50 years after accession of Ireland and the UK to the EEC and seven years after the disastrous Brexit referendum, Ireland still sits pretty in the EU, but the UK and its Constitution have been called into possibly fatal doubt, especially as regards their integrative capacity, or continuing ability to bind distinct political classes and the nations of the Union to one another. Writing in early 2023, amidst the ruins of a Brexit reality, if not the end of the Brexit delusion, this short commentary foresees – possibly foolishly – a radical future of independent nations within a loose ‘Confederation of the Isles’, wherein Ireland might share some (symbolic) competences with Scotland, England and Wales, enabling a peaceful a prosperous coexistence within the North-western European archipelago.
‘Nowhere else to go’, a sad tale of goalless secession
We have barely begun to grasp the reasons why Brexit became a possibility, why it has unravelled at a speed that has surprised the most ardent of its critics, or to begin to accept its inherent inevitabilities such as the fundamental reshaping of the polities of the British Isles. Even for those of us with skin in the game, or an expertise in European integration processes and their impacts upon national polities, Brexit has precipitated much surprise and not a little learning, about the intensity of (class and national) schism within the British polity or the absurd fragilities of the British Constitution. Given the wholly misplaced dedication of the self-styled ‘buccaneering Brexiteers’ to the notion that the UK has ‘somewhere else to go’, or that Brexit would secure a glorious future for Great Britain within a resurgent ‘Empire 2.0’, it has also underlined how central post-colonial analysis of interchange between the periphery and the core of empire must be to our modern self-understandings of nationhood and sovereignty. At the same time, however, it continues to reveal the paucity of our general understandings of political economy, or the relevance of markets to the construction of society and politics as a whole.
The Court of Justice case of Cassis de Dijon from the distant year of 1979 mattered then and matters still today. Running in tandem with, but vitally distinct from the then Zeitenwende, or nascent turn to free market thinking, Cassis marked the point at which traditional, international-law-based trade regimes shifted on their axes. This was the day on which the international system of courts began to give prominence to the idea of an autonomous market, or to disentangle the dense webs of societal norms and institutions that gave a distinct cultural-historical identity to each national political economy, that grounded the market in national society and politics. Vitally, however, it was also the moment at which international economic law, firstly within the EEC framework, began the long, seemingly unlikely trek back to the ‘re-embedding’ of Europeanising and internationalising markets within their own set of post-national norms. The nod to Karl Polayni and his theory of the socially embedded economy is wholly intentional: markets cannot and do not exist outside cultural-historical-legal norms. The sweeping away of German regulations determining acceptably high levels of alcohol for liqueurs as a barrier to European trade might be dismissed as an amusing legal happening. Nevertheless, with its recognition that non-discriminatory market rules also act as non-tariff-barriers to trade (NTBs) and its contemporaneous acceptance of the legitimacy of member state social regulation, the European Court of Justice had not simply been caught up in deregulatory enthusiasms. It had instead also been implicated, as per Polayni’s writings, within ‘counter-movements’, or necessary processes of the re-socialisation of the emerging European market; a process that has culminated in the establishment of famous regulatory institutions, such as European (regulatory) agencies.
It was perhaps an inability to understand the full import of Cassis, together with the current, far too ready acceptance of theologies worshipping the imagined autonomy of markets from society that explain the readiness of a British Prime Minister such as Theresa May to expose the UK to the admittedly serious, but not limitless damage of hard Brexit calculated within the blinkered parameters of (purely economic) international trade models. By the same token however, this blind-spot also sheds light on the ongoing failure of academic analysis properly to frame the Brexit process as an act of secession, with all of its catastrophic, innumerable and unforeseen reverberations around the whole of the British political economy and society: broken supply chains, collapse of SMEs and FDI, loss of the UK motor industry and skilled working class jobs, as well as heightened post-Covid labour market shortages compared to neighbouring economies.
The phrase ‘integration as disintegration’ was coined back in the 1990s, in order to shed light on the economically ‘rationalising’ impacts of European integration, or the ability of (European) law to unveil hidden protectionism and irrationalities within member state economies through application of a legal proportionality principle, and its simultaneous demand that national and European social regulation must be refashioned in order to facilitate supranational market integration (ie., must be made market-friendly). What those of us who helped develop the concept underestimated at the time, however, was the degree to which legally-instituted disintegration processes have been followed by post-national legal re-embedding that positively re-affirms the dense web of broader societal relations within which markets function. It is this mechanism, for example, the process of regulatory convergence of labour, social and environmental standards in the EU, that explains the far deeper historical-cultural damage currently being played out within the UK: Brexit equals secession, is far more than simple trade disaggregation, entailing instead a comprehensive unravelling of our existing frameworks of market opportunity and socio-economic security. Equally, it is the process of re-embedding which explains relative (to the rest of the UK) success of the Northern Irish economy and resilience of the Irish economy, all post-Brexit political uncertainties notwithstanding. Seen from within a socially embedded European market, not only does the secession of the UK political economy give rise to enhanced economic prospects for its neighbours, but the entrepreneurial (European or Protocol-based) rights and regulatory frameworks within which those opportunities might be realised are already firmly in place.
Most bitterly however, for those Brexit buccaneers who truly believe that destruction is opportunity, that Empire 2.0 is where Brexit ends glorious, the process of re-embedding of economies is also a global one, with Cassis consequences being inexorably transmitted to an international level, most significantly, within a web of new generation Free Trade Agreements wherein the overcoming of NTBs is pursued by means of negotiation of regulatory convergence. Certainly, successive UK Governments are seeking or have signed (inadequate) trade agreements with the ‘the White Dominions’ of their imperial dreams. Yet, where Canada, New Zealand and Australia, all have good geopolitical reason to unite with the EU in the geo-political effort to secure the global dominance of shared environmental, labour and social standards, the room for UK regulatory divergence remains limited indeed. Verily, there is nowhere left for the UK to go.
Who is lying to whom? Constitutional disintegration and resettlement
The Twittersphere often complains that arch-Brexiter Jacob Rees-Mogg lied to the Queen, misrepresenting the grounds for Parliamentary suspension, or ‘prorogation’ in September 2019; a polemical view maybe, but one confirmed by the UK Supreme Court. In the view of this author however, Twitter’s obsession only detracts from greater, more unpalatable lies found at the heart of the UK Constitution. First, the uncomfortable reality that the UK Monarchy proved far less adept at defending constituted democratic process against the blindingly obvious deceptions of power-seeking populists than did an Italian President in the same fateful Summer. But second, recalling Harold Laski, then British Labour Party Chair, and his prescient critique of the 1945 constitutional moment, or establishment of the British welfare state, the continuing lack of shared, concretised value in the UK Constitution, the inbuilt vulnerability of its majoritarian politics to electoral coup d’état, and its consequent inability ever to overcome class schism, let alone pay integrative attention to excluded others within or beyond its sovereign borders.
On this reading, QEII’s signature adherence to the principle of ‘apolitical’ monarchy is readily explained in all of its preposterous constitutional inadequacy: the institutional apex of the UK Constitution can never intervene to defend it, no matter how egregious the assault, since to do so would necessarily be an act of social-cultural partiality. More impactful yet, Laski’s complaint that Clement Atlee’s post-war Labour Government had merely enacted its own power-grabbing coup upon the British polity within the principle of parliamentary sovereignty, leaving its integrative social reforms forever exposed to subsequent reassertions of counter-class-interest, must now surely ring very loud in the ears of ‘Lexiters’, those left-leaning Brexiters, who believed that their more or less legitimate campaign against the real or perceived neo-liberal failings of the EU as an international economic organisation should be pursued within the unreformed UK polity rather than directly at EU level.
Laski’s observation, however, should also now be taken very seriously by a UK Labour Party leadership consistently polling over 45% and set, under first past the post rules to achieve a landslide victory in the next election. The schisms revealed and heightened within populist Brexit manipulations include but extend far beyond those of class conflict, traditionally conceived. Above all, intensified post-colonial divisions determine that that Labour would be foolish to conceive of itself ruling in accordance with a principle of ‘business as usual’, or the usually counterproductive business of pursuit of class interest within a sovereign UK parliament. Schismatic problems are myriad: the manipulations by right-leaning populists of the Commonwealth loyalties of UK citizens of all colours, the underlying racism and xenophobia of those on the left who affirm false dichotomies established between the interests of disadvantaged classes in declining industrial regions and those of impoverished metropolitan communities, including many migrant groups. They also, however, include the inevitable final rift, the overdue unravelling of empire within the North-West-European archipelago.
In February 2023 it is striking how many commentators equate the unexpected resignation of Nicola Sturgeon as Scottish First Minister with the end of nationalist aspirations in Scotland, or the death of ‘independence sentiment’ in Great Britain itself. This is mistaken. Certainly, there is no clear path to independence for Wales or Scotland within an absolutist Westminster sovereignty which makes mockery of the term ‘Union’. But there is a (murky) path for NI to continue to participate in the success of the embedded Irish/European political economy either within the NI Protocol, or within a unification vote under the Belfast/Good Friday Agreement (GFA). Vitally, nether the Protocol nor the GFA operate within the parameters of geographically delineated sovereignty. Arguably, it is here in the grey zones of pragmatic, constitutionally-relevant treaty-making that it is not simply conceivable but wholly inevitable that Wales and Scotland, consistently insulted and abused by Brexit-Westminster, will pursue their post-colonial identities, and emulate the enhanced influence exerted by Ireland on the European and global stage. For the sake of the sanity of English voters, one can only hope that a future Labour Government can escape the Brexit delusion, can begin explicitly to address and to resolve eternal division, as well as the damage done to democracy and the Constitution by populist Brexit machinations. Nevertheless, even where it cannot find the requisite political courage or skill, the far greater devolution of powers to the periphery already inherent in Labour Party programmes designed (tellingly by Gordon Brown) to save the Union, will see Westminster sovereignty fade away in fact if not in constitutional ink.
A European sting in the tail
For this author, an ideal post-colonial settlement of the United Kingdom and Northern Ireland would be a loose and differentiated confederal one, a super Benelux perhaps, wherein Ireland might share some (symbolic) functional competences with the independent nations of the ‘Confederation of the Isles’ in an embedded European political economy (EEA), or the EU proper. A primary advantage of such an arrangement would be full-scale reproduction of the Protocol/GFA’s existing constructive confusion of sovereignties and individual loyalties, for example in their establishment of a schism-solving paradigm wherein citizens are free to profess their own allegiances (to the Confederation, to the Crown, to Europe, to the Nation, or to all at once). A secondary consideration is also important: the embedded post-national political economy is still prone to the charge that it is undemocratic, irredeemably technocratic. Even at this time of renewed Zeitenwende (back) to economic steering and redistributive economic-social agendas, it remains in need of legitimating ideals. Can we find these legitimating ideals in more refined but emotionally grounded complexes of constitutional differentiation, in constitutional differentiation? Can we also transfer these ideals to the supranational level?