Steve Peers

Prime Minister Theresa May’s recent speech provided insights into the UK government’s approach to Brexit. While there were some positive takeaways, the speech ultimately presented a flawed vision for the country’s future.

Positive Aspects of the Speech

The speech commendably acknowledges that a successful EU remains in Britain’s best interest, both economically and in terms of security. May’s suggestions for the EU, though unlikely to be well-received, offer some sensible points. Her criticism of excessive uniformity within the EU, however, seems ironic given the UK’s history of opting out of certain EU policies and securing budgetary rebates.

The continued commitment to preserving the status of EU citizens in the UK is welcome, though it would be preferable if these rights were unilaterally guaranteed, potentially through a draft bill or reciprocal agreement with the EU. Hopefully, this issue will be addressed promptly in the negotiations.

The desire for continued collaboration on research, policing, and foreign policy is also positive, reflecting shared interests between the UK and other Member States. However, the speech lacks specifics: what form this collaboration will take remains unclear, and it seems at odds with May’s assertion that the UK will not be involved with select aspects of the EU.

Single Market and Customs Union

The Prime Minister voiced her opposition to any form of EU membership that would leave the UK partially in or out, but these categories are artificial. May is attacking nonexistent constructs.

She confirms her opposition to UK membership in the single market (as opposed to access), citing several reasons. Notably absent is any claim that the UK would be better off economically outside the single market. The Institute for Fiscal Studies, in fact, predicts a 4% GDP loss for the UK if it leaves the single market without a free trade agreement due to reduced market access. While May seeks a free trade deal, this will inevitably result in less trade than single market membership, as it does not eliminate non-tariff barriers as effectively.

What then are her reasons? One is immigration control, as free movement of people is a non-negotiable requirement for single market participation. However, she disregards the EEA treaty’s safeguard provision that could be used to manage free movement. Her portrayal of free movement exaggerates its strain on public services and ignores the broader economic benefits of EU migrants, attributing these issues instead to government underfunding.

Another reason is budget contributions. She rejects any contributions beyond those for participation in specific programs, disregarding the possibility of the EEA model, which provides more control over spending in return for enhanced market access.

The role of the European Court of Justice (ECJ) is another concern. May argues that single market membership means accepting the ECJ’s legal authority in the UK. This is simply not accurate. EEA states are not subject to the ECJ but to the separate EFTA Court, which has narrower jurisdiction. Many EFTA Court rulings are not binding, and it is only obligated to follow ECJ rulings issued before 1991.

May broadly claims that single market membership is essentially the same as remaining in the EU. This is also misleading. EEA members are not subject to EU regulations concerning agriculture, foreign policy, fisheries, justice and home affairs (except in some cases through separate agreements), or trade with non-EU nations, which constitutes a significant portion of May’s speech.

This exposes a false dichotomy in her speech: the choice between EU membership and a “Global Britain.” In reality, trade barriers with non-EU countries have been decreasing due to EU membership in the World Trade Organization (WTO) and bilateral trade agreements. This has led to an increase in UK trade with non-EU nations, as proponents of leaving the EU often highlight. Many other EU countries actually trade more with non-EU states than the UK, as May herself acknowledged last year. Therefore, EU membership is not a significant obstacle to trade with these nations.

It is true that being in the EU customs union prevents the UK from independently negotiating trade agreements with non-EU countries. However, the UK could pursue staying in the single market like Norway while exiting the customs union. Norway and other EEA countries have successfully negotiated their own trade deals. This would effectively be the best of both worlds: maintaining maximum access to the EU internal market through full participation while having the flexibility to forge trade agreements with other countries.

May contends that both sides in the referendum clearly stated it was about the single market. However, the single market was not on the ballot and was rarely mentioned. When it was, some Leave supporters explicitly stated that single market membership would not be affected. Many Leave supporters asserted that the UK would not be exiting the EEA. While David Cameron stated that leaving the EU meant leaving the single market, his statement should not be binding, particularly when other claims made during the campaign, especially those lacking supporting evidence, are not considered so.

Regarding the customs union, May proposes a special arrangement that would simplify border crossings while allowing the UK to pursue independent trade deals. Whether this idea will appeal to the EU remains to be seen.

Transitional Arrangements

The Prime Minister acknowledges that the UK cannot immediately implement a new arrangement but stops short of supporting a transitional deal, stating that an agreement on the future partnership should be reached within the two-year Article 50 timeframe, after which it would be phased in. Given the bespoke deal May envisions, with unique customs arrangements and a comprehensive free trade agreement, this timeframe is unrealistic. What happens if this arbitrary deadline is not met?

Parliamentary Role

Early in her speech, May emphasizes the principle of Parliamentary Sovereignty as fundamental to the UK’s constitution. Unfortunately, these words ring hollow. Anyone unfamiliar with the situation would assume from her statement that she had taken legal action to ensure, rather than obstruct, Parliamentary involvement in triggering Article 50.

Moreover, her speech replaces any white paper or public consultation on the best post-Brexit path. She concedes that Parliament will vote on the final deal, but this offers little choice—a free trade deal or nothing—unless there is an option to negotiate a different deal (for which there is insufficient time) or hold another referendum on the exit terms (rejected by the government). In any case, this is not a genuine concession: the Constitutional Reform and Governance Act of 2010 already mandates a degree of Parliamentary oversight for most treaties. She did not commit to a full Act of Parliament to approve the final deal, even though this is required for minor amendments to EU treaties and the approval of some EU legislation.

May seeks recognition for something she is legally obligated to do. In reality, her previous threat to disregard the law and her current efforts to minimize Parliamentary involvement while presenting them with a fait accompli are worthy of criticism.

Regarding the incorporation of EU law into UK law through the Great Repeal Bill, she states that changes will only be made after thorough scrutiny and Parliamentary debate. While seemingly positive, this falls short of a commitment to utilize Acts of Parliament for key issues. It suggests an intention to rely on Statutory Instruments, which are difficult for Parliament to amend or block. Without a commitment to utilize Acts of Parliament, her guarantee to uphold workers’ rights derived from EU law holds little weight; there is no such commitment regarding environmental law.

Devolved Administrations

The Prime Minister asserts that preserving the Union is paramount and that she will strengthen it. However, her plan inherently rejects the Scottish government’s December proposals for the future EU-UK trade relationship. This disregards not only the Scottish and Northern Irish public’s desire to remain in the EU but also the Scottish government’s views on how Brexit should be implemented. The Scottish government’s paper cannot be considered if it has already been overruled.

While there is a pledge not to diminish the powers of devolved bodies, conflicts will inevitably arise over which level of government should exercise powers returned from the EU. Conversely, there is no suggestion of granting additional devolved powers, which might have been appropriate given the divergent views in Scotland, Northern Ireland, and the rest of the UK. There is a pledge to maintain the Common Travel Area between Northern Ireland and the Republic of Ireland, but this lacks substance.

In essence, the speech offers nothing concrete to strengthen the Union. Its preservation hinges solely on the argument that Scotland would be worse off outside the UK’s economic union, while simultaneously asserting that the UK benefits from being outside the European equivalent.

Unity and Brexit

The Prime Minister states that those who voted for Brexit have a responsibility to be magnanimous in victory, while those who voted against it should accept the outcome. However, her speech demonstrates no such magnanimity. She dismisses the arguments for remaining in the single market made by those who, while wishing to stay in the EU, view single market membership as a reasonable compromise for a divided nation.

Her conciliatory tone cannot erase her divisive conference speech last October, with its disparaging remarks about “citizens of the world” and “liberal elites.” It is ironic that someone like Boris Johnson, educated at Eton and Oxford, would label others as “elite.”

The speech cannot erase the memory of her Lord Chancellor failing in his duty to defend the judiciary from being labeled “Enemies of the People.” True magnanimity would have been a unilateral decision to allow EU citizens to remain in the UK.

Conclusion

While some aspects of the Prime Minister’s speech have merit, such as setting a positive tone for EU relations, implicitly rejecting the more extreme “WTO-only” approach, and hopefully ending the denigration of the 48% who voted against Brexit, ultimately, her decision on single market participation prioritizes politics over the UK’s economic well-being. Key parts of the speech are vague, inaccurate, misleading, hypocritical, or simply unrealistic. “Brexit means Brexit” might have been preferable.

Barnard & Peers: chapter 27

Photo credit: BBC