Britain and the European Union after Brexit

Vernon Bogdanor CBE, Professor of Government at the Institute of Contemporary British History at King’s College, London
Friday, April 23, 2021

On April 19, the MacMillan Center hosted Vernon Bogdanor to speak on “Britain and the European Union after Brexit.” Bogdanor CBE is Professor of Government at the Institute of Contemporary British History at King’s College, London. The talk was moderated by Professor Isabela Mares of the Political Science Department. (View Video)

Bogdanor’s most recent book, Britain and Europe in a Troubled World (2020) was adapted from his April 2019 Stimson Lectures at the MacMillan Center and was published by Yale University Press. When Bogdanor gave the lectures, Britain was still a member of the European Union and he hoped it might remain that way. On January 31, 2020, however, Britain officially left the Union. Bogdanor began his lecture by explaining that this departure was provided for in two legal instruments. The first was the Withdrawal Agreement, which was “agreed after Boris Johnson’s election victory in December 2019.” The agreement included a controversial “Ireland and Northern Ireland protocol.” The second instrument of departure was the Trade and Cooperation Agreement, which provided guidelines for Britain’s future relationship with the European Union. However, Bogdanor does not believe that these two agreements accurately represent the terms of the departure. “It is more the skeleton or the outline for a settlement,” Bogdanor said. “It is incomplete, and some matters are left for future negotiation.” These remaining matters include financial services, professional qualifications, and most importantly, non-tariff barriers to trade.

One of the questions for the now-sovereign Britain is whether the government will prioritize access to the European Union or its own autonomy. Theresa May’s government gave greater weight to access, while Boris Johnson’s government gave greater weight to autonomy. Some fear that the Trade and Corporation Agreement does not give Britain sufficient autonomy and authority. The relationship is not set in stone and can be re-evaluated in the coming years. Bogdanor outlined these questions to reveal the flexibility of Brexit, and stated that it is “a process, not an event.”

The European Union trade system is based on three principles: free trade, a customs union for a common tariff against all third countries, and an internal market theoretically free of regulations (the purpose of which is to remove barriers between any members of the union). Bogdanor explained that the Trade and Corporation Agreement provided for the first of these principles: that Britain’s future relationship to the Union would be one of free trade. That means that “we remain outside the customs union and outside the regulatory area,” according to Bogdanor. “It provides for free trade… but not for frictionless trade.” 

Bogdanor then outlined the rest of his talk. He would explain the constitutional consequences of Brexit, first on both Britain and then on the EU. He began with Britain and spoke on two major topics: the consequences for human rights and the devolution settlement for Scotland and Northern Ireland. Bogdanor, who did not support Brexit, argued first that, “contrary to what many suggest, Brexit has not led to an inward-looking nationalistic Britain, much less a racist, insular, and nativist Britain, as is sometimes suggested.” The British wanted immigration managed, not ended, he explained. Britain’s position is that “Brexit has not been associated with a rise in populism or illiberalism.” Bogdanor ventured to ask “whether it is possible to argue that Brexit has proved the means by which Britain has avoided populism. And to ask the further question of whether there are trends in the EU that are leading to populism.”

Bogdanor moved on to talking about the constitutional consequences of Brexit. Though Britain has no constitution, while it was a member of the EU, Britain abided by the constitution of the European Union treaties. Britain is doing something unprecedented—moving from a codified and protected constitution, to an uncodified and unprotected one “based on the sovereignty of parliament.” Rights are now dependent upon parliament, which goes against any previously-seen trend of democracies going from rights protection being enlarged rather than abolished. “It is rare, if not unprecedented, for a democracy to exit from a major human rights regime.” And no country as large as Britain has a sovereign parliament. Bogdanor concluded this section with the question: “Are British MPs so uniquely sensitive to the protection of human rights as compared with legislators in other countries and other democracies that he should be entrusted with this important task?”

On the topic of devolution, Bogdanor began by saying that the United Kingdom recognized that there were separate political wills in Scotland, Northern Ireland, and Wales. When the United Kingdom voted on the Brexit Referendum, Scotland and Northern Ireland voted to remain, and England and Wales voted to exit. Brexit was then decided by England and Wales, and Scotland and Northern Ireland would be dragged along against their wishes. “Brexit could pose severe strains on the unity of the Kingdom and threaten it’s cohesion,” Bogdanor argued. Brexit has revealed that the UK lives under four different constitutions, whether one looks at it from England, Scotland, Wales, or Northern Ireland. There is no longer a shared understanding of what the constitution is. According to Bogdanor, “to refashion a new form of union—a single constitution which all four territories can accept—is a task which now faces a post-Brexit government. It will not be easy.”

Finally, Bogdanor considered whether Brexit was an aberration or whether it reveals weaknesses in the European Union. It was an aberration in the sense that no other countries in the Union will follow suit, because to them, the Union represents the emergence from dictatorship and acceptance of democracy. The central problem of the European Union, though, Bogdanor argued, is that it has been unable to represent the people of Europe effectively. “It needs to transform itself from a technocratic organization, into a political one.” “Representation” implies that decisions are made by the majority, and the European Union needs more effective representation and an effective party system. Bogdanor wondered how to make representation more effective in the European Union. The first option is to do something like American system, where there is a separation of powers but a unifying element through the direct election of a president. The pitfall of this system is that it also requires “a unified and homogeneous community.” The second option for accountability is through a parliamentary method, through a European parliament.  “But what is the common government?,” Bogdanor asked, “is it the commission? If it is, it has to become a partisan body, a body of left or right.” The body could be replaced by the people. In theory though, there could be left or right coalitions, which would turn it into something other than a mutual body dedicated to a common European good. The real decision-making body of the European Union is not the coalition, but the council consisting of the government of the member states, which cannot be accountable to the European parliament. “So, European parliament cannot replace one executive with another, or one set of policies with another, nor can European voters… the council remains outside the area of political challenge,” Bogdanor said. He concluded that Europe could only be unified either on the basis of “concentric circles” where a small group of countries get together (as President Macron wants) or on a “confederal basis.” On either of those bases, Bogdanor speculated, “it might be possible for Britain to regain an honored place in Europe.” 

The lecture was sponsored by George Herbert Walker, Jr. Lecture Fund at Yale University, and the MacMillan Center’s European Studies Council and Program in European Union Studies.

Written by Lily Weisberg.


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