Understanding Brexit – Facts, Law, Policy, and Principle

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On March 29, Britain will exit the European Union. That simple statement raises a seemingly endless swath of questions. Brexit itself has spawned a new vocabulary – from “backstop” to “Withdrawal Agreement” – that make it hard merely to follow the story. Behind that vocabulary is a range of important legal questions – from Britain’s status if the Withdrawal Agreement is adopted to what its position will be if it exits without a deal. Of course, Brexit also raises important questions of trade, investment, and migration policy – and much more – for both Britain and the United States. And finally, there is the fundamental point that Britain’s exit from the EU is a reassertion of its national sovereignty and therefore of its ability, and right, to govern itself – a principle of vital importance to the United States. Brexit will open new opportunities for both Britain and the U.S. By understanding its legalities and complexities, the U.S. legal profession will improve its grasp of both those opportunities and the principle behind them.


Dr. Ted R. Bromund, Senior Research Fellow in Anglo-American Relations, The Heritage Foundation

Ben Perry, Partner, Sullivan & Cromwell LLP

Moderator: Tom Rogan, Commentary Writer, Washington Examiner


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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International and National Security Law Practice Group, was recorded on Tuesday, March 12, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     


Wesley Hodges:  Welcome to the Federalist Society’s teleforum conference call. This afternoon’s topic is "Understanding Brexit-Facts, Law, Policy, and Principle." My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at the Federalist Society.


As always, please note that all expressions of opinion are those of the experts on today’s call.


Today, we are very fortunate to have with us several experts on this topic. And starting us today will be Dr. Ted R. Bromund, who is a Senior Research Fellow in Anglo-American Relations at The Heritage Foundation.


Also with us is Mr. Ben Perry, who is a partner at Sullivan & Cromwell, based in the London office. And our moderator today is Tom Rogan, who is a commentary writer at the Washington Examiner. After our speakers give their remarks, we will move to an audience Q&A, so please keep in mind what questions you have for this subject or for one or a couple of our speakers in particular. Thank you very much for sharing with us. Tom, I turn the microphone to you.


Tom Rogan:  Well, ladies and gentlemen, thank you for tuning into for an obviously very important and time relevant issue which is the British Parliament’s decision that will take place, a vote, this evening, 7:00 p.m. British time, 3:00 p.m. Eastern Time, on whether to authorize, to approve Theresa May, the prime minister’s, Brexit agreement with the European Union or to reject that agreement. This agreement was rejected in January, so this is the second vote. And the odds for Theresa May don’t look particularly good. The ramifications of that are, obviously, immense for a number of reasons that our panelists will get into.


But really, the basic underpinning here is that today is, I would suggest and the panelists are welcome to disagree with me if they do, the most pivotal day since the actual referendum vote itself. And the consequences, I think, we can now get into. So I’ll invite Ted to start us off with his thoughts on what this -- what he expects from today’s vote and any other concerns that he thinks are relevant to the broader issue here.


Dr. Ted R. Bromund:  Thanks very much, Tom. I certainly agree that today’s vote is a pivotal moment. Although, I would probably suggest that the votes that are scheduled to come tomorrow and the following day on the question of the acceptability of the no-deal Brexit, as it’s called, and the question of postponing the exit, which is scheduled to happen on March 29, may be even more pivotal than the vote which is scheduled for later this afternoon our time. But I thought it might be useful for listeners on the call to step back just a little bit and review how we got to the pivotal moment that we are at today because Brexit has been a very long and complicated story. It’s fairly common in analyses of Brexit to argue that the Brexit referendum vote in 2016 was the result of an outburst of populism.


Brexit is sometimes classed with the election of President Trump, with other developments in continental European politics, as part of a broader, and is usually argued, disconcerting trend of rising populism in the West. I disagree completely with this, and I don’t think people who advance this line of argument are looking very seriously at the history. For background, I should say that I wrote my doctoral dissertation on Britain’s first application to the European economic community, as it then was, covering roughly the late ‘50s into the early 1960s. And, although we don’t have time to review all of that tangled history, I would simply suggest that until the 1990s, the mid-1990s, Europe was continually an important, sometimes a first class, but always an important issue in British politics and that Britain has been talking and thinking and discussing this issue for a very long time, indeed.


Britain was a somewhat belated member of the EEC, as it then was, for a variety of reasons, some of them interest based, others, ideological. But when it finally did join, it participated more or less as other European nations did, defending its own interests and advancing its own ideas. But nonetheless, membership of the EEC, and then later the EU, remained controversial in British politics until you got to the mid-1990s. Then, all of a sudden, the level of controversy stepped up a notch. If you look at the long run, big number surveys of how the EU was perceived in the U.K., U.K. opinion really hasn’t changed, fundamentally, since the mid-1990s, which I find fairly remarkable. But nonetheless, it’s true. Basically, the EU has been about 50/50 to win any referendum in the U.K. at any point from 1996 to 2016.


So I find it hard to accept that the outcome of the referendum in 2016 was the result of an outburst of populism. It was, in fact, the outcome of a very long brewing storm, going back at least to the 1950s, and perhaps as far back as the Glorious Revolution of 1689, if you want to drag that into it. Nonetheless, the late 1990s and 2000s do see significant changes in British opinion, deriving from a number of controversies between the EU and the U.K. during those years. There was the now forgotten, but still very pivotal, mad cow, or BSE, episode in the mid to late 1990s, which fundamentally shifted British opinion. There was the rise of very high levels of migration from Europe into the U.K. in the late ‘90s and the 2000s under the Blair and Brown governments, Labor governments. And then, there was the Euro crisis, the lowering episode which began after the American financial crisis and which continues, albeit at a very much lower level, even today.


All three of those things created a very high level of demand in British politics for a referendum. A referendum was repeatedly promised by politicians of all parties, and, thanks to the Conservatives' unexpected success in the 2015 general election under then Prime Minister David Cameron, the British system eventually found that it was in the position where it had to actually give the referendum that it had been repeatedly promised. Well, we know the results of that referendum: a relatively narrow, but nonetheless decisive victory, 52 percent to 48 percent, for Brexit, for leaving the European Union. The question that was put to voters was not complex. It was not trickily worded. It was simply leave the EU or remain in the EU. And the voters, in the largest democratic act in British history, chose leave the EU. Now, since then, we’ve passed through a few phases.


First, there was the period after the Brexit referendum up to the general election of June 2017. This period sees the triggering of Article 50, which creates the deadline that we’re coming up to at the end of this month, March 29. Then, there was the election, held on June 8, 2017. This was called by Prime Minister Theresa May in an effort to improve her stable, but relatively narrow, majority. In practice, calling the election turned out to be a cataclysmic mistake which fundamentally changed the course of Brexit and Brexit legislation thereafter because, although May remained Prime Minister, the election results were very close to being an actual defeat for the Conservatives. And they remain in power only with the support of Northern Ireland’s DUP.


Nonetheless, Prime Minister May remained in office, and, paradoxically, the outcome of this election gave her a very strong position, personally and politically, within the party, even though the election went very badly. I would say that, if I could put it this way, that since the election her greatest strength has been her weakness. That is that eliminating her as Prime Minister would require replacing her with someone else, and there is no contender on the horizon who is satisfactory to enough Conservative MPs to make them viable. And the poor condition of the Conservative Party in the country makes holding another election seem like a bad option to virtually every Conservative MP.


Therefore, although there has been much rumbling about and one outright effort to replace Prime Minister May, she has remained in office, not out of love from the Conservative Party, but out of recognition to the fact there appears to be no safer or better option immediately available.


After the election, we moved fairly rapidly into the third phase of Brexit, which began last summer, the summer of 2018, when a significant number of Brexiteers quit the British cabinet, and Prime Minister May put forward the plan that the Commons will be voting on later today as very slightly amended. This plan calls, in essence, for the EU and the U.K. to enter a limited customs union of goods, in theory, goods only. Although, many people, myself included, would argue it would have a much wider application. And the purported purpose of this plan is to resolve the question of how you handle the border between Ireland proper and Northern Ireland.


As Tom, you mentioned, this plan was voted down by a majority of 230 back in January. And although the Prime Minister secured a few very minor changes late last night, it seems clear, according to the opinion of Attorney General Geoffrey Cox issued today, that the plan has not changed in any fundamental legal sense. And therefore, I agree with you that it is quite likely to be voted down today by a very significant majority, less than 230, but almost certainly enough to completely sink the May plan. That then puts us on to the question of the votes of tomorrow and the next day, which deal with the question of no-deal and the possibility of delaying Brexit by an unspecified amount of time. But that belongs in the future, so I think I should probably end my section of commentary and move on to Ben.


Tom Rogan:  Well, Ted, thank you very much for that informative and eloquent explanation of how we got to where we are now and what it means going forward. Ben, why don’t you take us through, perhaps with your specialization, some of the legal side of this, what you anticipate from the various scenarios over the next couple of days?


Ben Perry:  Thank you, Tom, and thank you, Ted, also. And I agree with Ted’s observation that today’s vote can probably be -- it’s likely that it will be described as the most pivotal date until tomorrow or Thursday. So just to pick up on -- to add to Ted’s thoughts on a couple of explanations from a legal perspective of how we got to the point of having a vote in Parliament today when the results of the referendum had been declared in 2016 and all the main political parties had actually promised to respect and enact that result. There are two or three things worth mentioning which are important as to how, from a legal perspective, how we got to where we are today.


The first one of those is what’s been described as the Miller case. It was a case brought by a lady, Gina Miller, who was funded through crowdfunding, and that case, which went -- which was initially decided at the High Court in London, then was appealed to the Supreme Court. The outcome of that case was that the serving of the Article 50 notice, Article 50 refers to the Lisbon Treaty, which is the latest incarnation of the EU treaty, was that the serving of that notice required an act of Parliament before it could be served by the U.K. on the EU. I’ll come back to Article 50 quite a bit because that’s the article of the treaty that has set out the procedure by which the U.K. leaves the EU. So when the Supreme Court’s judgement in the case was confirmed earlier in 2017, what happened then was that the government did bring legislation before Parliament to approve the giving of the Article 50 notice. And that legislation was, in fact, approved by an overwhelming majority.


The next step was that the Article 50 notice was duly served by the U.K., and it was served on the 29th of March, 2017. And under the terms of Article 50, its effect -- and this remains the position today until Parliament legislated otherwise, and I’ll come back to that in a moment. But essentially, under the terms of the Lisbon Treaty, that Article 50 notice would take effect two years after the date on which it was served. Therefore, we talk about March the 29th at 11:00 p.m. U.K. time, midnight Central European time, as being the time when, absent anything else happening -- and again, I’ll come over to what else might happen in the next couple of weeks. But absent anything else happening, that is when the withdrawal takes effect as a matter of EU law. That was the first step as to why -- how we got to where we are.


It was also -- it was relevant in another way that directly affects where we stand today. And that’s because, as part of the debate in Parliament when the legislation proving the giving of the Article 50 notice was proposed, the government promised to Parliament that there would be a vote on the final withdrawal agreement once that had been negotiated with the EU. At that point in time, which was early 2017, essentially, the EU’s position understandably had been that it wasn’t going to start the negotiations on the withdrawal until the effective notice of the withdrawal had been served.


So when one looks back on this situation, and particularly with regard to planning around the possibility of a no-deal Brexit, what one has to remember that there was a great imperative at the time to serve the notice and to start so that the actual substantive negotiations on the withdrawal agreements should start.


So we are where we are today, and we have the vote that’s happening today is so pivotal because actually, without that withdrawal agreement being approved by Parliament, it cannot, as a matter of English law, actually enter into force. So we are dealing with a requirement that’s been passed into English law -- into U.K. law through that Parliamentary -- through the act. It’s called the European Union Withdrawal Act 2018, and that’s the act that actually, from a legal perspective, performs the necessary function of removing the U.K. from the EU. And it repeals the piece of legislation called the European Communities Act 1972, by which, as Ted was describing -- by which the U.K. signed up for the EU in the first place.


And so we are -- we sit here today sort of approximately less than three hours before the vote. The vote that’s taking place is what’s quite often described as having to be a meaningful vote. And essentially, that was a phrase that entered into sort of common usage around the time in December 2017 when, due to amendments that were being proposed by members of the Conservative Party who were in favor of remaining, particularly a former attorney general by the name of Dominic Grieve, essentially, the process that was put in place then was for a meaningful vote.


You might well ask what does that mean? And essentially, what it means is that as the withdrawal agreement has been put forward into Parliament and is being -- the government is trying to enact that into law, members of Parliament are able to propose amendments to that legislation. Initially, it had been -- it was the government’s proposal that MPs would only be able to vote on the withdrawal agreement on a straight yes or no basis. So we are here today with the, as Tom described, the second meaningful vote. The first meaningful vote in January -- at the end of January actually resulted in a record defeat for the government. And the process of where we’ve come to today, as was described by Ted, involved some late breaking news last night of the issue of a further two documents supplementing the withdrawal agreement and the accompanying political declaration that had first been published in November.


And the intense focus of the recent discussion between the U.K. and EU has been around the -- what’s known as the Irish backstop. And essentially, what is referred to as the backstop is actually, legally, it’s part of the withdrawal agreement. It’s described as, in legal terms, as a protocol, and essentially, it comes into effect on the first of January 2021, if by that point the U.K. and EU have not concluded a future trade agreement between themselves. But it’s that part of the withdrawal agreement that’s proved by far the most politically contentious issue in the agreement itself. So that takes us to where we are today.


As to the second question, which is where might we be tomorrow or Thursday, there’s already been a -- there was an indicative process set out by the government a couple of weeks ago during part of the debate in Parliament where, essentially, if the withdrawal agreement does not pass -- is not passed by the House of Commons this evening, which at the moment does not appear likely, but you never know, then there will be potentially two further votes held on the following two days, i.e. tomorrow and Thursday. And tomorrow’s vote will be a vote on whether Parliament approves -- specifically would approve the leaving the EU with no deal. And then if that vote were not passed, then on Thursday there would be a vote on whether or not to extend the period of Article 50. Now, that is not a one way process. It’s not something that the U.K. can do unilaterally because, going back to the terms of Article 50 itself, what that specifies is if there’s to be an extension it has to be agreed not just by the member state which is given the notice but also by all of the other 27 member states of the EU.


So at this point, whilst the question of an extension to the process has been lurking in the background, it hasn’t yet come out into the open. Although, it may depending on the outcomes of those votes. It may well do over the next two days. One of the things that’s been sort of particularly open is what the duration of that extension might be. And there were reports a couple of weeks ago coming out of Brussels that actually the EU leadership favored a longer period of extension. And one of the reasons why that’s important is it’s worth bearing in mind that under the withdrawal agreement as it’s currently -- as it’s configured in the agreement that’s being voted on by Parliament this evening, there would be quite a lengthy transitional period so that the U.K.’s leaving the EU would take effect on the 29th of March.


But essentially, it would remain within the EU single market for almost all purposes until December 31, 2020. Therefore, from a legal perspective, the greater number of changes that would take effect wouldn’t be until first of January, 2021. First of January, 2021, is also the date for the backstop to come in. So that’s potentially the EU might seek to get agreement on a longer period of extension. Conversely, there’s been obviously some domestic political pressure in the U.K. for any extension to be potentially as short as possible. In actual fact, it may be that that extension could be, in effect, not much more than a few weeks or a couple of months.


One of the reasons for that is actually there are European parliamentary elections scheduled to take place in June of this year. And if the U.K. had not actually left as a member of the EU by that point, then it would be obliged to take part -- both it and the EU would be obliged to have the U.K. take part in those elections in the next members of the European Parliament into office for another term.


So right now, in terms of the next steps, we obviously won’t know what they are until the outcome of the votes today and, most likely, tomorrow and Thursday. And then at that point -- and there may also be other amendments that are put into place by other people within Parliament. What seems sort of likely is that, actually, at that point -- unless, again, there are other announcements or proposals by the government, we could have a situation where effectively Parliament, through the passing of one or more votes, has effectively taken control in whole or in part of the next steps.


The final point I would mention in terms of where we are now is actually there have been a number of legal cases about the Article 50 process. One other that is also potentially significant and, I think, is referred to by people who talk about a danger of Brexit not happening if the withdrawal agreement is not passed. And the reason why that is mentioned is because there was a judgement by the European Court of Justice a few months ago which held that, although the question of revocation of an Article 50 notice was not specifically addressed in the treaty itself, under EU law, a member state, in this case the U.K. which had served an Article 50 notice, was entitled to revoke that Article 50 notice unilaterally at any time prior to the withdrawal actually taking effect.


So there is a -- in terms of the possibilities, there really are four possibilities open still at the moment. First is that the withdrawal agreement passes. Secondly is that there’s an extension. The third is that three is a no-deal Brexit on March 29, or possibly a later date. And the fourth is that actually there’s a revocation of the Article 50 notice, potentially followed by another referendum and/or a general election.


Tom Rogan:  Great. Well, Ben, thank you very much for that very in depth briefing in terms of the legal ramifications, which I think is something that a lot of the listeners will appreciate because it’s something that, frankly, requires that British sort of specialist legal knowledge. But, Ted, I think before we go to Q&A, which we’ll do in a couple of minutes from callers, why don’t you respond to anything that you disagreed with that Ben mentioned or that you think is particularly interesting and you want to expand on.


Dr. Ted R. Bromund:  I would simply, as far as the votes over the next three days go, I would simply point out that it is possible, although it’s not probable, but it is possible that the Commons will reject all three of the options that are presented to it. For example, it’s possible, indeed, it’s likely, that Prime Minister May’s deal be rejected by a fairly considerable margin. The Commons has already voted back in January, admittedly in a non-binding vote, but nonetheless has rejected a no-deal Brexit by a margin of eight votes. That’s fairly narrow, but nonetheless, there was a majority against it in the Commons last time. It’s also possible that the Commons would reject delaying Brexit. So it’s conceivable that you would have three negative votes in a row. In that case, it seems to me very likely, although absolutely not assured, that the net result would be a no-deal Brexit, regardless of the fact that the Commons would have voted against it, because that is currently what is on the books as law.


Britain’s EU membership expires on March 29 unless the Commons does something else. So the Commons can vote against a no-deal exit, but unless it positively approves another option, it’s likely to get a no-deal Brexit anyhow. So that’s an interesting question. I agree entirely with what Ben has said about the impact of the European elections. This is going to make delaying for anything more than  a couple of months, basically until the end of June, extremely awkward. It’s not just an electoral question, however. There is also a budgetary question. The European Parliament ultimately has to vote on the EU’s budget, to which the U.K. is a substantial net contributor.


So it’s not simply a question of will there or will there not be U.K. MEPs. If the U.K. is technically still in the EU when there are EU elections and thus U.K. MEPs are seated, those MEPs will be voting on a budget which Britain, still planning to exit the European Union, will not be part of. And that makes the whole process even more awkward and difficult.


I think one thing that we might consider a subject to the interest of callers is what the U.S. has at stake in this entire process. And very quickly, I would suggest that there are a couple things that really matter to the U.S. First, narrowly, there’s the question of trade, and by trade, I don’t simple mean visible goods. I mean primarily financial services, although, of course, also physical goods. Both the U.K. government and especially the U.S. government have been outspoken about their desire to reach a U.S. / U.K. free-trade area agreement, an FTA.


This is something Britain cannot legally do on its own as long as it is inside the European Union, which controls British trade policy. States inside the EU cannot make unilateral trade agreements unless they are EU agreements as a whole. So that is certainly a significant development. Even more importantly than that, however, from the U.S. perspective, a U.K. exit from the European Union would strike a considerable blow against the EU regulatory model, which the EU has been very, very energetic in pushing internationally. It would give the world another player, in the United Kingdom, that isn’t always bound to agree with the United States but isn’t always bound to agree with the European Union either. So it would increase the leverage against the EU international regulatory agenda, and that is likely to be a very good thing from the point of view of the United States, not because the British would always vote for us, but because the British would be at least interested in what we would have to say. So that would be an important gain. Indeed, a lot of experts think that gain is more significant than the gain that could come from a trade agreement, per se.


And then third and finally, since this is The Federalist Society, I should point out that what Britain has done by voting to leave the European Union is to say that it wishes to restore its sovereignty as a fully independent nation-state. And since I personally view sovereignty as absolutely fundamental to the American political system, I am always delighted when another nation in the world decides that it wishes to be fully sovereign and, of course, democratic, which Britain unquestionably is, because that strikes a blow against the European Union idea that the sovereignty of nation-states should be slowly eroded and subjected to international or, in the case of the EU, really super-national or trans-national bodies in which states are represented through various direct and indirect means but which are not fully democratic, accountable bodies in the way that we would think of the American government as being.


I think that’s a vitally important principle. And as significant as all the economic and trade and financial matters are, we should never lose sight of the fact that this is ultimately a political decision for national independence. And I find it very hard to see how anyone who takes the American legal and constitutional system seriously cannot ultimately regard that as a good thing when other democratic nations take that step as well.


Tom Rogan:  Fantastic. Thank you very much for that, Ted, and I believe we have about 15 minutes of time for Q&A, callers. So if that is correct, then we can hopefully hear from the first questioner.


Wesley Hodges:  Absolutely. Thank you so much, Tom. It looks like we do have several questions, two, three questions in the queue. First caller, you are up.


Mitchell Keeter (sp):  Hi, Mitchell Keeter calling from Los Angeles. You discussed how there’s an order. First, there’s the current proposal, then the possibility of a no-deal, and then the possibility of an extension. Do you think that the order of these votes might play any role in the outcome? In other words, if a different question was the first one presented, if that might lead to a certain kind of strategic voting given that different people have a different first choice, second choice, third choice, if that would affect how the overall outcome might go if it were in a different order?


Dr. Ted R. Bromund:  Well, I’ll take a stab at that. Ben may wish to weigh in on that as well. I think that’s a really interesting question and one that very few people, in fact no one to my knowledge, has really considered publicly. I don’t think that the order in which the votes are being taken is obviously gimmicked to produce a certain outcome. And I rather suspect that, if you could remove the constraints of party loyalty, there would probably be a significant majority in the Commons for Brexit on terms other than those that Theresa May has managed to negotiate.


It remains a bit of a mystery to me, for example, why the British and the EU went down this road of a customs union, partial customs union, as opposed to a free trade area between the U.K. and the EU, which would, to my mind, have resolved a lot of the difficulties that are now vexing everyone. But I don’t think that the order of the votes is going to play a significant outcome because I think in the minds of quite a few MPs these questions, that is May, no-deal, or postpone, occur roughly in that kind of order. It’s the logical order for people to consider the questions in. But Ben, you may well have a different perspective?


Ben Perry:  I don’t have a particularly different perspective. I agree with you that actually that is probably given the way things have evolved. And ultimately, it was a proposal sort of made by the government that was accepted a couple of weeks ago. I agree that is likely the logical order in which to consider the various questions. What I wouldn’t discount, however, is the possibility of the unexpected sometime in the next couple of days. I would just sort of add that things over here are moving pretty fast and there may well be something unexpected that happens.


Wesley Hodges:  Second caller, you are up.


Patricia Paoletta:  Thank you. This is Patricia Paoletta from Harris, Wiltshire, and Grannis. I wanted to ask the speakers what impact on the U.K. votes are the various political movements in France, maybe Holland, Italy, for possible exiting of the EU having on the U.K. deliberations, particularly in terms of timing? Because one could say that Brussels has some interest in managing the outcome with the U.K. in a way that won’t stir up more exiting interest from those other countries.


Tom Rogan:  Ben, why don’t you take that one.


Ben Perry:  Yeah. I think in terms of sort of direct influence on the votes in Parliament or the timing of the parliamentary procedure, I would say that there probably is not a direct correlation. And that’s essentially because, for the reasons that I outlined, the process that we’re currently following and getting towards the end of is the process that was set out in Article 50 of the treaty. I think you can certainly argue that there’s a direct influence on the negotiating position taken by the EU and that that has found its way into the contents of the withdrawal agreement itself.


And I think EU politicians have been sort of very clear all along that one of their objectives in the negotiations is obviously to get their negotiating in a bilateral negotiation from their perspective. And that partly involved an element of deterrent within that. So I think, certainly, you can see it -- you can argue that it’s there in the contents of the deal. In terms of the process that we’re currently going through, I don’t think it has a direct impact.


Wesley Hodges:  Next caller, you are up.


Juscelino Colares:  Juscelino Colares, Case Western Reserve University, calling from Cleveland. I think to Mr. Bromund’s point about discussion on sovereignty and how that should not be mixed or that is being not necessarily well-thought, mixing it with the issue of nationalism. We are seeing in the United States a robust discussion on the collapse of delegated power and discussion on the President’s authority on national security, of the President’s authority on national emergencies, the President's authority on trade matters. And we are seeing that there is this clamor in the United States right now, at least in Congress, for Congress to reassert some of its powers back.


Obviously, Brexit looms as a potential -- as a strong signal from an important ally that the people, the citizens are concerned about the political exercise of power under their names, rather than by a bureaucratic class. My question to you, then, is is there as robust a debate right now in England that goes beyond the Brexit -- the way people are going to vote, but that goes into the question of actually centering the focus of power and the decisions of U.K. citizens on Parliament rather than in Brussels? And how strong are these voices right now in the U.K.?


Tom Rogan:  Ben, why don’t you jump on that one, as well, and then Ted can come in if he wants to.


Ben Perry:  Yeah. I think the -- in terms of the underlying issues from the debate, sovereignty and sovereignty of Parliament has obviously been an ongoing theme. And actually, one would probably say that the situation that we’re finding ourselves in now will potentially be the ultimate sovereignty of Parliament. I think it’s obviously a complicated question. And again, sort of to pick up on the question of the Irish border, which has probably become the lightening conductor in the whole process, it’s been the issue that had ignited a lot of opposition, both from certain political parties in Northern Ireland so that a party called the Democratic Unionists who are in favor of continuing the union of Northern Ireland with the United Kingdom and who, as a result of the 2017 election, are effectively the underpinning of the support for Theresa May’s government at the moment.


So again, I’m not sure I sort of see sort of the emergence of a wider trend along the lines that were suggested by the questioner. I think what’s happened is sort of particular issues have caught light at moments during the process, and the Irish backstop question has really been the one that’s the most significant from that.


Dr. Ted R. Bromund:  Can I weigh in on that, if you don’t mind?


Ben Perry:  Yeah.


Dr. Ted R. Bromund:  That’s a very interesting question. Thanks very much for asking it. I guess I would give maybe something in emphasis from Ben’s comments on this. First, we should always remember that the U.K. as a parliamentary system is, in many respects, the reverse system of the United States. We have a system of separation of powers and, of course, federalism. A parliamentary system, by definition, cannot really have separated powers because the executive is the executive because it controls a majority in the legislature. So it doesn’t really make sense in some respects to talk about the Commons taking powers back as a form of struggle against the executive. Now, I mean, of course, you could go back to 1689 or, indeed, the English Civil War and discuss those events in that context. But when people today talk about parliamentary sovereignty, they’re not really talking about sovereignty of Parliament versus the executive.


It’s the sovereignty of the Queen in Parliament, if I could use a sort of old-fashioned term. That is it’s Parliament's ability to make laws for the United Kingdom through the normal mechanism that Parliament ultimately creates the executive through the parliamentary majority. So I’m always cautious about U.S. / U.K. comparisons.


That said, there are interesting developments in the U.K. First, as Ben has said and I totally agree with him, the basic sort of framing device for the Brexit issue, and indeed for U.K. relations with Europe all the way back, has always been fundamentally about sovereignty, about who governs. And here, I think the British tradition of parliamentary government literally, I’m serious, going as far back as the Glorious Revolution, is what is defining from the British point of view.


But there are also sort of interesting efforts in the U.K. to try to increase what we would call federalism. It’s not quite the right term in the U.K., but devolution to Scotland, devolution to Wales, arguments that U.K. local government is too dependent on the central government for funding, which in my eyes is almost certainly true, the return of a mayor in London, elected mayors in other cities, so on and so forth. So these questions are very much alive in the U.K., but we can’t see them through the framework that we see them in the United States, that is with the executive and the legislature set against each other by constitutional design. Because in the U.K., it simply doesn’t work that way.


Wesley Hodges:  Caller, your question is up.


Patricia Paoletta:  So it’s Patricia Paoletta again. Sorry for double dipping. Since the original vote -- or maybe it wasn’t the original vote. Since the vote in January with the withdrawal agreement failed, has Theresa May’s government been strenuously working on trying to get another deal, or did they just think that they could run up the clock and have another deal that’s strengthened Brussel’s stand?


Dr. Ted R. Bromund:  I’m happy to take a stab at that, but Ben will want to weigh in on that, too. The May government has made efforts. I’m not sure if they’re strenuous or very strenuous or less than strenuous, but they have made efforts to try to get a new deal. It’s pretty clear that there is a majority in the House of Commons, a narrow majority, but a majority nonetheless for Brexit with a time limited Irish backstop, so quote, in other words, something that the EU cannot use to trap the U.K. forever into de facto EU customs union membership but without the U.K. actually having any votes in the European parliament. So almost the worst of all possible worlds. But fundamentally, the EU is not particularly interested in changing the deal that it’s already negotiated with the Prime Minister. There are a couple reasons for this.


First, negotiating anything with the EU, with its 27 other member states, is always incredibly complicated. So having come to an agreement among themselves, they’re rarely willing to change it very much or, indeed, at all. Second and probably more fundamentally, the deal that they negotiated with Prime Minister May is a very good deal from the EU point of view because it secures a significant EU -- U.K. contribution to the EU budget, amounting to about £39 billion, a very significant amount of money. It gets the U.K. out of voting in the European parliament, no U.K. MEPs going forward, but it locks the U.K. into a very significant part of the EU’s rule making apparatus. So it gives the EU control over much of U.K. policy without any U.K. input. It’s common to mention the goods/customs union that the May deal was based on as though it is just a goods/customs union.


Well, most modern goods today are not just goods. They are also goods and services combined. Think about your iPhone for example, or your Android phone. It’s both a good and a service. Furthermore, if you look at how the single market and the customs union have worked in the past, there is very little you can’t get to when you say that one country within the EU and the other must have the same rules on goods. Does that mean, for example, that U.K. industry has to pay the same taxes as everyone in the EU? Does it mean they have to have the same labor laws as everyone in the EU? Does it mean they have to have the same health and safety laws as everyone else in the EU? It certainly means they have to have the same trade policy. Find me a country around the world that is willing to do a trade deal with the British simply on services and not on goods. Even the Americans and the Australians, two very well inclined nations, are not particularly interested in that kind of trade deal.


So the May deal gets the EU a vast amount, and all it really does for the British, even in theory, is to address the Irish border question. As a matter of practice, it doesn’t even do that very effectively, as shown by the DUP’s lack of interest in the May deal. So it’s not all that surprising that the May government’s efforts to negotiate a new deal essentially resulted in the same old deal all over again with a little bit of rhetorical padding on top, which as Attorney General Cox has pointed out, makes no legal difference to the question of when the backstop can be terminated.


Tom Rogan:  Ben, would you like to comment on that?


Ben Perry:  No, I would again just add that -- sort of to reiterate a point I made earlier, that really the follow up discussions that there have been over recent weeks that culminated in the new documents that were issued last night were focused on, again, pretty solely on the narrow question of the Ireland protocol. And one might say that they were designed with a specific objective in mind, which was to sort of try and insure that the U.K. Attorney General would deliver different advice to that which he’d delivered before about the possibility of the U.K. being able to exit the backstop.


He published his advice this morning, and in essence and without going into detail, he concluded that it mitigated some of the risks. He also concluded that essentially, if the U.K. and EU were unable to reach that future trade agreement, then the backstop would come into operation on the first of January 2021. And absent bad faith or a failure to use best endeavors on the part of the EU in reaching of that agreement, the U.K. wouldn’t be able to unilaterally exit from the backstop under international law.


Tom Rogan:  Ben, let me ask you and then, Ted, if you would be willing to comment on this as well, how do you judge the prospect in the coming days of either a new general election being called or a challenge to Theresa May from within the Conservative Party?


Ben Perry:  I think you picked up on what I was referring to earlier when I talked about expecting the unexpected. At this point—and my office sort of sits two or three miles from Westminster, so I’m not in the middle of the Westminster bubble and activity—I wouldn’t ascribe a specific possibility to either. But again, things are fast moving, and when momentum gathers behind something, it can happen very quickly. So those are precisely the two things that I was alluding to earlier when I cautioned about not to dismiss the possibility of the unexpected.


Tom Rogan:  Ted, your thoughts?


Dr. Ted R. Bromund:  Yeah. I think the odds of those outcomes are not zero, but they’re fairly low. The challenge to the Prime Minister from within the Conservative Party, we’ve already had one of those, and it failed. So the Conservative Party is stuck with the Prime Minister at least for a little while longer, unless she decides to quit because I see no likelihood right now that a new challenge would have any different outcome than the former challenge did. So that is unlikely, although not impossible. An election, even more difficult. If you remember back to 2017, the general election was called at the end of March and held in early June. That is about as fast as things can possibly be done in this day and age. And it seems unlikely that the U.K. would have an election in July and August, simply for summer holiday reasons. I can’t remember the last time the U.K. had a July or August general election, which really means you’re looking at an election called within the next ten days. Or it’s postponed to September or October. So I think the odds there are fairly low, too.


Furthermore, there is the fundamental fact that the U.K. has a fixed term Parliament now, very unwisely from my point of view, but never mind. So you have to get essentially everyone on the Conservative and DUP benches agreeing that it’s the right thing for the government to do to call an election. Well, most of them fear that they’re going to lose their seats or that the Conservatives would lose a majority in the Commons. And they might well be right about that, and they would lose it to Jeremy Corbyn. So almost regardless, I think the odds of an election in the next few months are low. Although, they are not zero.


You could say the same thing about a second referendum. It takes you six months to a year to get it organized. Yeah. We passed the point of no return on a second referendum some months ago. So I’m afraid the U.K. and the EU have got no option but to push forward on the current path, which is the May deal, no deal, or, hypothetically, some other deal.


Tom Rogan:  Well, on that point, Ted, I think we can end it there. But thank you very much to you, and, of course, thank you very much to Ben for taking some time from his day in London. And thank you to everyone who called in with those excellent questions. I think a very good event with a lot of detail. So on that note, I think we can conclude, but thank you.


Wesley Hodges:  Well, thank you so much, Tom, Ted, and Ben. On behalf of the Federalist Society, I would like to thank our experts for the benefit of their valuable time and expertise. We welcome all feedback by email at info@fedsoc.org. Thank you all for joining. The call is now adjourned.


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