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Professor Michael Dougan: Thank you very much Janet for the introduction. Thank you very much so many people coming to listen.
I have been a professor here at the university since 2004 and my specialism is European constitutional law. I look at the EU institutions, I look at relations between the EU and its member states, specifically the UK. The single market and free movement of person in particular.
So pretty much [laughs] everything which is discussed in this debate is what I have spent my entire professional life working on.
For the most part I have participated in this debate as an independent academic expert. I have acted as an advisor to the Cabinet Office. I have given evidence to various parliamentary committees. I have been acting as a consultant to the BBC for its coverage of the legal issues in this debate as well.
But I will put my cards on the table, partly because it is true and partly because I feel increasingly that I have been forced to, that I am obviously going to vote remain. For one very positive reason also one perhaps more negative reason.
The positive reason is that my 20 odd years of professional experience working on the EU has left my very clearly, very firmly of the opinion that it is in the national interest to remain what we are now, which is one of the leading powers within one of the most important international organizations on the planet.
The more negative reason, I have to say, is one which is directly linked also to my work, which I have just watched with increasing dismay as this referendum debate has unfolded. I have to say although the remain campaign have not exactly covered themselves in glory at points with their use of dodgy statistics, I think the leave campaign has degenerated in to dishonesty really on an industrial scale. There is no other way to put it, on an industrial scale.
What I have found particularly difficult, a bit like Janet, I have dared to say some of these things are not true, some of these things are not actually accurate and I found myself being sorted being treated with personal insults about my credibility and my competence and so on.
I was trying to think of a good analogy and I think the analogy probably is for someone who works in the field like I do, is probably the equivalent of an evolutionary biologist listening to a bunch of creationists tell the public the creation theory is right and evolution is completely wrong. It really is that bad for someone who actually is a professional researcher in the field. And yet it is working.
What I propose to do now is to talk a little bit about the current situation and then talk about a few of the things which will happen in the event of a vote to leave the EU.
The current situation I suppose is best described by talking about some of the key themes which have dominated the public debate. In case any of you think I am being completely biased and one sided, which pretty much everything that I am about to say is what we teach the undergraduate law students in their first year and second year, it is entirely evidence based, in a way very basic constitutional UK and EU law. It is amazing that the national debate has been so distorted in the way that it has.
So let us start with a couple of myths. The first is the myth of sovereignty, there is no doubt whatsoever that the United Kingdom is a sovereign state under international law. There is no doubt whatsoever that the parliament in Westminster is the supreme law making authority in this country.
Conversely there is no doubt whatsoever that the EU is not a sovereign entity, far from being a sovereign state, it is not even a sovereign entity, it has only those powers which has been given under the EU treaties. If the UK courts sometimes give priority to EU law in the event of a conflict with domestic law, it is purely because our parliament has expressly instructed them to do so in our own legislation.
So it the UK a sovereign state? Yes.
Is parliament our supreme legislative authority? Yes.
So why do we keep hearing about sovereignty in this debate. The fact is that sovereignty is not really an issue in the debate, it is about power and influence and sovereignty is being used as a shorthand to talk about power and influence.
The fact is that membership of any international organization, whether it is the UN, NATO, the EU, any international organization involves a tradeoff. You agree to certain obligations in return for the opportunity to exercise greater influence in practice.
And conversely if you decide to leave or stand away from an international organization, you are basically saying, “I am prepared to accept that I am not going to influence certain things to keep my theoretical power more intact”.
The same is true for the EU. Membership of the EU obviously entails certain obligations on the part of the member states. But it offers the member states the opportunity to exercise much greater collective problem solving powers as well as to magnify their own individual influence both within Europe and in the world stage.
I think that is the main criteria against which we have to judge both our existing membership of the EU and any alternative memberships or relationships which are mooted in the event of a vote to leave. What is the balance between the opportunity for power and influence versus the nature of the obligations that we take on board?
The second idea which has become pervasive in this debate, is that somehow this is a debate about us and them. The EU is somebody else and that we are the sort of pathetic little victims of Brussels, as if this country were incapable of looking after itself. And to an EU lawyer, to anyone who works in the field, this is just absolutely bizarre.
We refer to the big three in the field. The UK, France and Germany. Because between them the UK France and Germany provide the EU with its political, its economic, its diplomatic leadership. Indeed, virtually nothing happens in the EU without the big three being in control of it.
The UK to put it simply has enormous influence within the EU. It sets agendas, it negotiates alliance, it builds and brokers compromises, and despite the fact that majority voting is now the normal rule within the council of ministers, remember the EU is not run by the unelected eurocrats of the commission that we hear all the time. It is actually run by the 28 governments working together in the counsel together with the European Parliament.
Despite majority voting being the normal rule within the counsel, in practice around 90% of EU decisions are still taken by consensus. In other words, the member states negotiate until everyone feels basically happy with a decision. It could not be otherwise, the EU is the creation of its member states, it has to serve their basic national interests and so it does so through a process of compromise and negotiation.
So the EU is not someone else, it is not something that happens to us, we are major players, leading players, within the European Union.
Now the third thing that really strikes me about this debate is we keep being told that there is no evidence, there are no facts, there is nothing in which we the public can make our minds up on so it is purely a matter of instinct and gut feeling.
Again that just is not true. There is an enormous amount of objective detailed hard scientifically tested evidence about the impact of EU membership on the UK.
I will just give what is now the reference point example, the balance of competences review. Which was undertaken by the government in 2012 and 2014.
Now the balance of competences review was the largest ever exercise undertaken within Europe of how a member state is affected by its EU membership. It was also one of the largest research exercises ever undertaken by the British Civil Service in its entire history. It examined every major area of EU activity, hard and soft policy making, gathering evidence from virtually every major sectoral stake holder and participant as well as huge numbers of the public. About their experience of, the views of, the benefits, the disadvantages, of EU membership.
It dealt with over 2,300 pieces of written evidence, it conducted several hundred specialist stakeholder as well as general public meetings and it published 32 very large final reports. Enough to fill an entire library shelf in fact. Covering absolutely everything from the single market to immigration, from trade to asylum, energy and so on.
The results of this report were absolutely overwhelmingly, what is the problem. Every major stakeholder across every major sector of our economy in society does not see a problem with our EU membership, on the contrary they think that it brings real added value to national policy making.
Now of course there are particular measures which are the subject of dispute. The working time directive draws the criticism of a lot of business organizations but conversely it has the full and enthusiastic support of most trade unions. So there are individual measures which are contestable depending on your own point of view.
But the overwhelming evidence was that basically the relationship between the UK and the EU is satisfactory. So there is plenty of evidence in fact, hard detailed evidence to show that EU membership is not destroying the country like we are constantly told it is.
Now is any of that to say that the EU is perfect? Of course it not, the EU is not perfect, just as any complex organization is not perfect. It is the job of people like me to criticize the EU, to analyze its policies, to look at its competences, to ensure it is doing what it has promised it would do in the interests of its member states.
But that is simply not the same as questioning its very existence or ignoring the evidence and making things up as we go along.
So on the one hand I think it is very fair to say that there are many positive benefits to this country of being and remaining what we are today and plenty of evidence to demonstrate it.
On the other hand, I am afraid I do find that many of the arguments on the other side of this debate are at worst dishonest and at best sometimes simply mistaken.
Now that is the situation as it currently stands. What about the situation if we leave?
Here I have to say that the main answer is nobody has a clue. Nobody has a clue and if anybody claims that they have some detailed or precise understanding of anything that will happen really post leaving the EU then they are probably very seriously deluded.
Having said that, there are basic constitutional principles of the UK, of the EU, of international law, of international trade, which help us identify certain parameters within which the future might unfold. They don’t give as many answers, but they help at least identify some parameters.
So despite the basic uncertainty I am going to run through four particular challenges which will occur in the event of a vote to leave. By the way this is something that we are currently working on within the law school and in a slightly bizarre way we are preparing two articles. One in the event of a vote to remain, which will analyze the UK deal from February in a lot of detail. One in the event of a vote to leave, which will analyze the process of withdrawal and the implications of withdrawal. Depending on what happens in the referendum one of those articles will be scrapped and the other one will be published. It is not terrible efficient academic work but it is very necessary.
So four challenges.
First of all, internally. There will have to be a comprehensive review of the UK legal system because for 40 years UK law has evolved in combination with, under the influence of, EU law and the two are virtually impossible to disentangle. This will be an enormous technical undertaking, it will keep people like me in business for a very long time, but in a way the most important point I suppose is that it will have to be done very very quickly and it will not be done through parliament. It is simply impossible to imagine a situation in which parliament can actually undertake a comprehensive review of the entire UK legal system.
So there is pretty strong consensus that the only way that this can be done is through an enormous delegation of power from parliament to the government and the government will effectively take an entire range of policy decisions about whole fields of UK law.
Regardless of what else you might think of him, positive or negative, Jeremy Corbyn was completely right when he said that the entire UK legal system will be subject to a very fast sharp shock review and the whole swaves of legislation, be it on workers or consumers or the environment may well be deeply affected.
The second main consequence is the constitutional make-up of the UK. We know that there is a strong possibility of a second Scottish referendum in the event of a vote to leave and I am far from alone in worrying about the consequences particularly from Northern Ireland, where I come from originally, since the lack, the effect of absence of the border in practice between Northern Ireland and Southern Ireland is a key part of the peace process in that part of the country.
So internally we are not quite sure what will happen but we know it will be a very thorough and potentially far reaching constitutional change within the UK.
Externally the biggest task will be reformulating our relations with the rest of the EU. Now we have heard a lot in the media about how we have two years to reach a new settlement with the EU, that is not actually correct at all and again for someone like me it is almost surreal to listen to the media completely given an entirely distorted view of how the world actually works.
The treaty said that you have two years within which to make your divorce settlement. But the divorce settlement is completely separate from the framework agreement for your future relations with the EU. It is completely separate legally, procedurally, institutionally.
So what we will have is a period of two years to actually reach our divorce, the actual severance of ties between the UK and the EU. The main question which will arise is, there are lots of technical questions, the main question is what do we do with the three million or so EU nationals currently living, working, studying in the UK. What do they do with the two million or so UK nationals currently living, working, studying in the rest of the EU.
That will be the main point of contention, what will be the residency rights, what will be their employment rights, their social security rights, and so on.
By contrast the agreement for future relations between the UK and the EU is a separate and distinct agreement, a separate and distinct challenge. The overwhelming consensus is that these things do not take two years to negotiate, the rough guide that we are all talking about in the field is around 10 years. Around 10 years to negotiate a comprehensive framework agreement for the future.
That is based on all previous experience of these types of agreements. In fact, most of them have taken a lot longer than that. The Swiss signed their first framework agreement with the EU back in 1972 and they are still negotiating, they have now done well over 100 bilateral treaties to deal with particular issues as they go along, it is hardly comprehensive.
In any case this agreement will have to set out our new relationship with the EU and I suppose the issue which is really dominated the entire debate is the issue of trade relations. Again here is someone who actually works on the single market, virtually every week of my life, I find the nature of this debate, on both sides, surprisingly poorly informed.
The main thing that really strikes you is how the politicians throw around terms like market access, free trade, tariffs, barriers, as if they were all one and the same thing, as if they were all really quite easy. If it were that easy then people like me would not have to do PhD’s in them and spend a lot of time working on them.
I will just give a potted summary of what we currently have and what the options are for the future.
The single market is by far and away, and we have no even close competitor, the most advanced trade agreement on the planet. It goes much further, much deeper, than any other form of international trade agreement.
The reason it does so is because it sets out to tackle “the holy grail” of international trade. No one really cares about tariffs, tariffs are easy. You either have taxes or you abolish them, that is easy. The “holy grail” of international trade is how you deal with regulatory barriers.
In other words, I make my goods in Britain, I might manufacture computers in the UK. But before I can sell my computers in another country, that other country says, “Well you have not used the same components that our legislation requires. You have not used the right environmentally friendly packaging. You have not actually provided the right consumer guarantees to go with it”.
It is not protectionist, it is not trying to exclude foreign goods from their market, it is just that national laws are different. Each country has different rules to regulate goods and services and effectively that compartmentalizes the national economies, not because anyone is deliberately trying to exclude foreign goods or services, countries just do things differently.
If I am a manufacturer I have to set up different production lines to manufacture different sorts of goods for different national markets.
The whole point of the single market is to overcome those regulatory barriers. As long as I manufacture my goods or provide my services in one-member state, I can provide them and sell them in every other member state without further regulation.
And that is the unique achievement of the single market. Nothing else on the planet compares to it.
Now if we as the UK wanted to retain that level of market integration with the single market in the event of a vote to leave, there is no doubt whatsoever that we would have to go for the Norwegian option as it is called. In other words, we become members of the single market without being members of the EU.
It is a thoroughly unattractive deal, it has to be said, on any analysis, and even the Norwegian government in its review of its own version of the balance of competences review, admitted it is a thoroughly unattractive deal. Because it basically means that you have to do everything the EU says but you don’t have any influence over the formulation of the rules and you still have to pay a whopping membership fee for the privilege of belonging to the single market.
Now the deal is thoroughly unattractive, I suspect we would not want to have it anyway but it is very unlikely the EU would even offer it to us. Primarily because it is absolutely conditional on accepting the full free movement of persons as an integral part of the single market.
And since the leave campaign have already indicated that they do not see full free movement of persons as being politically acceptable after this referendum, if they win it, that means that we are basically saying goodbye single market.
Now that leaves two other possibilities. The first is that we do what the Swiss have done or the Mexicans or the South Koreans, we have a new much narrower, much shallower, trade relationship based on a bilateral agreement with the EU.
Or instead we simply forget about trying to have a new trade relationship with the EU other than through the ordinary rules of the WTO. In other words, the sort of global baseline standard which governs international trade between the vast majority of countries on the planet.
In either scenario, if we decide to kiss goodbye to the single market, in either scenario, then UK businesses, manufacturers, service providers, will simply have to accept that they no longer have these automatic pass porting right within the single market.
The trade environment will be much less favorable. And if there is a reason why the great majority of economists are against Brexit, it is for that reason that everyone agrees that the trade environment, the regulatory environment, will become significantly less favorable.
Very finally, quickly, my final implication of leaving concerns relations with the rest of the world other than the EU. It is completely beyond doubt, even though I keep hearing at public debates that it is not, it completely beyond doubt that leaving the EU will also terminate all of the UK’s current trade agreements with third countries outside Europe.
Because those agreements were negotiated with and through the EU, they will terminate if we leave. That basically means that the UK will be back to square one in its trade relations with a whole host of other countries, other than through the WTO.
Now again I am sort of [laughs] gob smacked as a researcher in this field that the way that we are told that we will be free, we will be free to just trade with whoever we please, we will just enter in to these new treaties with all these other countries. Just like that.
Logistically it is difficult to imagine that the UK even has the internal diplomatic and civil service capacity to negotiate more than one or two agreements at a time, let alone 60 or 70. But in a way the reason a lot of people are worried about this who work in the field are for two reasons.
First of all, the UK’s trade policy so far has been very very clever in a very sort of entertaining way. We actually have not that much to offer in terms of trade relations because we are a very open economy already. We basically buy goods and services with whoever we please because we are a very open economy.
What the UK does as a trade strategy is we bargain away access to other people’s markets, the Italians, the Spanish, the Portuguese, the Romanians, so as to win trade agreements with the rest of the world.
That is the UK’s basic trade strategy. We bargain away the rest of the single market to get access to other people’s markets. If we are not part of the single market anymore we actually don’t have an enormous amount of bargain power.
The second reason is, is that other countries have already made it very clear that they have no real interest in trying to reach a bilateral agreement with the UK until they know what our trading relationship will be with the EU and they know what their trading relationship will be with the EU.
Because it might well be that if we but still retain access to the single market, then we are still a very attractive proposition for other countries to have a trade deal with. Whereas if we are not, the terms on which they might be prepared to negotiate a deal are simply not as advantageous.
So it is inevitable that other countries will say, “We want to know what your situation is before we reach an agreement with you about our economy” and that is the official position of America, China, India, to say the least.
So how do I sum up? I am going to vote remain, but as a researcher as a legal scientist, my credibility relies on the fact that I have to know my subject area, I have to know the evidence, I have to analyze the evidence in a rigorous and credible way.
And my analysis of that evidence is very clear. The evidence is that our current relationship with the EU is valuable, it is largely positive. The EU is not free of problems, but it is much easier to do a good job on the inside than it is to do a good job on the outside.
Now I have deliberately avoided sort of going in to some of the details of other issues that have been quite prominent in this debate, issues like immigration, maybe some issues which are much more pertinent to us as a university for example that the impact of leaving on the higher education sector. They might well come up in questions but even if they don’t, do feel free to contact me by email or just to arrange to meet up. I am quite happy to have a chat about any particular issues or concerns that you might have.
In the meantime, thank you very much for your attention. If only our students were quite so attentive in lectures.
WATCH Professor Michael Dougan’s video considering the claims and counter claims of both the Leave and Remain EU Referendum campaigns on YouTube or below:
Professor Dougan is an employee of the University of Liverpool. He does not work for, undertake paid consultancy for, or receive funding from any company or organisation that would benefit from this article/post.
Award of Jean Monnet Chair – Professor Michael Dougan:
“In 2006, the University of Liverpool was awarded a Jean Monnet Chair – a form of EU grant – consisting of €36,000. Under the terms of the grant, part of the money was spent on a major academic conference, the outputs from which were published by the usual process of international peer review. The remaining funds were spent on general teaching costs. The Jean Monnet award itself has long since been closed. However, for so long as I remain an employee of the University of Liverpool, I am entitled to continue referring to the 2006 award among my own professional distinctions. I am very happy and proud to do so, since such awards carry considerable prestige within my academic discipline.”
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