Brexit: What Does It Mean For Europe

Brexit: What Does It Mean For Europe?
Author(s): Peter D Sutherland

Source: Studies: An Irish Quarterly Review , Autumn 2016, Vol. 105, No. 419, EUROPE
IN CRISIS (Autumn 2016), pp. 309-318
Published by: Messenger Publications
Stable URL: https://www.jstor.org/stable/24871401
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Peter D Sutherland
At this time it is impossible to discuss the future of the European Union (EU)
other than in the context of the greatest seismic shock that it has suffered
since its creation. But the Brexit saga is far from complete. By the date of
publication of this article, circumstances may, and indeed probably will,
have altered the picture. Some additional and potentially traumatic events are
already scheduled that will affect the broader EU environment. For example,
on 2 October 2016 Hungary will hold a referendum on the EUs proposals for
the sharing of refugees. This referendum appears to be part of an attempt to
overturn a duly agreed law that has already been accepted by a majority vote
in the Council. This initiative could, in its final result, constitute a destructive
and unprecedented blow to the legal order of the EU. Its values have already
been challenged by Prime Minister Orbân, who has described refugees and
migrants as 'a poison that Hungarians won't swallow'.
The first and, in my opinion, one of the two great Presidents of the
European Commission, Walter Halstern, once spoke of the fact that the new
European construct would 'not have (military) divisions but only the rule of
law'. One hopes Hungary and others will recognise that 'the rule of law' and,
in particular, the supremacy of EU law has to be a vital element in our future
together. In addition, on the same day, there will be the re-rerun of the Austrian
presidential election. This may conceivably see an extreme right wing anti
immigrant populist achieve office. As if these challenges were not enough
to potentially weaken confidence in the future of the integration project, the
travails of the Euro and the growth of nationalism pose serious threats. Brexit
is, therefore, one part of a series of threats to the cohesion of the union. These
include, more generally, the increasing inter-governmentalist tendencies in
central and Eastern Europe.
Britain: the final dénouement?
As far as the UK is concerned the Brexit issue may be the final dénouement of a
long and, to some, increasingly tedious tragedy of British EU membership. It
is in fact the definitive expression of an exceptionalism based on nationalism
Studies • volume 105 • number 419 309

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Peter D Sutherland
in England. Many in the political establishment there have long sought the
emasculation of a process in the EU aimed at political and economic union.
They justify this negativism on the grounds that Britain undertook to be part
of nothing more than a free trade area. In fact this is untrue. The nature of
the undertaking was always clear and, indeed, was also explained fully in the
UK's earlier referendum on Europe in 1975.
It would be simplistic and wrong to accuse Winston Churchill of being the
major figure in the history of this tragedy but he certainly had a prominent
role in its inception. As Hugo Young wrote of Churchill in his magisterial
book, This Blessed Plot,
This last begetter of British greatness, he was also the prime exponent
of British ambiguity... In him two strains mingling in Britain's post
war presentation of herself - illusion and uncertainty had their most
potent force.
Young went on: 'He encouraged Europe to misunderstand Britain and
Britain to misunderstand herself'1. That misunderstanding has never gone
away.
From the outset the dominant intention of some powerful elements in the
UK establishment was to undermine the supranational elements in the EU
construct, including in particular the political authority of the Commission;
their wish was to convert the understanding to a purely intergovernmental one
of nation states. So, the UK has invariably baulked at the essential elements
of sharing sovereignty in a European political union.
The Schuman Plan that initiated the project of integration was produced
by men who were essentially federalist, principally Jean Monnet, Robert
Schuman and Konrad Adenauer. They were on a mission to significantly unite
two countries above all, France and Germany, who had been long divided
and mutually antagonistic. This project also appealed to some because it
would help to create a countervailing force to the Soviet Union. The smaller
countries in the Benelux group were attracted also to join Germany, France
and Italy because of their recurring experiences of the failure of independence
and neutrality to protect them in war.
A co-conspirator in the initial creation was the United States, particularly
through the role played by Dean Acheson, then Secretary of State. He helped
in disguising to the British what was actually happening in regard to the
creation of the Coal and Steel Community, crystallised through the Paris
Treaty of 1951. Monnet later explained that the announcement of the intent
310 Studies • volume 105 • number 419

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to make the Schuman Declaration on 9 May 1950 had to exclude the British,
because he knew that they would reject it2, and, of course, he was correct. At
nearly every stage of substantive advance since it j oined the Union in 1973, the
UK has been an obstinate, often obstructive, and negative force. Agreement
to the 1992 project for the Internal Market and successive enlargements were
much the exception rather than the rule. Even in the project of enlarging the
Internal Market, Britain baulked at the principle of majority voting included
in the Single European Act that was a prerequisite to its success. And many
believe that a dominant motive for UK support for enlargement was to dilute
the Union itself.
The seeds of this negativism are to be found in the history of a remarkable

island people, divided from much of the continent in which it belongs by a
thousand years of freedom from invasion, the Reformation, an empire of
great power, and the continued belief in its capacity to survive and prosper
alone. It has also been influenced by a belief in the bonds of a common
language and historic connection with much of the world. It is no surprise,
therefore, that undefeated in Europe, it would consistently display a marked
antipathy to sharing its sovereignty, particularly with others with whom it
had been in conflict over the centuries. Perhaps it is fair to point out that the
most powerful have always been the slowest to accept any limitation on their
sovereign powers.
The United States has also demonstrated this tendency in a certain reluctance
regarding aspects of multilateralism, such as its post-war rejection of the
creation of an international trade organisation. This was only remedied in the
1990s by the creation of the World Trade Organisation. As for the British,
their devotion to national sovereignty has been constant. Earlier attempts to
organise Europe, such as those initiated by the Congress of Vienna in the 19th
century, were never popular in London. Balance of power politics in Europe
was always the preferred option. As George Canning put it in the 1820s,
'every nation for itself and God for us all'.
The Brexit campaign

The referendum campaign by those who favoured Brexit was rooted in a
populist nationalism that was readily attractive to many of the population
and was promoted by some virulent and unbalanced press coverage. Some
have pointed out that the campaign and its excesses have already unleashed
demons that are not easily associated with the English, a people who are

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Peter D Sutherland
generally moderate and tolerant. 'An outwelling of poison and hate' was
how the Archbishop of Canterbury, Justin Welby, described what has been
happening in Britain since the referendum. Between 23 June and 4 July, the
week following the referendum, there was a five-fold increase in the number
of hate crimes. These included, for example, an attack on a Polish cultural
centre in west London and the distribution of far right and Islamaphobic
leaflets3.
If the issue of migration was a substantial cause of the referendum result (and
therefore of its aftermath), it was not alone as an issue causing disenchantment
with the EU. The call to 'take back control' used by the Brexiteers expressed
a sense of disempowerment but also general disenchantment that was
blamed conveniently on the EU. Decades of general criticism of 'Brussels'
by politicians and much of the press played an essential role, particularly
among the older voters who swung the result. There was little presentation of
a constructive narrative to contest the distorted characterisation of 'Europe'
as being the cause of an alleged vast influx of migrants, even though the UK
in per capita terms ranks only at number ten in its number of immigrants
(and has significantly less migrants per capita for example than Ireland).
Notwithstanding the foregoing, the European project will be immeasurably
diminished by the departure of Britain, in every sense one of its most powerful
members, a Security Council member with substantial military capacity, a
leader of those who favour open markets and one of the longest standing
democracies in the world. Furthermore, the UK's commitment to the rule of
law in its internal affairs is replicated by very few if any others.
The chaos that has followed the Brexit vote has had one positive effect.
For the moment at least, it has significantly swung opinion elsewhere in the
EU away from holding similar référendums on the issue of leaving the EU
or, even more, against the prospect of actually leaving. Support is currently
surging elsewhere since Brexit. In Germany it is up 19% to 81%, in France
up 10% to 87%, in Italy up 4% to 59%; and in Spain up 9% to 87%4. In
Denmark (which like Ireland had a negative EU referendum in the past),
people backing EU membership jumped from 59.8% before Brexit to 69%
post-Brexit. This positivity may prove to be less in central and Eastern
Europe, where many politicians seem to be intergovernmentalist, with a
strong tendency to nationalism.
As for the UK, although the likelihood of Brexit actually happening is
considerable, it is not yet certain. Many there are in a state of shock both

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about the result and about the consequences, which are only beginning to
become apparent. But many of the business community in particular are
content to wait and see, not least because they know that they have a long
wait before it is all over. Investments will be put on hold in some cases, but
relocation is a last resort to be availed of only when and if it is clear that the
UK will ultimately be denied full access to the Internal Market. Even still, I
have considerable doubt about whether the same result would happen now if
the vote were to take place again.
What happens next?

Some voices are now being raised asking for a possible rerun of the
referendum, probably expecting that this might only happen once the
negotiation of Brexit is complete. If the final result causes political chaos in
the Conservative Party (as it may well), then anything is possible. In addition,
at least one legal challenge to the referendum process is now being brought.
There are a number of issues on which it will be fought. Fundamental to
these proceedings is the unwritten British Constitution. Its essence is the
sovereignty of parliament. Whilst the so called 'Crown Prerogative' can be
invoked in certain circumstances to enable a government to act without the
explicit authority of parliament, the question being asked now is whether
parliamentary authority through a vote is required for the UK to even trigger
the exit process by serving notice of withdrawal under Article 50 of the Treaty
of the European Union (TEU). The question may also be asked as to whether
the final outcome of negotiations under Article 50, that may well result in a
very different outcome to that suggested by the Brexiteers in the referendum
campaign, creates an argument for another referendum. This Article 50
negotiation will immediately be voted on by the other 27 Member States
by Qualified Majority under the TEU. Also mixed into these issues is the
question as to whether an Article 50 notice, once given, can be withdrawn.
My own belief is that this can be done at any time before completion.
For the moment the best prospect before us all is of a negotiation under
Article 50 having been concluded by 19 July 2019, the date of the next
European Parliament elections. The uncertainties of the present situation will
therefore persist for at least a number of years. These include, in the Irish
context, the issue of the need for a hard border with Northern Ireland. As
the situation is unprecedented and the negotiating position of the UK has
not been clarified, it is not possible to reach even tentative conclusions as to

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Peter D Sutherland
how this may unfold. It does, however, seem clear that the issue of migration
and the free movement of EU nationals will loom large in the negotiations
to take place.
The 27 remaining members will no doubt bear in mind that this negotiation
and its outcome may be used at some time in the future as a precedent by
others. As the German chancellor Mrs Merkel has said, 'cherry picking'
will not be acceptable. But this seems to be exactly what her counterpart,
Prime Minister Theresa May, is seeking when she speaks of a 'tailor made'
British solution. Even those countries, such as Ireland, with a great economic
interest in market access being preserved with the UK, should not risk
irreparable damage to the entire integration project by breaching fundamental
principles to accommodate this outcome. These principles should include the
indivisibility of the four freedoms: goods, capital, services and people.
Alternative models
The question by-issue is whether there can be a trade-off between the

openness of British trade with the rest of Europe and the free movement
of people. Many Brexit campaigners have claimed that British voters can
continue to enjoy the economic benefits of the Internal Market of the EU
while retaking control of borders and restructuring the free movement of
people. Currently there is some talk of permitting a 'temporary break' on EU
migrant flows. This would effectively be an option for an 'EEA (European
Economic Area) minus' model, while allegedly maintaining the principle of
free movement. So it would be the Norwegian EEA model, with some limited
restriction on the principle of free movement. It is hard to see this working,
but some may support a strictly confined break provision, whereby the UK
can invoke a temporary break from its obligations in the event of a sudden
surge in migration.
On the other hand, if the UK is, as it seems, determined to introduce some
right of permanent controls on the migration of EU nationals, this will not
be permitted by the rest of the EU while, at the same time, it is granted
full access to the Internal Market. The principled belief in the indivisibility
of the four freedoms has been forcefully and unambiguously expressed by
Mrs Merkel, French president François Hollande and European Commission
president Jean-Claude Juncker, to name just these three.
The EU position on this had also already been made clear in the aftermath
of the Swiss referendum in February 2014. At that time the people decided

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to exclude Croatians from the Swiss obligation to permit free movement,

following Croatia's accession to the EU. This has been disallowed by the EU.
One alternative to the EEA approval, that would not necessarily require free
movement of people, would be to enter a free trade agreement simpliciter. At
the end of the day this may be the most likely outcome. In such a scenario,
the agreement would be much more restrictive than required under an EEA
agreement. On existing precedents, it would not merely be restricted to goods
but would also be likely to require border controls. It would not include
services, and services account for over 79% of the British economy. Even
this severe limitation to goods movement only would not be without other
severe complications for the UK. It would also require British submission to
the EU common rule-making and regulatory harmonisation on products (and
perhaps even labour standards) and on other non tariff barriers. These would
be determined without the UK even being at the table when they are being
decided upon. Furthermore, free trade agreements with third parties can only
be negotiated after the conclusion of the Article 50 negotiations, because its
terms will determine British access to the EU market.
Beyond the theology of European integrationalists, there is a fundamental
principle in requiring the association of free movement of services with that
of people. Services, be they financial or consultancy, generally require people
to cross borders and, while external states can in theory provide services to
an Internal Market of which the state in question is not a member, it is hard
to see this being countenanced in the absence of free movement of people.
These services are likely to be clustered in one location, to benefit from the
sharing of technical know-how, and operating in various countries within the
larger Internal Market. There is therefore a strong reason why free trade in
services without free movement of people is not in the interest of the service
importers, as the ability of nationals from countries within the Internal Market
to work for service providers within the UK would be impeded. Nor, one can
add, is it in the interest of service importers within the EU to have free trade
in services without the UK being subject to EU regulations.
So, the plain economic point is that the free movement of services is
intimately linked to the free movement of people. But this is not the most
basic issue at stake. The principle of free movement in the EU and the reason
that it ought not to be sacrificed to accommodate a British 'tailor made'
relationship within the Union rests on more fundamental grounds. The right to
live, work or study for all EU nationals has been enshrined in the EU treaties

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Peter D Sutherland
from the Treaty of Rome in 1957. The Treaty of Maastricht then reinforced
the original stipulation with the vital concept of EU citizenship. Europeans
generally have become very conscious of their rights. Eurobarometer polls
have constantly underlined the popularity of the idea, with more than two
thirds of Europeans considering that free movements has economically
benefited their country. 56% of European citizens consider it to be their 'most
cherished right' (see European Commission communication of 15 January
2014, citing Eurobarometer). It is ranked by Europeans as being an even
more important achievement of the EU than peace.
As free movement is part of the acquis of the European project, now
fundamentally linked to the idea of EU citizenship, it has to be strictly
distinguished from the situation pertaining to third country migrants and
refugees. The UK and Ireland have never been members of Schengen and,
through the continued existence of border controls with other EU countries,
they retain the right to examine passports and deal with third country migrants
and refugees differently. On the other hand, every Union citizen has the right
under a 2004 Directive to travel freely to another Member State, subject to
certain minimal conditions. Article 9 of the TEU specifies that every person
in the Union is a citizen of that Union, if he or she has the nationality of
a Member State. This brings extensive rights specific to European citizens
in host countries and, as a result, some 14 million European citizens have
settled in other European states and availed of the rights afforded to them.
To permit the UK to be part of the Internal Market, but to deny free
movement, would be an unprecedented breach of a fundamental principle
provided by full membership of the EU. It would create the prospect of others
within the EU claiming a similar right to abrogate this fundamental principle.
In summary, if, on the other hand, Britain were to seek to become a member
of the EEA, it could retain access to the Single Market, but free movement of
people would persist, and Britain would have to continue making substantial
payments to the EU, while accepting common rules and regulations over
which it had no real influence.
It is hard to see such an arrangement being acceptable in Westminster. It

would be argued that Britain would have accepted more or less everything
it voted against in the referendum. Indeed the chief British negotiator David
Davis appears to have already rejected the EEA as an option. So, those who
campaigned to 'take back control' certainly would not see this as a viable
course of action, Mrs May seems to have ruled out this option too.

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There is no clear example to be followed should the free trade agreement

option be the preferred route, as none of the alternative existing agreements
are anything like as comprehensive as what will be sought by the UK. The
most ambitious is that with Canada, which has been agreed but not yet
ratified. Financial services are excluded and tariffs or quotas will remain in
some cases, such as for eggs and meat, and tariffs on cars and ships will only
be reduced gradually. Other areas, such as government procurement are also
excluded. Border controls with the EU would be likely to follow from this
option.
The apparent confusion within the British government around the Brexit
negotiations is demonstrated by some of the pronouncements by ministers
having a role in these. This is particularly evident from statements by Liam
Fox, Minister for International Trade. For example, he seems to favour
Britain opting to leave the EU customs union. He speaks of Britain setting its
own tariffs with third countries. But, if this were to happen, border controls
between the EU and the UK would necessarily follow, even if there was
a free trade agreement in force. Otherwise, goods could be imported into
the UK and re-exported to the EU without the application of the common
external tariff maintained by the EU.
Brexit and Ireland
It is all very well for Ireland and others for the moment to avoid pressing the
UK to serve its Article 50 notice and to explain its post Brexit ambitions. It
is also all very well to utter soothing words about Ireland in the final event
not having 'hard borders' with the UK. But there are a number of reasons
for not taking a relaxed view about the timing for these matters. The utter
confusion that exists today inhibits investment both in the UK and Ireland.
It also has a destabilising affect on the European economy. It is simply not
correct to assume, either, that, at the end of the day, 'everything will be all
right', that some way will be found in the frightfully complex negotiations
ahead to bring about a happy conclusion. I find it hard to see how the happy
conclusion can happen.
Finally, let me say something about Ireland's essential interests in all of this.
Above all, these must be in favouring an outcome that does not undermine
the European Union itself. Ireland surely recognises that membership of a
cohesive and integrating EU is essential for its future.
That membership has opened not merely the physical borders of Europe to

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Peter D Sutherland
our goods, services and people but also the borders in our minds.
More fundamentally than our apparent pragmatic interests the EU is
worth defending because it is the most noble political experiment in the
long and terrible history of our continent - a continent riven by nationalism
and religious division over centuries. In a globalizing world the EU should
remain as a haven of relative tranquility and the application to society of
values. In this remarkable construct Ireland must play an active not a passive
role in facing the forces of disintegration that are gathering. These seek and
may bring about a Europe that is not a single undertaking. It will be a Europe
of 'opt ins' and 'opt outs'. An EU à la carte. We have already taken too many
steps in that direction and Ireland should help to draw a line in this process
of disintegration.
I have never been convinced of a need for a fundamental reform of the
EU. It has been and is a remarkable success and the talk of a reform agenda
in Britain and elsewhere is often a euphemism for the destruction of the
supranational institutions that already exist. Instead of being a dependency,
we in Ireland can influence our own destiny through shared sovereignty in
a manner that we never could at any time prior to our accession. This is
precisely because of the supranational aspects of the European Union.
Peter D Sutherland is UN Special Representative of the Secretary

General for International Migration and former European
Commissioner
Notes
1 Hugo Young, This Blessed Plot: Britain and Europe from Churchill to
Blair (London: Macmillan, 1998), p.6.
2 ibid., p.52.
3 See The Guardian, 5 July 2016.
4 IFOP poll taken between 28 June and 6 July 2016.

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Brexit: What Does It Mean For Europe

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