Swindon Philosophical Society Lecture

BREXIT:  A DIFFERENT PERSPECTIVE

ROBERT BUCKLAND QC MP

LECTURE TO SWINDON PHILOSOPHICAL SOCIETY 26.4.19

INTRODUCTION

Tonight, I want to talk about Brexit, but, I hope, in a somewhat different way from the current debate.  It is fair to say that it has been a constant presence in my working life for the past three years, whether it be the passage of constitutional legislation through the Commons, the examination of other Brexit legislation prior to its introduction into Parliament or the work I have done with colleagues on potential ways of unblocking the impasse.  I could spend the next hour with tales from the front, but, interesting though that may be for some, I don’t really think it an appropriate presentation for the Society. For my own part, I would find it an arid and unproductive use of an evening, especially to the Philosophy Society. On the previous two occasions when you were kind enough to invite me to submit a paper, I have done my best to step back and take a wider view of the discussion topic.  I propose to do that again tonight, firstly by looking at the differing perspectives that can cause confusion, examining our perception of Europe itself and, after a brief canter through the postwar history of European institutional development, a view of what the future could be like.

WHAT DO PEOPLE MEAN BY BREXIT?

In a literal sense, the word itself, which first appeared as long ago as 2012 can be explained simply as the UK’s exit from the EU.  That is the easy part.  Perhaps we should start with this; when people talk about Brexit, we should not assume for one minute that they are all talking about the same thing.  We all know the arguments about whether Freedom of Movement, an independent trade policy or the end of the jurisdiction of the CJEU were key motivating factors but I am not even talking about that. Step back for a moment, and take a wider view.  Is Brexit really just about the EU, or is it about something else, larger or smaller?  Is it really about our own domestic politics or is it about Europe?  Us or them?  There, I have gone and done it already.  Who precisely are “us” and “them” anyway?

The use of the words “us” and “them” when referring respectively to the UK and the rest of Europe is, shall we say, a subjective and indeed not uncontroversial characterisation.  I have said often in the past that we are them and they are us; our civilisation, geography and history are so bound up together that to try to ignore it is nothing more than a fool’s errand.  And yet, with the ties that bind, we also have the walls that separate- be they language, legal system, democratic tradition.  Three EU member states were fascist dictatorships at the time of my birth.  Nine of them were within the Soviet sphere of influence only thirty years ago.  There is no similar experience here in the UK.   

And then we come to the question of whether we, Britain, are coming or going.  Those of us who campaigned to remain have always felt that leaving is a form of rejection, retrenchment, withdrawal, retreat.  We are often guilty of being somewhat unfair to those who supported Leave.  I don’t believe for one minute that Leave voters associated Brexit with retreat.  Brexit was more about the governance of Britain than it was about the European Union itself.   Brexit voters were persuaded that life beyond the EU would be a better place for us, with a greater measure of freedom and, yes, independence.  For them, the movement was forward, not back.  These are very different perspectives on the same issue, as you can see.  The very words themselves-leave or remain, have connotations all of their own, as we shall shortly examine.

FOUR PROBLEMS OF PERCEPTION

Here is the first of the problems with this issue and how it is perceived.  What has happened with the Leave/Remain divide, to my mind, is as if two tribes are looking past each other, in different directions, to a middle distance where different things lie.   Neither side is listening to each other.  Increasingly, the two sides don’t seem to want to be aware of each other. To the Remainer, the loss of formal ties to neighbouring countries represents a shrinking of the horizon.  To the Leaver, who is looking in the opposite direction, they can see a wider horizon opening up as they leave behind what was to them too narrow a compass.   This does not cover all of us, of course, but my argument is about perception and the way in which the issue has moved.  It is no longer a dialogue, but a series of monologues directed in entirely different places – the echo chambers of social media, for example.

The very words “leave” and “remain” conjour up images that have pervaded the debate.  Leave is an active verb, connoting movement from one place to another.  It has given rise to metaphors about the UK physically setting sail on the open seas, or mooring off the East Coast of America, rather than staying anchored to the continent. It also conveys an air of risk; of finality; a sense that there is no going back, and that things will be different for ever as we embark upon a new but unknown future.   In short, risky but exciting. “Remain” is a somewhat more passive concept; suggesting on the one hand continuity, safety, familiarity but on the other hand torpor, sameness and stagnation. In short, reassuring but unexciting.  What if the words had been “Depart” and “Stay”, “Depart” and “Remain”, “Leave” and “Stay”? Would that have changed perceptions?   The Electoral Commission worked on this very issue in 2015, and recommended a change to the Government’s original question, which had been to ask the question: “Should the UK remain a member of the EU?” which would have prompted a Yes/No answer, as in previous referendums.  The Commission did look at issues such as “stay” versus “remain” but the evidence was somewhat mixed.  My point about this is not that I think these differences would have changed the outcome, but that these words have become totemic, defining positions that just didn’t exist even a few years ago.

And then there is a second problem.  Too many of us have talked about the Brexit process as if it was a purely domestic event.  I have been struck by the lack of curiosity by our UK media to fully follow or attempt to analyse the position of the EU and the other 27 member states.  Very few of our national titles retain a Brussels correspondent.  Our negotiating opposite numbers have been seen as inanimate objects at best, and hostile combatants at worst.  Neither caricature was true, of course, but what it led most people to do was to forget that this is an international negotiation, and that viewing things through European eyes was something that all of us had to do.  Too few of us, it seems to me, have done this.  In my mind, I have always taken the view that, whilst there are distinctly competing and sometimes conflicting interests between the other member states, a negotiation involving a party who wants to leave an organisation versus a group who want to protect it was never, ever going to be straightforward.

Then there is the third problem, which is that the Brexit debate has been viewed, reported and cast entirely within the confines of the Parliamentary, institutional, and inter-governmental view.  This dimension was clearly always going to be of great importance, but it is not and should not be the only way in which to approach the issue. Brexit was a decision taken by 35m different individuals.  How, then, do we get back to their standpoint, and their view of Britain and Europe?

Firstly, by putting the politics to one side and starting with culture and personal experience- the emotion of it, if you like.  Human experience will have been a vital factor in shaping the individual views of those who voted.  Those of us who have travelled and holidayed across Europe, those of us who work in businesses with strong European links, those of us who have even lived elsewhere within Europe, are going to have formed views about it that will often be deep and lifelong.  They may be profoundly positive, negative or neutral-but these influences exist and will have played their part in the decision-making.  Take me, for example.  As a proud Welshman and a British Unionist, I have been intensely relaxed about my identity, and more than willing to share control with other parts of the UK, because the sum is greater than its parts.  For me, sharing some of that control with the EU was an approach that I could enthusiastically support; it had a logic about it too, but most importantly, I was emotionally vested in the concept as well.  That was my perspective.

There is a fourth problem, namely one of time.  I am often struck at how quickly we forget about the influences and the countervailing forces that apply at various times and which, unsaid, get put or swept aside as new factors emerge. But do they ever really leave us?   As TS Eliot wrote:

“Time present and time past
Are both perhaps present in time future
And time future contained in time past.”

This issue has been used in a basic way by both sides of the argument, either as a way of suggesting that the vote itself should be put to one side, succeeded by another one or treated as some sort of a dream, or by supporters of the result who say that time is being used as a reason to prevent the outcome from happening.  The truth is that, whatever side we might be on, the passage of time can play tricks with us, where we start ascribing views we have acquired since the vote to the views we had then.  The “no deal” Brexit outcome is one such example.   Having been a participant in many debates during the referendum, I heard no-one mention this outcome.  Secondly, when we have much talk about revocation of the Article 50 process; my recollection was that the Remain campaign said that this vote was definitive and would be followed.  There was no serious discussion on either side of the nuances of Article 50, its extension or any other such detail.  This begs the “what if” question, but more profoundly, we all need to acknowledge that as this is an unprecedented and prolonged process, then time was always going to play tricks with our perspectives.

These, then, are the real problems when it comes to Brexit.  What of Europe itself, what does it mean to us?

WHAT DOES EUROPE MEAN TO US?

At many levels of human activity, our links with other European countries aren’t institutional at all.  They may be familial, organisational or work-related.  As Britain was swept by conquest, from Julius Caesar to William the Conqueror, the origins of many of us are undeniably European.  Many of our personal experiences may be related to great sporting encounters or cultural exchanges, often whilst at school.  Whilst Brexit represents change, it does not, it cannot, mean an end to these activities or relationships.  Our links with the other countries of Europe are long and profound, and pre-date the existence of most of its nation-states.  As for the EU itself, we are kidding ourselves if we think that the intricacies of the Spitzkandidaten process at the European Parliament, the Commission structure at the Berlaymont Building or the rotating Presidency of the Council of Ministers loomed large in the collective consciousness.  There was no emotional link between us and these institutions.  When you think about it, taking the long view, forty-five years is the blink of an eye when it comes to the history of the continent.  This has to mean one thing; namely that when many of us think of Europe, the EU will not be the first thing that comes into our mind. 

The sense of loss as the wooden roof of Notre Dame de Paris burned last week was just as great on this side of the Channel as it was to the French.  The unifying forces of our civilisation are embodied in the church and cathedral architecture of Europe, from the Hagia (Aya) Sophia to Durham Cathedral, despite the tractarian divisions which preoccupied Holy Church for much of the Middle Ages.  All of this is an echo of the Roman empire, which was the first exercise in European unity and which lasted in western Europe for about five hundred years, including what is now England and Wales.  Although we like to think that the Reformation was an English phenomenon, it was Martin Luther who first threw the pebble into the pond at Wittenberg.  Make no mistake, this was a European phenomenon.  There is no denying that the Renaissance, and, later, the Enlightenment, were pan-European in nature as well.  Western Europe was the cradle of Western civilisation, which despite displaying what Prof John Roberts called “an astonishing cultural arrogance towards the rest of humanity” and with the exercise of unprecedented levels of power, has left its mark on world civilisation to such a broadly positive extent that until recently, it was almost axiomatic to view “the West” and “the World” as one and the same. 

Is that the case now, though?  As we think of Europe, some dark clouds may appear.  The fact is that sooner or later, the world’s largest economy will not be a democracy.  The fact that the main surges in population and economic growth are elsewhere than Europe means that all the old nostrums are being challenged.  In terms of future economic growth, the cake might be growing bigger but Europe’s share of it will grow relatively smaller and, who knows, might decline.  We became accustomed to the United States always looking in our direction, so the Pacific pivot came as a shock to some.  There are real question marks around the will of the US to continue to offer the sort of moral and political leadership that has been provided since 1945, and this is having a distinct effect upon the position of Europe in world politics.  We ought to be asking ourselves some fundamental questions about the power shift and the rise of Asia: “Is Europe still where it’s really at anymore?”  With or without Brexit, these issues would still have arisen.  Putting it bluntly, are we in danger of losing our sense of proportion in all of this?

A BRIEF HISTORY OF EUROPEAN CO-OPERATION SINCE 1945

For much of our lives, Europe certainly has been where it was at.  The experience of the War was seminal to the future of Europe.  The need to rebuild Europe economically led to the Marshall Plan.  This was not done on a national basis, but was an offer by the United States to Europe as a whole to draw up an agreed programme for economic recovery followed by US support.  The condition for receiving this financial support was that receiving countries should set up a permanent organisation for economic co-operation.  Initially, the USSR was involved, but preferred a “list-based” approach and did not support the creation of a permanent organisation.  In fact, Czechoslovakia did accept the invitation, only to withdraw it later under Soviet pressure.  The vehicle that was created was the OEEC, which has now evolved into the OECD and has 36 member states across the world with its HQ in Paris.

The Council of Europe emerged from the Brussels Treaty Organisation (UK, France, Belgium, Luxembourg and Netherlands) that had been set up in 1948, but the initiative for the creation of the Council was taken by private citizens, which makes it unique amongst international organisations.  The “Congress of Europe” met at the Hague from 8-10th May 1948, including former PMs, former foreign ministers, MPs and civic leaders from different walks of life, involving 1000 people from 24 European countries.

At the Hague Congress, a declaration was made, calling for a United Europe, - ref to free movement of peoples and goods; ref to Charter of Fundamental Rights, Court of Justice, European Assembly.  “In order to assure their security, economic independence and social progress the nations of Europe must create an economic and political union and for this purpose must agree to merge certain of their sovereign rights.”

It is at this point that we see the fault lines of the debate about Europe emerge.  The Council of the Brussels Treaty Organisation considered the proposals, with the main difference between the British insistence on an inter-governmental body, and those who wanted a federation.   The Council of Europe was set up, with each state having a right of veto and a Parliamentary Assembly that was consultative only.   The Council then adopted the Convention on Human Rights, drafted by a team led by the British Conservative lawyer-politician Sir David Maxwell-Fyfe, in 1953.  This led to the setting up of the European Court of Human Rights in Strasbourg.

When it comes to the development of the European Communities, now the EU, most of us will at least have some knowledge of the events of the early 1950s-the decision by the Labour Government not to participate in the ECSC, which was the first of the Communities that made up the EU, on the basis that it involved a supranational authority; the creation of the EEC in 1957 by the Six.  UK attempt to create a free trade area, allowing European countries the freedom to levy duties on industrial and agricultural goods entering from outside, but no levies within the area in 57/58 foundered.  This led to the creation of EFTA in 1959 and then to the decision by Harold Macmillan in 1961 to seek accession to the EEC, De Gaulle’s refusal in 1963 and then our eventual accession in 1973 after Georges Pompidou was persuaded by, amongst other things, the gastronomic diplomacy of Edward Heath and Christopher Soames. Why is this relevant?  It helps us understand with greater clarity the issues that we now face today.  Importantly, it reminds us that many of the issues involved with Brexit are not new at all.

EUROPE TODAY

Since the War, the progress that we have made in Europe has been immense.  We have made huge advances in prosperity, equality and freedom.  However, we still experience pockets of relative poverty, and a significant group of people who have to rely on low-skilled, low wage jobs that take them around the continent- a “precariat”, living with uncertainty and sometimes becoming the breeding-ground of alienation and worse.  

The two pillars of progress have been NATO and the EU, but the latter has not created a sense of pan-European identity.  As the memory of the War fades, we are left with a sense of distance from the institutions we have created, and a lack of opportunity for active political engagement.  

What are the common European principles?  They can be summed up in the following way: Rule of Law, democracy, freedom, peace, transnational bonds of friendship and sustaining economic wellbeing.  All of this cannot be guaranteed, however.  We have to acknowledge the growth of insecurity.  Chief among these concerns is energy insecurity.  How sustainable is the use of gas and oil supplied from Russia and Caucasus?  Is not the drive to renewables not only good for the environment, but for political stability too?  The mass migration of peoples from unstable regions of sub-Saharan Africa and the Middle East has thrown up a host of logistical and political challenges.  

What are the greatest achievements of post war Europe?  The creation of a Germany that has turned away from its past and whose predominating approach is one of liberal internationalism, underpinned by its unshakeable bilateral commitments to France.  The end of the Cold War and the extension of democracy into central and Eastern Europe.  The challenges posed by wealth inequality and also the irony that increased globalisation has led to a growth of individualism too mean that the cumbersome machinery of the EU is not able to respond swiftly or deftly.

THE ORGANISATIONS THAT WE ARE NOT LEAVING

Let’s not forget the organisations that the UK continues to play a key part, such as the OSCE – Organisation for Security and Co-Operation in Europe, set up after Helsinki Declaration of 1975 and involving all of Europe, Russia and North America.  It works in the fields of political/military, economic/environmental and human rights, free elections, human trafficking and gender equality.  It is recognised as a regional body by the UN.

The work of the Council of Europe and its institutions goes on.  The Court still has a stubborn backlog of cases, but the number has greatly diminished in the nine years since the reforms made under the Interlaken Declaration.  The UK and our judges have done much excellent work with the Court, creating a closer and stronger relationship and a much deeper understanding of and respect for, our mutual institutions.  Work continues to ensure that the Convention is implemented more thoroughly at national level, reducing the need for cases at Strasbourg, that future judicial candidates are of the best possible quality and that the way in which judgements are implemented is improved too.  

Alongside this, the work of the Venice Commission on democracy and the rule of law and other bodies such as GRECO (Group of States Against Corruption) who produce international best practice standards on transparency and monitor the performance of member states on them, are doing vital work to maintain and strengthen the rule of law.

The Council is now seventy years old, and our commitment to it remains profound and unshakeable, as the Attorney General said in Strasbourg only this week.  As you can see, there will be plenty for us to do in Europe on an institutional level, even after Brexit.

POST BREXIT-A NEW WAY OF DOING THINGS?

One of the issues that Brexit has opened up is the law itself; where it is made, by whom and how it is enforced.  One of my abiding concerns about our EU membership had been the growth in the role of the CJEU.  Over the years, some misconceptions have been allowed to grow about the Luxembourg Court.  First and foremost, it is NOT the ECtHR and operates entirely separately and under the EU Treaties.  Secondly, there is no right of individual appeal to the Court as there is for the ECtHR.  If a domestic case involves a matter of EU Law, then the Court concerned may refer the issue to the CJEU for its guidance.  The Court’s remit is to make rulings about the interpretation of EU law and how it applies in each member state.   In other words, its word is final as to the application of EU Law in the UK.  This does not mean that the Court reaches in to all the nooks and crannies of our domestic law, but there was a serious question mark as to judicial activism and the extension of its current reach which has always been a serious issue for many Brexiteers. 

For the law to be clear, it needs to be accessible and certain, which is why I am always nervous about the concept of constitutional courts having the ultimate say over legislation and its meaning, for example.  My view is that we should be using Brexit as an opportunity to open a new discussion about the law that involves everyone-public legal education, if you like, that is focused on the need for us to feel that our legal protections are clear and accessible, and that the rule of law is more than just a few words on a page.  Bringing the law closer to the people is not a one way process; we need to bring the people closer to the law too.

When it comes to our own systems of democracy, many of the conventions that have sustained Parliamentary supremacy and the checks and balances of our unwritten constitution have been strained and stretched, not necessarily to breaking point but in ways that mean that we may never completely revert to things as they were again.  Parliament has asserted itself in a way that would have seemed impossible a decade ago.  The lack of a majority for one single party has been the prime cause of this, it has to be noted, but the profound constitutional issues that have been thrown up by the Brexit process have contributed very heavily to this trend too, it has to be said.  I won’t dwell upon the ways in which we can learn from this experience, save to say that in the brave new world of social media, then the need for a clear understanding of the role of the elected representative is greater than ever.  

When it comes to our future relations with Europe, then assuming that we do leave the Treaty institutions, the onus on the UK to engage even more with our neighbours becomes greater.  UKREP, which is our current diplomatic delegation to the EU, will be enlarged as it becomes the UK Mission to the EU.  Rather than us being a passive observer of events, I want the UK to help lead the way in advocating new initatives, whether it be greater co-ordination of energy supply, more green infrastructure initiatives or further progress on increasing mutual opportunities for services, which form such a major part of our economy and for which there is a big appetite in Europe.

It is difficult when discussing our future relationship not to start straying into the thorns of what the next stage of negotiations may produce.  I have learned from my experiences on this that crystal ball gazing is not productive, but the concept of a New Europeanism is something that we have to pursue, if our position on the world stage is to be maintained.

CONCLUSIONS

I do not claim to have the power or influence to set things straight when it comes to the confused and different perspectives that so often serve to divide at the moment.  In ensuring that we all recognise and understand these different perspectives as we chart a path forward, we can emerge, chastened but strengthened, from all of this and continue to play a positive role in the world.