Brexit: a personal view from 30,000 feet

Brexit

It was published online as I waited to board a flight from London to Milan. ‘Subject: Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators’ level on 14 November 2018.’ The media made much of the fact that it was 585 pages long. But like many legal documents, it was double-spaced with an abundance of semi-blank pages – in reality, more Pride and Prejudice than War and Peace. I decided to download a pdf and skim read it on the plane.

So what is there to learn from this historical legal document?

Rarely listed by their official names, the full status of the EU 27 countries is presented on page eight, save for Ireland which is not once accorded the title Republic: ‘the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Croatia, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden.’

A reminder of how republics with written constitutions dominate the continental landscape. The few remaining European kingdoms have such low-key monarchs that some are barely known beyond their own borders. But the United Kingdom is, of course, different: no written constitution and, after 66 years on the throne, the Queen is still the most famous woman in the world. At her coronation, she was asked: ‘Do you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?’ She responded: ‘I do.’

Three out of the six listed countries have since dropped off. Britain’s diminished role is also evident in the Draft Agreement, albeit as a footnote on page ten summarising that tiny legacy of Empire, known as The British Overseas Territories: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Montserrat, Pitcairn, Saint Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, and Turks and Caicos Islands. The Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus get their own special paragraph while Gibraltar is also mentioned periodically.

This scattered residue of almost invisible crimson dots, on a world map once painted a quarter red, symbolises just how much has changed over the past century since the British Empire was at its height. Some Brexiteers, no doubt, secretly yearn for those days. Brexit is perhaps the final convulsion of a nation that has still to find its place in a world that has long since moved on. The weekend before the Draft Agreement was published, the centenary of the Armistice had been celebrated – as the plane flew over the First World War battlefields, it was hard not to forget.

The Draft Agreement’s centrepiece, and indeed its central purpose, is divorce: the result of Britain’s controversial decision, following the 2016 referendum vote, to end its 45-year marriage with Europe. Under the heading ‘ARTICLE 5 Good faith’, it reads: ‘The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement.’ The word European is dropped, as if those responsible for drafting it have had enough, even though Europe and European appear multiple times thereafter in different contexts.

There is something of a novel in the Draft Agreement’s structure, divided into six Parts. Instead of a preface, there is a PREAMBLE. Like opening chapter titles, the first two Parts do not get to the heart of the matter – COMMON PROVISIONS and CITIZENS’ RIGHTS – although the Second Part matters very much to the daily lives of millions of ordinary EU citizens. But the Third Part hits home: SEPARATION PROVISIONS – at 127 pages, this is the real substance. The definitions flow relentlessly in leaden legal prose, each one designed to carefully fracture the cement that binds the UK to the EU27, and meet the two-year deadline for leaving, as specified by Article 50.  No irony is intended in the Draft Agreement’s words ‘to ensure an orderly withdrawal’, but it has been hard to see much order on display in the process to date.

Half way through, Part Four is simply called TRANSITION. ‘There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020’ – a further 21 months to sort out the remaining niceties, though no-one really thinks it will be long enough. And then in Part Five comes the money, so often the critical bit of any divorce settlement: FINANCIAL PROVISIONS and COMPETITION. ‘All amounts, liabilities, calculations, accounts and payments referred to in this Part shall be drawn up and implemented in euro,’ it states. No precise figures as yet, but it will be in the tens of billions.

The final chapter, Part Six is headed INSTITUTIONAL AND FINAL PROVISIONS. There is much here for lawyers to consider. It informs us that ‘In order to facilitate the consistent interpretation of this Agreement and in full deference to the independence of courts, the Court of Justice of the European Union and the United Kingdom’s highest courts shall engage in regular dialogue, analogous to the dialogue in which the Court of Justice of the European Union engages with the highest courts of the Member States.’

The ECJ is a lead character throughout: its jurisdiction and authority receive more attention than any other EU institution in the Draft Agreement with well over 60 separate references. But one phrase matters most: its decisions ‘shall be binding on and in the United Kingdom.’

The Draft Agreement ends rather limply with RULES OF PROCEDURE FOR DISPUTE SETTLEMENT and CODE OF CONDUCT FOR MEMBERS OF ARBITRATION PANELS – 16 pages that matter to dispute resolution lawyers, but rather less to others.

My plane had landed. A quick read through left me in little doubt that the Draft Agreement would be no Magna Carta or American Constitution. Its arid prose, compiled no doubt in good faith by industrious armies of legal draftsmen on both sides, would not be revered in centuries to come. Indeed, it seems unlikely to last a matter of weeks with little apparent prospect of its adoption by the Westminster parliament. Forged in the oppressive crucible of euro compromise, Theresa May’s deal pleases virtually no-one: it therefore seems destined to be consigned to the dustbin of history, at least in its present form.

Britain is not just a divided country, but a fragmented one since there is no majority for any available option on the Brexit dilemma: the only thing more unthinkable than leaving is staying; the only thing more impossible than staying is leaving. Whatever happened to this happy breed of men, this little world, this precious stone set in the silver sea?

Divorce really is a very messy business.

 

Dominic Carman

Written by:

Dominic Carman, journalist, writer and legal commentator.
www.dominiccarman.com