of the EU. But while I believe that many Brits are beginning to grasp just how damaging Brexit will be, there appears to be a lack of statesmanship and fantasy on both sides to steer the situation back to normal. In the end there is a risk that Brexit will take place although neither side really wants it.
What I find particularly worrying is that the British side seems to believe that the decision to leave the EU can be unilaterally revoked even after Article 50 has been triggered – for example if the British side finds that the conditions of the exit deal that are offered to it are not fully satisfying. I do not believe that this is the case: were it so, we'd be dealing with Article-50-negotiations all the time, because every Member State would be trying to brandish the hypothesis of leaving the EU as a strategy to improve the conditions of its membership. If I were in the boots of Theresa May, the first thing I'd do before triggering Article 50 would be to request a legal opinion from the CJEU on whether the decision to leave can be revoked or not. Triggering Article 50 without knowing the answer to this particular question means playing a game without knowing the rules.

Professor Peter Muchlinski says

February 6, 2017

I would like to commend Professor Weiler for his excellent contribution. As a British citizen, I welcome such a constructive attitude. Brexit is a fact we cannot avoid or wish away. It is, for better or worse, an expression of popular will, one which finds echoes in other EU states, albeit in less decisive terms.

At the heart of this issue is the apparent commitment to certain EU rules that are seen as immutable. However, to use Keynes's famous cliche "when the facts change, I change my mind". We cannot assume that free movement is immutable. The British people (and others in the EU) are justly worried about mass migration and the threat it poses for labour security. The British Government has not helped by pursuing a strongly neoliberal policy of allowing in migrant labour from the EU (mainly the poorer Eastern Members) so as to create a reserve army of cheap workers (See Larry Elliott's excellent critique of this in his book Fantasy Island). British workers have suffered the ignominies of deindustrialisation and neoliberal economic policies for over 30 years, a truly British enterprise. The motives for Brexit need to be seen accurately. They represent a challenge to the neoliberal ascendancy that has informed UK and EU policy for a very long time. Perhaps Westminster is the better target for protest but the politics of the day has not worked out like that. Brussels has become the surrogate and not without some justification.

Those who voted to Remain in the UK were indeed motivated by a vision of a united Europe, free of borders and conflict, in which previously antagonistic communities could co-exist in peace and friendship. I doubt if Brexiters want something else.

However, those discontent with their lives as part of the EU narrowly prevailed. It is no use arguing that they were misled, or were just not clear as to what Europe means. They were reacting to an opportunity to state their discontent with their general situation. the EU happened to be the scapegoat, one handed to the people by David Cameron, but one that would not have been asked for by the people in general. The EU was down the lists of most people's pressing issues, but, given the Referendum, it was an opportunity to "stick it to the Government" like no other in ages! That ought to offer an indication as to what to do about the Brexit negotiations.

In these circumstances it is smart politics not to take advantage of superior bargaining power over the UK for the reasons Prof Weiler has offered. On that path we are led to increasing British defensiveness towards the EU, the loss of existing support for the EU in the UK, and a reorientation toward friends overseas, with unforeseeable long-term consequences for the EU itself. If the UK is treated harshly, just to make a point, I fear that it will encourage others to follow the UK out, not the reverse.

It would add to the evidence that the EU is becoming a "dictatorial" organisation dedicated to the furtherance of neoliberalism, and with scant regard for what the peoples of Europe really feel or need. It would add to the already deplorable treatment of Greece in the lexicon of EU technocratic excess. How that would play out in Warsaw or Budapest, let alone in the rest of the EU, I'm not sure. Do not assume that the New Members joined in order to act as the willing supplicants of Brussels. They had had enough of that with Moscow.

Finally let us not overstate the threat that President Trump offers to Europe. He is full of buster and bad will. But, like the UK post-Brexit, the US cannot be dismissed as the slave of the short-run political winner. Times change and circumstances dictate the need for long term strategic thinking.

This ought to include the fundamental reform of the EU and its institutions allowing for a New Europe to emerge, which can be home to all of us. The long-term aim ought to be to allow the UK to rejoin in some capacity. Associate Membership will be an idea whose time will come. Remember that most who voted to leave will be dead within the next decade and the young may be open to return. Alienating them through the harsh treatment of the UK is not good politics.

Thus we should hope that the EU will remain open to a good deal with the UK and to cautious engagement with the Trump administration. If it does not it will have betrayed the millions in the UK who did not vote for Brexit, and the majority of Americans who did not vote for President Trump. It will also further the cause of those who will ill on the EU.

Finally, I would urge contributors not to use the word "Brits". It can be misconstrued as a term of not very friendly exasperation. Please refer to us as the "British" or the "UK". It would be an important verbal indication of friendship.

Jakob Cornides says

February 6, 2017

"The long-term aim ought to be to allow the UK to rejoin in some capacity."

But no one is obliging the UK to leave! Everybody would be glad if it didn't.

From my side of the Channel I am wondering, why is there so much deference to a referendum that from the outset was not considered legally binding? Keynes's quotation is fine, but may I suggest that perhaps many of those who have voted for Brexit have already changed their minds once it became clear that the Utopia of "having all the advantages, without the inconveniences, of EU membership", which Cameron apparently have promised them, is not going to materialize?

The UK still hasn't triggered Article 50, and isn't obliged to. There still is time for second thoughts. But is it wise to manoeuvre oneself into an impossible situation and then wait for others to come to the rescue?

Besides that, I am of course happy to give a big verbal hug to the entire UK...

Marty Lederman says

February 6, 2017

Wonderful post, Joseph. I apologize in advance if this is a bit too insouciant -- certainly not my intent with respect to a topic of such obvious gravity -- but I thought I might share that as I was reading the post and the comments, I couldn't get this out of my head:


Matthias Goldmann says

February 7, 2017

Warm thanks to Professor Weiler for yet another stunning piece. The refutation of the "discourage the others" argument really goes to the heart of the matter. While the lack of strategy on the part of the British government is apparent, there is an equal void on the other side of the English Channel if it comes to visions about the Union's finalité post Brexit. A polis built on fear and punishment is blatantly incompetent to represent the core values of the Union, namely democracy, the rule of law and human rights. They are essentially about freedom and respect, thus the exact opposite of fear and punishment. We saw the fear and punishment doctrine fail in the Eurozone crisis, driving a wedge between peoples when the Union needed their solidarity like never before. We might see it fail again on Brexit. History seems to repeat itself.

I suspect that at the heart of the fear and punishment doctrine there is an economistic worldview characterized by two features which are inimical to any notion of solidarity (a term which I prefer over the highly culturalistic idea of a "community of fate"). This worldview has two features: first, it defines the state as a rational, self-interested actor. That idea is inherently inimical to the notion of union citizenship. Second, it does not believe in discourse or moral sentiment as reasons motivating states (or people). Hence the concern with moral hazard.

It is clear which particular ideology may claim authorship for this economistic worldview. It has taken hold of the Union decades ago in the wake of the crises of the 1970s, creeping by and by into its DNA so that now, in year 1 after Brexit, it is fully in charge of the Union's reaction. Any solution should start here.

Nick Notan says

February 8, 2017

Dr. Mr. Goldmannn,

It is very hard to understand what you mean by the reference to "... the core values of the Union, namely democracy, the rule of law and human rights".

Let's, for example, remember how Poland was accepted to the EU:

On March 17, 2003, Polish President announced that Poland would send about 2,000 troops to the Persian Gulf to take part in the 2003 invasion of Iraq.

The Treaty of Accession between Poland and the EU was signed on 16 April 2003.

According to the BBC article of July 3, 2003, the Polish Foreign Minister, Wlodzimierz Cimoszewicz, was speaking as a group of Polish firms signed a deal with a subsidiary of US Vice President Dick Cheney's former company, Halliburton.

"We have never hidden our desire for Polish oil companies to finally have access to sources of commodities," Mr Cimoszewicz told the Polish PAP news agency.

Access to the oilfields "is our ultimate objective," he added.

Poland was admitted to the EU in 2004.

From this, and from many other examples, I conclude that the EU has some other values, rather than which you mentioned.

And the “discourage the others” argument fully corresponds to the EU values.

Pierre d'Argent says

February 10, 2017

Many thanks, professor Weiler, for this illuminating post. The remaining members should indeed behave like gentlemen and extend a generous hand across the Channel. Any other attitude does not reflect well on ourselves and would indeed be counter-productive.

However, there is one scenario which deserves more reflection because, while being generous, we should not at the same time be so blindly generous as to inflict a deadly blow to ourselves. The scenario I have in mind, which really deserves caution, is the following: the UK gets access to the Single Market; after leaving the Union, it concludes free trade and investment agreements with the US and other countries, more generous than those concluded or to be concluded by the EU with the same third countries; all American (and foreign) investments flow to the UK and do not reach the Continent; manufacturing booms in the UK; goods made in the UK with US and foreign investments freely access the Union's market; unemployment is (even more) on the rise in the Union while the UK enjoys (near) full employment -- Mme Le Pen and her fellow populists convince everyone it is better outside than inside the Union. They win. The Union is dead.

I am not saying that this scenario is going to happen. But it could happen.

As a former Cambridge boy, my heart aches because of Brexit. But I have no illusion about how self-interested British politics usually is and will continue to be -- all the more when the Brexiters in government will want to deliver results to their own constituency, at any cost to the Continent.

So, while I agree with your principled view, I would be reassured if ways to prevent such scenario would also be envisaged.

Nick Notan says

February 11, 2017

Dear Mr. d'Argent,

With regard to "The scenario I have in mind, which really deserves caution ...":

This is akin to the scenarios that the Russian government did not want to happen, when Ukraine was about to sign the Association with the EU while still having access to the Russian market.

But the EU Commission stated in this regard:

"Threats by Russia to raise its tariffs if Ukraine signs the Agreement are not based on economic reasoning."

(see http://trade.ec.europa.eu/doclib/docs/2014/january/tradoc_152074.pdf)

So, for consistency, the EU's position should be that the UK, after leaving Union, can keep the access to the EU market and sign free-trade agreements with other countries, including e.g. China.

Heiko says

February 14, 2017

Globalisation is London.

Heiko says

February 14, 2017

As in Pop and political correctness.

Matthias Goldmann says

February 15, 2017

Dear Professor d'Argent,

This seems like a valid point, but I am not so sure whether we have to be so pessimistic. Now the first thing is that we should not forget about rules of origin. If the UK concludes free trade agreement with third states (e.g. US) that doesn't allow US goods to enter the single market unless they are transformed in the UK so that they count as a UK product. The problem seems to be FDI flowing from third countries (e.g. US) to the UK due to more favorable conditions.

Second, what would the investment conditions be that would make the UK so attractive as a host state for US investments that the EU-27 cannot compete? The US Model BIT is not among the most generous investment treaties. It only stipulates the standard of treatment guaranteed under customary law. As these treaties are reciprocal, it is difficult to imagine how Britain could grant more generous conditions. Also, would the fact that there might be an investment court instead of a tribunal under a parallel US-EU agreement really deter investors? Consider that decisions on manufacturing are a bit more complex and that investment agreements are by far not the only factor that counts. Other elements include the wage level (the UK is still a high wage country, despite the fall of the pound, and under your scenario, that would quickly reverse), taxes (see the current debate and the possibilities of the EU to defend herself, for example by adopting anti-dumping measures), energy prices, and the availability of a skilled workforce, to mention just a few. So even a more generous investment agreement does not automatically move manufacturing jobs to the UK.

Third, if push comes to shove, access to the single market will have to follow tightly negotiated rules. The EU does not need to grant the UK full access. It just needs to watch that it concludes a mutually beneficial agreement. With the full experience of decades of trade negotiations on the side of the EU27 delegation, I am quite confident that the EU will not succumb.

Which, in turn, does not guarantee that Marine Le Pen gets elected...

Kind regards

Matthias Goldmann says

February 15, 2017

... that Marine Le Pen does not get elected, I meant to say.

Nick Notan says

February 16, 2017

It is quite instructive that it is actually Marine Le Pen who says that Britain should not be 'punished for escaping the EU prison' and who wants to rebuild France's 'damaged relationship' with the UK. (see http://www.dailymail.co.uk/news/article-4230082/Le-Pen-says-Britain-not-punished-Brexit.html)

While according to Francois Hollande, Britain should 'pay the price' for Brexit. And the French senate has demanded a Brexit deal that leaves Britain worse off to ensure no other EU member states quit the bloc. (see http://www.dailymail.co.uk/news/article-4230302/Making-UK-WORSE-key-goal-say-French-senators.html)

This actually says tons about real, not declared, European values.