The Regulatory Policy Institute Research Group

Conservative philosophy, then and now

The Xmas and New Year break is a good time to catch up on background reading that has sat around on a ‘to do’ list for longer than it perhaps should have done. I’m currently about half way through a re-acquaintance, after several decades, with Edmund Burke’s Reflections on the Revolution in France, motivated by a passing thought that the current Parliament has seemed to exhibit some distinctly Jacobin tendencies. There are many striking passages in what can reasonably be described as Burke’s long, sustained rant against the political developments in Paris toward the end of the 18th century, but the following passage had particular resonance for someone with strong interests in public policy.

“The science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught à priori. Nor is it a short experience that can instruct us in that practical science: because the real effects of moral causes are not always immediate; but that which in the first instance is prejudicial may be excellent in its remoter operation; and its excellence may arise even from the ill effects it produces in the beginning. The reverse also happens: and very plausible schemes, with very pleasing commencements, have often shameful and lamentable conclusions. In states there are often some obscure and almost latent causes, things which appear at first view of little moment, on which a very great part of its prosperity or adversity may most essentially depend. The science of government being therefore so practical in itself, and intended for such practical purposes, a matter which requires experience, and even more experience than any person can gain in his whole life, however sagacious and observing he may be, it is with infinite caution that any man ought to venture upon pulling down an edifice, which has answered in any tolerable degree for ages the common purposes of society, or on building it up again, without having models and patterns of approved utility before his eyes.”

The contrast with the sentiments of the current government is striking. The referendum result gave an immediate mandate for extensive institutional demolition: over 70% of the EU acquis was to go, including not just legislation focused chiefly on political integration, but also in areas with high economic salience such as the EU customs union and the common agricultural, fisheries and commercial policies. EU legal supremacy was to be ended, and in future Britons would be governed by laws and regulations made exclusively by their home governments.

An immediate question for the Conservative Government was whether there should be a more comprehensive ‘pulling down’ than the extensive institutional demolition entailed by the referendum result itself. Burke’s ‘infinite’ caution was no doubt a rhetorical exaggeration, but ‘proceed with considerable caution’ might reasonably have been expected to have entered the minds of traditional conservatives. In the event, at the very outset of the Brexit process, a decision was taken to seek to pull down, in its entirety and not just in part, an edifice that has served a shared purpose to a ‘tolerable degree’ for some time. It is the structure of European trading rules, including, but going well beyond, the tariff rules to be found in less deep Free Trade Agreements. This institutional structure has functioned to reduce intra-European tariff and non-tariff trade barriers, covering approaching 50% of the UK’s goods trade. It is commonly referred to as the Single Market [1].

This decision appears to have been taken by only three people (May, Hill and Timothy), exercising no caution whatsoever. There was no thought-through assessment prior to the decision, and no realistically attainable ‘patterns of approved utility’ capable of ‘building it up again’ were considered in any depth. Wishful thinking appears to have been judged sufficient: “We know how to do this” is reported to have been the sentiment of the moment [2]. If so, that was Jacobin hubris, not Burkean prudence.

There is an interesting contrast here with that most economically radical of twentieth century Conservative Prime Ministers, Margaret Thatcher. The process of liberalization, privatization and regulatory reform associated with her name proceeded over the full 11+ years of her tenure of Downing Street, on a step-by-step basis, starting with easier policy exercises at its beginning and moving on to more difficult areas (like electricity and water) at its end (and even then not touching the yet more problematic cases of railways and postal services). That allowed for sequential experimentation and learning along the way. At each stage an extensively considered new institutional structure was developed ahead of the abandonment of the old. There was no early equivalent of “we know how to do this”. There was certainly boldness and innovation, but sagacity and prudence had not gone AWOL.

Despite the best efforts of the new Jacobins, the institutional edifice of the EEA Single Market has not yet been destroyed. The EEA acquis was established by means of an international Treaty, the EEA Agreement, which the UK made a solemn promise to observe when it first signed the Agreement (in Porto on 2 May 1992) and then ratified “according to [its own] constitutional requirements”. As the Attorney General recently advised Cabinet colleagues in the context of the Ireland / Northern Ireland Protocol to the Withdrawal Agreement (another international Treaty), under international law such commitments do not simply melt away. Concrete actions are required to end them.

It may be that the Government is now hoping to evade its EEA Treaty obligations by means of the Agreement just struck with Iceland, Liechtenstein and Norway concerning arrangements designed to follow a future, currently hypothetical, UK withdrawal from the EEA. The draft Agreement was published surreptitiously on 20 December 2018, possibly with the intent that, at a future moment of choice, it will serve as an agreement that supersedes the EEA, rendering parliamentary consent to EEA withdrawal otiose. However, the new Agreement must also be ratified (see its Article 71(1)) and, if Parliamentarians smell a rat, they can forestall any such subterfuge. Parliament therefore has the power to ensure that UK membership of the EEA is not ‘pulled down’ before the means to build it (or something similarly functional) up again are very firmly before its eyes. A Jacobin government versus a Burkean parliament? That would be an interesting conjunction.

[1] There are in fact two ‘Single Markets’: the EU’s Internal Market and the EEA’s Single Market, each defined by a distinct international Treaty. The former has a wider policy scope, including the EU customs union and common commercial policy, agriculture, and fisheries, which are not covered by the EEA Agreement. The two, market governance structures are also substantially different. Internal Market rule-making includes majority voting procedures (consent to which Mrs Thatcher came later to regret), and a single supervisory system based on the European Commission and the CJEU. In contrast, the EEA rule-making and supervisory system is dualistic in nature, relying on consensual agreement and reserving a right of veto for each of the non-EU States.

[2] See Stewart Wood (2017), Theresa May’s mistaken precedent for a Brexit based on cherry picking and Tim Shipman (2017), Fall Out (page 5).

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