Bored of Brexit

I’m bored of Brexit. I think most other people probably are too. It is of course the biggest task facing the government for the next few years and how it happens or doesn’t happen could have huge implications for us all. But that doesn’t stop it being quite dull. 

(apologies to Allan Ahlberg and Fritz Wegner for mucking around with this picture)

Brexit is dull for the same reasons that prior to last year’s referendum the EU was dull enough that most people didn’t really know or care very much about what being in the EU meant in any detail. Which is why so much of the debate was about simple elements like “taking control of immigration“, getting back the old midnight blue hardback passports we used to have, or whether there were other things we might or would do with the money we currently sent to the EU. That’s not to say that there weren’t better and more informed reasons for leaving or that even those things weren’t important enough to justify a vote to leave. They were certainly more compelling than arguments to stay based on things like the importance of the Single Market and Customs Union which to the majority of people might as well have been in Sanskrit for all the obvious impact they had on their lives as they are lived. 

This doesn’t mean that things like the UK’s trading relationship with the EU are unimportant. They’re incredibly important. But just as the way in which the Single Market operates, the framework of laws and regulations, the institutions involved in determining and enforcing those laws and so on were of little interest to most people prior to the referendum, I think that the immense and intricate detail of what will follow will be too. The vast majority of people are, I believe, not ultra keen on either extreme of the leave/remain debate. They’d think it wrong if the government decided to ignore the referendum and just stay in the EU and they’d think it wrong if the government ended up leaving on obviously bad terms just for the sake of leaving. Quite where the line should be drawn in between those extremes? Most don’t really know. We can have preferences on individual issues but as an overall position? Put that in the box marked “meh”. This is probably a better explanation for why the UK economy hasn’t collapsed (and indeed has grown more than forecast) than “well that’s because Brexit hasn’t happened yet, just wait and see when it does”.  It is only those at the extremes who have a clear view and for them either Brexit will always be too “Hard” or too “Soft”, depending on whether they were rampant Remainers or Leavers. 

I think where we’ll end up, boringly, is with something in between which will have those at the extremes still unhappy. We’ll be out of the EU, so those who believe that we shouldn’t under any circumstances leave will consider any form of leaving to be terrible. We will however not just rip everything up so it’ll be too soft for the most foam-speckled Ukippers.

I think it is almost certain that despite the wailing and gnashing of teeth about the rights of EU citizens currently in the UK to stay (and about Brits abroad in the EU not to be repatriated) the status quo will be preserved. It is also quite likely that whatever restrictions are placed on future movement between the UK and EU they won’t be so onerous as to prevent those who are genuinely moving to work or study from being able to do so, even if it might not be quite as simple as waving a burgundy passport. If anything, I think economically there could be benefits for much of the rest of the EU if there isn’t completely free movement of people with the UK – once outside the EU, ending free movement would restrict the UK’s ability to have a competitive advantage in attracting workers from elsewhere, driving up wages and costs in poorer countries and reducing them in the UK. That’s why even with “control” over immigration, the UK probably wouldn’t want to shut its borders regardless. 

As long as we can see that the government has the power to control immigration and is using it to stop obviously harmful people coming, the actual numbers won’t matter so much any more because people will assume that the numbers coming and going are controlled. The perception will be different even if the substance is not very. In the absence of lots of new states acceding to the EU there isn’t another bow wave of EU migrants like in 2004 to come in any case. 

In other areas, I don’t think there will be any real appetite to “punish” the UK by making life hard in trade, just as I don’t think this government, or any of the ones we’ve had since 1979 would want to depart from the idea of minimising trade barriers between the UK and the rest of the world. I suspect that the Great Repeal Bill which will enshrine existing UK implementations of EU law in UK law post-Brexit will end up with a very leisurely pace of actual repeal and replacement and often strong reasons in the future to shadow what is happening at an EU level on uncontentious topics. Relatively few implementations of EU regulations by means of the power to implement using Statutory Instruments were ever put to a vote and this reflects how uninteresting they were. Their replacements will not magically become more interesting in post-Brexit Britain or Westminster. Similarly, while formally remaining in the Customs Union will probably not happen, does anybody here or in the EU really want to start putting up tariff barriers and working out what they might be? It would be easier not to bother rather than to generate some new tariffs the effects of which would not be predictably to the benefit of either side.

One of the reasons why the EU is slow at negotiating trade deals is that they need to be approved by all Member States – so putting in a tariff on say, new cars, which might benefit German car manufacturers in competition against UK ones might also inadvertently benefit German manufacturers against French ones who would suddenly find that their domestic market had less competitive constraint coming from imports from the UK and the Germans were better placed to exploit it. Nobody knows and I think, however much the Commission might want to preserve the purity of the EU and dissuade anyone from breaking ranks, the Member States will reasonably quickly conclude that it’s a game not worth playing. Similarly, in Financial Services, could anyone predict with any certainty that damaging the City of London would benefit Paris and Frankfurt equally rather than make one or other become dominant? Leaving things be would be more likely to appeal to EU national leaders than giving London a “punishment beating” and finding that it ended up harming their own country.

Now, I agree that these also sound like good reasons not to bother with changing anything so why bother leaving the EU at all? Personally I took the view that most if not all of what the EU provides can be done by the UK alone and so from an abstract perspective we don’t absolutely need to be in it. At the same time, there weren’t so many things about the EU which upset me so much that I wanted to leave in order to achieve them and that there were lots of things which I’d really rather the UK never did which they would be able to do if we did. But that is where I think there is meaning in “Brexit means Brexit”. Leaving the EU will allow for changes in the stuff that people do care about and it will make little difference in the end to the boring and specialist stuff that they never busied themselves with before and have probably already glazed over reading in the previous couple of paragraphs. It is the EU’s failure that it didn’t understand how little it needed to change to have kept the support of the UK’s population and so gave Cameron not even that. 

I’d have been more concerned about Brexit had it been pushed by a government which was likely to want to make big changes to those “boring” bits and to depart from the broadly economically liberal underpinnings of the EU to become much more protectionist and interventionist. But, thankfully, we don’t look like we’re going to get Jeremy Corbyn and his ilk anywhere near power and his concept of a “different, social Europe” is almost certainly likely to be even less appealing to the rest of the EU than any plausible actual post-Brexit Europe. If we think that getting to have relatively free access to the EU Single Market while placing restrictions on free movement of people is a difficult task then doing so while restricting free movement of capital and goods and freedom of establishment instead would be positively Herculean. 

So, while it will probably be a massive balls ache in practice for the government and civil service to negotiate the implementation of Brexit, and as an EU lawyer, one that made me shudder enough to vote for remain, it is a boring process balls ache rather than one that will make much difference to the vast majority of people. Which is why Brexit is itself boring and in particular, why those making ultra-technical legal arguments about things like the revocability of notification under Article 50 TFEU are beyond boring to anyone who is not either professionally interested or intent at all costs to prevent it from happening.