An abrupt withdrawal could undermine our political systems, says a former British government legal adviserby Philip Allott / September 12, 2018 / Leave a comment
“Wars are not won by evacuations.” So said Winston Churchill on 4th June 1940 after the evacuation from Dunkirk. If the UK were to withdraw helter-skelter from the European Union on 29th March 2019 without an agreement, it would certainly not be the dawning of peace in our time. It would be the beginning of a disorderly reconstruction of the British constitution and legal system, the British economy, and Britain’s place in the world.
Liberal democracy cannot bear very much chaos. The wonderful achievement of a good liberal democratic society is that it is able to combine stability and progress using immensely sophisticated homeostatic mechanisms designed to manage change, systems developed over centuries of trial and error, a process reminiscent of evolution by natural selection.
Britain does not have much experience of revolutions. In the 19th century, Britain was the only major European power that avoided violent revolution. The British parliament became a “revolutionary body,” said Engels. According to the Duke of Wellington, as prime minister, it was “revolution by due process of law.” Breakdown in the rule of law after a “no deal” withdrawal from the EU could cause a general breakdown in our constitutional systems.
If, in the run-up to 29thMarch, no agreement is struck, the UK could withdraw its notification of intention to withdraw, telling the European Council that it had changed its mind. It could work to get the two-year time-limit extended, given that the time-limit is manifestly absurd in the case of the UK. Or it could decide to withdraw without an agreement.
Whose decision would that be? The executive branch of government (HMG)? HMG with the approval of parliament? HMG with the approval of the people? Or a joint and several act of omission? Given that the decision could produce catastrophic effects, it is quite important to know who would be responsible for it. We all have a responsibility to try to foresee its hopelessly unforeseeable consequences.
The first level of chaos in the event of no deal would be at the level of everyday law. When the UK joined the European Communities in 1973, Lord Denning, a then famous judge, said that EU law is an incoming tide. It seeps into everywhere. It is difficult to sweep back. So long as the EU itself survives, we in the UK will always be subject to EU law, if we want to trade with states that are ruled by EU law or to do anything else within the EU which is subject to EU law. On no deal B-Day people would have to start renegotiating millions of existing legal acts and situations involving EU law, leading to a tsunami of legal proceedings in this country and across the world, lasting for many years.
“People would have to start renegotiating millions of existing legal acts”
The second level of chaos would be institutional. On no deal B-Day the UK would lose its power over the making of EU law and its interpretation and application. That might be softened temporarily by the terms of a Brexit agreement. A no-deal withdrawal would be a cliff-edge.So long as the EU survives, we will always be subject to the jurisdiction of the European Court of Justice, which has the last word on what EU law means.
EU law is implemented through countless subordinate organisations, agencies and committees: for example, relating to medicines or the movement of capital or anti-trust or the environment. The UK would cease to take part in that work. We would also have lost a second nationality. We would have to set about re-organising ourselves to satisfy two legal systems.
The third level of chaos would be international. The EU has hundreds of agreements with non-member states, including “mixed agreements” to which EU member states are also parties. It could take years to sort out the position of the UK in relation to those agreements after a no deal withdrawal. The World Trade Organization Agreement is a mixed agreement.
There is a collective fantasy that the UK could rapidly conclude trade agreements with other countries. Those agreements would have to satisfy the essential principle of the WTO system. A trade preference given to one country must be given to all WTO members, unless the two countries are members of a customs union or a free trade area. The task could last for years.
It is at the highest international level that there may be greatest cause for concern about a chaotic British future. In a world that threatens our national flourishing, we would, overnight, have lost our place as a dominant member of a potential world-power of more than 500m people. It is tragic that successive British governments have failed to make good use of that power, in the new role in Europe that US Secretary of State Dean Acheson, in 1962, had encouraged us to assume.
Philip Allott was an FCO legal adviser who was the first Legal Counsellor in the UK Permanent Representation to the European Communities in 1972. He is now Professor Emeritus of International Public Law at Cambridge. His most recent book is Eutopia: New Philosophy and New Law for a Troubled World.