Wednesday, 12 July 2017

What does the Euratom mess tell us about Brexit?

Readers of the blog will have been aware for some time of something which has only hit the headlines this week. It is that amongst the implications of Brexit are some very serious issues to do with nuclear safety, nuclear waste and nuclear medicine. These arise because the government’s hard Brexit plan entails leaving the European Atomic Energy Community (Euratom) and this in turn arises because although Euratom is not part of the EU it falls within the jurisdiction of the ECJ. Theresa May has made leaving all forms of ECJ jurisdiction as red line, non-negotiable and defining plank of Brexit and so leaving Euratom was included in both the Article 50 letter and also the parliamentary Act which authorised her to send that letter. This now seems likely to lead to a parliamentary rebellion amongst Tory MPs against, at least, this aspect of Brexit.

All this points up very sharply a whole series of very significant questions about Brexit in general:

·       It is an issue of great complexity and great importance, but it did not feature at all in the Referendum campaign. Can anyone say that those who voted for Brexit knew that they were voting for something that would, amongst other things, impact on the availability of cancer treatments? How many other aspects of Brexit is this true of? What, then, of the idea that Brexit is ‘the will of the people’?

·       Even Dominic Cummings, the Campaign Director of Vote Leave, has criticised leaving Euratom as “unacceptable bullshit”. But don’t leave campaigners have to take responsibility and be held to account for the practical implications of their ‘take back control’ slogan from which exiting Euratom directly flows?

·       It exemplifies the complete lack of planning for Brexit, shown also by the absence of UK position papers for the Brexit negotiations compared with detailed papers from the EU. So did the government understand what they were doing by deciding to leave Euratom? They have admitted that they did not conduct a formal impact assessment. How many other aspects of Brexit is this true of? Where are the assessments of, for example, a ‘no deal’ Brexit? Or of the different ways of enacting Brexit? Or of the government’s preferred way as expressed in the White Paper?

·       Why, relatedly, is the government still trying to dismiss the detailed, practical issues arising from Brexit as ‘Project Fear’, in the Euratom case as “scaremongering”? Are they, as widely reported, doing the same for all of the practicalities around trade, security, the Ireland border etc.? Can competent government proceed on an evidence-free basis, relying only on slogans and platitudes?

·       What does Euratom tell us about what appears to be the central tenet of the government’s White Paper, which is to create new bi-lateral shadow institutions to re-regulate what were formerly EU institutions? What will this cost? Is it possible? And, even if it is possible, what’s the point of Brexit anyway?

·       Did parliament understand what it voted for in approving the Article 50 Bill? The Euratom exit was clearly identified in that Bill, but now MPs are not happy with it. If they can revisit Euratom, then why not the other features of Act, such as single market membership or even the entirety of Brexit?

·       Relatedly, if parliament does decide that the UK wants to stay in Euratom and, therefore, to breach the red line of ECJ jurisdiction, then why not breach that red line for any number of other things (aviation, medicines, patents) up to and including the single market?

·       But even if the UK parliament were to decide it did not want to leave Euratom, what status does that have within the Brexit negotiations? Exiting Euratom was in the Article 50 notification letter sent to the EU, so does it any longer matter what the UK says? And if the UK can take back one part of that letter than does it not mean that the whole of it can be withdrawn (as discussed by Cambridge University Professor of EU Law Kenneth Armstrong)?

Or, to pose these questions at the most generic level, if there are very good reasons for avoiding the chaos, damage, cost, and complexity of leaving Euratom then do these not apply a fortiori to leaving the EU?

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