This blog post is the full text of Sir Jonathan Faull’s lecture in the University of Edinburgh’s prestigious Montague Burton Lecture Series.  The lecture was delivered on 16^th September 2019, entitled ‘Brexit and the future of the Unions’

I am here today thanks to John Peterson[1], a distinguished professor in this University, a fine scholar and a good friend. His work on the European Union brought him to Brussels many times over the years and I always enjoyed his company as we discussed politics in Scotland, Britain, Europe and the USA, not to mention books and music. It was his idea to invite me to give this lecture and I am honoured to be here. But with the honour comes great sadness, as a result of John’s untimely death earlier this year. I and many others learned a lot from him and will miss him.

I will talk about the impact of Brexit on the European and British Unions. I do so humbly and in some trepidation as an Englishman, resident in Brussels for the last 40 years, speaking here in the capital city of Scotland. I declare an interest: I believe that both Unions have made a major contribution to the well-being of their member nations and their peoples. I would go further: they have also enhanced the peace and prosperity of the world and deserve to endure.

I almost forgot to mention: I also speak to you as a lawyer.  The two Unions are in themselves great legal innovations which have done a great deal, but obviously not enough for some, to reconcile cooperation between nations under the rule of law with respect for different national traditions and identities.

Let me start with the European Union. The unity between its members in dealing with the UK has been remarkable so far. Member States big and small have shown understanding for the plight of Ireland and solidarity with each other and the Brussels institutions. Michel Barnier was given a clear mandate by national leaders and has carried it out with skill and determination. Franco-German disunity on other issues did not stain the Brexit negotiations, keeping at bay the geopolitical considerations which may, however, come to the fore as attention turns to the future relationship between the EU and the UK. Nevertheless, no-one should doubt the commitment of Europe’s leaders to the Union they have built. There is no queue behind the UK for the exit door. In contrast, a question that needs to be asked is whether hardline supporters of a clean break Brexit simply want to move away from the EU or more radically to undermine and ultimately destroy it. There are people in the corridors of power in London and Washington DC who would prefer a world without the EU which stands for shared sovereignty, supranational law making and multilateral negotiations. It is for many a peace project and an embodiment of modern liberal values. It is a cornerstone of the post-1945 settlement in which Europe united to come to terms with its past and presented its post-totalitarian, post-colonial outlook to the world. This obviously clashes with a world view built on nationalism, exclusionary identity politics, religious intolerance, disdain for dissent and preference for bilateral bullying.

No human political construction should be expected to last forever and Europeans (and Britons) have to decide how they want to continue to work together in a world dominated by large, continental-sized countries, with the massive companies their sheer scale and determination engender.

Brexit should cause the EU to think again about what it is for, what policies it pursues, how it relates to the rest of the world and, above all, how it responds to the alienation of many of its own citizens which reached a climax in the British referendum. Because let there be no doubt: the UK perhaps had a unique cocktail of objections and resentments, but many of them are to be found in other European countries as well.

In a lecture in 2017[2], I asked how exceptional the UK was in its attitudes to the EU. This is what I said then and I think it still holds true:

“It is perhaps for others to say how exceptional we are, but it is true that the EU has a significance in the politics, identity and self-esteem of other countries which it does not have in Britain. It is often said that the British interest in European integration, outside a small circle of true believers, is and always was transactional, commercial, perhaps geopolitical, but never emotional or passionate.

When one looks at other Member States, one sees that:

• Former dictatorships of right and left see the EU as a democratic bulwark and a certificate of modernity.
• Former Soviet or Warsaw Pact countries see the EU as part of their new international identity and protection against Russia.
• Former colonies see the EU as a strong symbol of independence and international identity.
• Former occupying or occupied countries see the EU as a peace and reconciliation project.
• Countries tied to the German economy for a large part of their trade and prosperity want to be inside the meeting rooms where economic decisions are taken with Germany.
• Countries which do not want the continent of Europe to be dominated by a single country see the EU as the best way to achieve that.
• Countries sharing the euro as their currency or aspiring to do so will want to keep it and participate in the making of monetary policy in the ECB. The thought of abandoning the euro, re-establishing a revalued or devalued national currency and re-denominating everything is a major incentive to cleave to the status quo.

The UK fits into none of these categories. All the other 27 fit into one or more of them. So there is some British exceptionalism, but it is also true that there are other Member States which agree with many British positions and have been happy to allow the UK to lead (and take flak) on them. They will miss us and the EU will change as the pack is reshuffled.”

Meanwhile, I don’t need to tell you that UK unity is also under stress. With apparently scant attention to wider constitutional implications, the UK has stumbled into asymmetrical devolution with different arrangements here in Edinburgh, in Belfast and in Cardiff. And what about England, my continental friends ask me? Why does it not have a Parliament? Is Brexit a phenomenon of English nationalism? That’s too simple, I say, the component nations of the UK are different in many ways but there are still recognisably British politics, culture and tradition. However, electoral facts and cultural observation, even by an Englishman in Brussels, point to a divergence and Englishness has something to do with it.

I have not come to talk about the rights and wrongs of Scottish nationalism. But allow me a word of caution. We have seen the difficulties caused by the placing of an EU border in the island of Ireland. Placing one not far from here between Scotland and England would give rise to enormously complicated political, economic and social questions. Those who advocate Scottish independence within the EU without England should set out clearly how border arrangements would work. The failure to do so in respect of Ireland is mainly responsible for the current impasse in the Brexit process.

Part of the Brexit story is a rejection of the complexities of the world, a yearning for simple answers. There is probably a German word for “stop the world, I want to get off”[3]. It would be even longer than, but is not the same as, the admirable and necessary German notion of Vergangenheitsbewältigung, “coming to terms with the past”. My word would have to describe resentment of the present, loss of status, economic decline, regional disparities, social and class divisions, immigration and rules made by (I would say with) foreigners. And yes, asymmetrical devolution changing a country too many English people still think of as a sort of England writ large.  Now we have what look like English nationalists in control of government in Westminster and the Irish border is back in the headlines.

Let us pause and think of Ireland. One has the impression that for some in London, Irish independence comes as a surprise, an unwelcome discovery or a conspiracy got up in Brussels. The myopia shown by successive British Governments in dealing with the Irish border in the Brexit context is extraordinary. They were forewarned from the very beginning of the referendum discussions.

The logic is merciless and daunting:

• If the UK chooses to leave the EU’s customs union and regulatory systems in the name of taking back control;
• If what is taken back includes control of external borders;
• If all the UK’s citizens and borders are to be treated alike:
• Then a commitment to an open border with Ireland means an open borders vis-à-vis the EU throughout the UK, at Dover and Leith, at Heathrow and Turnhouse.
• But how do you have open borders with the EU without sharing its customs arrangements and rules and regulations?
• Not easily, as we have seen in the great standoff about the backstop.

A lot has been said and written about the WTO and alternative arrangements involving technology and checks away from the border. I do not doubt that, if dogma is pushed to one side, some accommodation could be found which recognises the particular problem Brexit causes in the island of Ireland, as recognised by the European Council at the beginning of the Brexit negotiations[4]. That accommodation would have to respect the integrity of the two Unions and the parity of esteem accorded to both communities and traditions in Northern Ireland.

So how firm are British and European dogmas?  Well, our Union here is not as perfect as is sometimes claimed. After all, we British are pragmatic and proud not to be bound by an inflexible constitution set in stone in different times. Meanwhile Ireland, the whole island, is already a single and separate jurisdiction for plant and animal health. Irish animals and plants, North and South, have the same diseases. Checks are carried out regularly at Stranraer and at Larne for these purposes, as they are by the way between the Canary Islands and mainland Spain for similar reasons. We all know that Northern Ireland has different politics and different laws on some fundamental personal and moral issues. And we are all used to the Irish, North and South, playing rugby and cricket together, but not football (soccer). The English cricket team which won the World Cup this summer is captained by a Dubliner. Is that weird? Well, when you begin to explain it to foreigners outwith these islands, it does seem odd, but we take it for granted. It’s the way we are.

But now we live in dangerous times. It is a single-minded interpretation of the referendum result to claim that it answered questions about how to implement it which were not on the ballot paper. This single-mindedness leads to expecting Parliament not to take account of the minority view in fashioning a way to execute the wishes of the majority. It is a sadly predictable step from there, already taken by people who should know better, to conspiracy theories about thwarting the will of the people, stabs in the back, insulting Parliament and the judiciary, blaming foreigners, the media and minorities. This is sadly familiar territory to any student of European history in the last century. We are not used in this country to mainstream political discourse about betrayal, treason, collaboration, conspiracies by enemies of the people, cosmopolitanism, repudiation of disloyal citizens of nowhere. Now we have a prorogued Parliament and face loose or deliberately provocative talk about ignoring the constitution, hatred of the judiciary, the civil service and the BBC, the appeal of a strong man, all this in the name of the putative will of the people.

Why was the House of Commons unable to reach consensus? The British political system is one in which Governments govern and Oppositions oppose.  Coalitions are said to be for wartime or for wimps.  To compound our structural difficulties, the 2017 election produced a hung Parliament and the main opposition Labour Party is ambivalent and disunited.

What could or should have happened in 2016 after the referendum? A national debate could have been held with all parties and devolved administrations on the way forward. Prime Minister Theresa May said she would do that but she did not deliver, instead resorting to soundbite slogans about what Brexit meant (Brexit) and which adjectives should be used to describe it (real Brexit, British Brexit, WTO Brexit…). The implications of Brexit were not thought about,  let alone thought through.

Over in Brussels, many aspects of today’s EU bear the imprint of British policy and people. Successive enlargements of the Union were pushed hard by British foreign policy practitioners and commentators against those who wanted to “deepen” before “widening” and would have preferred more gradual enlargement or some sort of peripheral waiting-room status as the core got on with integration. Trade policy, as implemented in successive GATT/WTO rounds and numerous bilateral relationships, rejected mercantilism and protectionism. Without the UK and its leadership of the “liberal” countries of Northern Europe which supported its positions, this might not have been the case. Competition policy too would have been more inward-looking than it has been these last 45 years. Financial regulation would not have been as sensitive to the interests of the non-euro countries; we might not have the comprehensive set of detailed rules enacted since the financial crisis started in 2007, which went beyond the original focus on creating a single market to concentrate on stability, liquidity and high quality common or coordinated supervision and regulation.

More generally and relevantly where I stand today, the British experience of a single market between nations with different laws and traditions was an example to others. Scottish lawyers, whose contribution to the development of European law deserves a lecture in its own right, always reminded us that there were 29, not 28 national legal systems in the European Union. They rightly raised eyebrows – and sometimes objections – every time a British, usually English, lawyer said with great assurance that UK law said this, that or the other. Yet constitutionally we are a United Kingdom, as the Inner House of the Court of Session reminded us last week.

Brexit marks the end of an era in the EU. A major transition to new leadership is under way in Brussels and the consensus about economic policy, trade, competition and openness of the EU to new members will be re-examined without British voices at the table. Yes, we have friends in Northern and Eastern Europe, orphaned by our departure, who will argue for some of the things we advocated, but without us. Our continent’s affairs will develop without our participation. Unless strenuous efforts are made to cooperate and coordinate, in long hours of committees and summits, divergence is inevitable.

A modern economy is regulated by means of rules applied to people, goods and services. If we wish to protect security, consumers, data, the environment, competitive markets, public health, the welfare of workers, the young, the old and the vulnerable, financial stability and pursue many other public policy concerns, we do it mainly by setting rules and standards. In Europe, and I mean the whole continent, that work is done to a great extent in Brussels. We won’t be there. We can plug ourselves in but only if we discard romantic notions of sovereignty which dismiss structured cooperation under the rule of law as vassalage.

In conclusion, both the European and British Unions are challenged by Brexit and the forces which underpinned it and which in turn have been unleashed by it. Both Unions have good reasons to survive and flourish. Both have political and legal frameworks which are being tested by Brexit and the wider reaction against the recent bout of globalisation. I say recent because phases of globalisation followed by inward-looking reaction are not new in human history, although technology has amplified our experience of this particular phase. It is my personal hope that the British and European political and legal frameworks prove robust and flexible enough to meet the challenges facing them and help them adapt to new circumstances. At the end of the day, if processes like these do have discernible ends, Scotland, England and the rest of the United Kingdom have to find ways to live together as partners and neighbours, just as the UK has to live in and with its continent and with the independent republic with which it shares an island. The ways we have found so far, adjusted as a result of the political debates under way, may turn out not to be so bad after all. The United Kingdom has been a remarkable success as a country, the European Union is a striking story of shared sovereignty under the rule of law and relations between Britain and Ireland have never been better than in the recent past. None of these successes should be thrown away lightly without a very clear understanding of what would replace them.

In my view, Unions of nations under democracy and the rule of law are a better way of dealing with current political and economic challenges than illiberal notions of strong leaders, blind faith and national exceptionalism. The narcissism of small differences, disappointingly several words in Freud’s German, not just one, should be resisted, while respect and esteem due to different traditions and cultures should be nurtured. It requires constant effort to get the balances right, but it is an effort well worth making. I offer a final thought as an Englishman in Edinburgh: lessons will have to be learned from the events of the last three years. One of them is surely that those who advocate breaking up a Union should explain clearly what they expect to happen afterwards.

[1] http://www.sps.ed.ac.uk/about/news/2019/professor_john_peterson

[2] Annual Lecture, United Kingdom Association for European Law, (2018) 43 European Law Review 780-786.

[3] The title of a popular 1960s musical.

[4] European Council (Art. 50) guidelines for Brexit negotiations, 29 April 2017 :  “In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order.”