The UK is essentially a third country. This is not just because we are now more than two years from the effective date of Brexit, being 31 January 2020. Rather, as this post will propound, there have been developments in the handling of Brexit in the UK, which indicate a distinct shift towards the absorption of Brexit into the more traditional operation of the UK constitution. Consequently, it appears that Brexit is being constitutionalised.
The adoption of Brexit is discernible through a tacit, yet noticeable, change in attitude which is manifesting itself in what can reasonably be described as a change in tone and language in the UK. The binary terms of ‘leave’ and ‘remain’ or ‘in / out’, which had divisive connotations, and even visions of ‘soft Brexit’ or ‘hard Brexit’, are in the process of being replaced by a different vocabulary. Political and legal discussion is now focusing on what the impact of Brexit is, and what it will be in the future. The change in language demotes a concurrent change in attitude. Brexit is developing in the UK by being internalised into constitutional orthodoxy.
This change is accompanied by an organisational shift at the heart of Whitehall. The resignation of the Right Hon. the Lord David Frost from his role as Minister of State and Chief Negotiator of Task Force Europe in December 2021 meant that Brexit was transferred to the Ministerial remit of the Foreign Secretary. The constitutional importance of this transfer from the view of the UK is twofold.
First, Task Force Europe, like other incarnations of the Departmental constructions before it, such as the ‘Department for Exiting the European Union’, was specifically established to conduct talks with the EU in relation to the terms of the UK’s withdrawal. Task Force Europe also operated from within the Cabinet Office. From an historical perspective, these were constitutionally unique and unusual arrangements, which were arguably temporary expedients set up to deal with the relatively immediate task of post-referendum withdrawal. In contrast, there is nothing temporary or unusual about the Ministerial role of the Foreign Secretary operating within the Foreign, Commonwealth and Development Office (Foreign Office). It is one of the most significant, well established, Departments of State and the Foreign Secretary one of the top three roles in the Cabinet, the other two being the Prime Minister and the Chancellor of the Exchequer. The absorption of Brexit into the general remit of the Foreign Secretary operating within the Foreign Office has a distinct sense of constitutional permanence.
Second, this Departmental and Ministerial transfer constitutionalises the position of the UK, not as a withdrawing Member State, or as a recently exited Member State, but rather as a third country. The Foreign Office has the important constitutional role of developing and managing the UK’s long-term foreign policy. To fulfil this role, it adopts a policy which strategizes the UK’s relationship with every State and territory outside of the its own territorial boundary. It is therefore apparent from the view of the UK that externally it perceives the EU as a distinct external territory, as it does with other States and regions, and internally the UK sees itself as a separate third country. This is more than just politics and pragmatics. The UK will now have a foreign policy towards the EU, rather than a withdrawal policy. Brexit is essentially being constitutionalised in the UK.
This has important implications for sovereignty, because it seems no longer to be couched in terms of an agenda to ‘take back control’, but instead appears to have shifted towards a focus on territorial integrity. Whilst a concentration on territorial integrity may invoke issues connected to the physical border between Northern Ireland and the Republic of Ireland, which is very important, however, as previously commented in this blog, a new modern sovereignty is emerging. In the context of constitutionalising Brexit this means not just physical but also regulatory, financial and security sovereignty. This constitutionalising process within the UK of the shift to a permanent institutional arrangement with a corresponding attitudinal focus on the long-term impact of Brexit also provokes choices about what sovereignty should look like long-term.
Will we see a divergent future in the relationship between the UK and the EU? This may depend on the future direction the EU takes as much as any choice made by the UK Government and Parliament. For instance, NextGenerationEU is not only significant in terms of the extent of the financial value of the initiative but also because it demonstrates the EU’s willingness to borrow money on the financial markets. As the legal construction facilitating NextGenerationEU was approved and enacted after the UK ceased to be a Member State one can only speculate, but it is not unreasonable to assume, that the UK would have objected to the EU proceeding is this direction if it had been a Member State at the time. This is also true of any potential integration proposals on energy or defence and security, which may be the outcome of the conflict between Russia and Ukraine. Whilst, again, one can only speculate, it is not unreasonable to assume that if the EU now chooses to move towards federalism with borrowing and defence capability that the UK would object to moving in this direction.
We may see a concurrent, yet unintentional, divergence as a consequence of the constitutionalisation of Brexit from the UK perspective. There are many EU legal regulatory instruments which are forthcoming and in relation to which the UK is yet to decide whether or not it intends to align or diverge. Indecision on the part of the UK will mean automatic divergence from the EU as the EU proceeds to integrate whilst the UK decides. As the UK sees itself as a more detached third country focusing on the development of its new sovereignty whilst Brexit constitutionalises, it may not be as proactive in responding to the progression of the future direction of the EU, especially if the EU pursues a speedier path to integration. Either way, divergence would naturally ensue.