The Power of Routine and the Disruptive Politics of Brexit

University of Cambridge Faculty of Law Research Paper No. 23/2024

Kenneth A. Armstrong, Joanne Scott and Anne Thies (eds.), EU External Relations and the Power of Law. Liber Amicorum in Honour of Marise Cremona (Hart Publishing, 2024).

32 Pages Posted: 18 Jun 2024

See all articles by Kenneth Armstrong

Kenneth Armstrong

University of Cambridge; Centre for European Legal Studies

Date Written: June 03, 2024

Abstract

Inspired by, and building upon, Marise Cremona’s scholarship, Armstrong’s essay explores the relationship between law and politics in EU external relations taking ‘Brexit’ as his example. Drawing on a distinction proposed by van Middelaar, the essay explores the question of whether the disruptive politics of Brexit might exemplify the end of an era of ‘rules-politics’ in favour of a shift to a type of ‘events-politics’ which is characterised by greater political agility in the face of unexpected changes and challenges. The answer put forward is that it does not. On the contrary, consistent with an historical institutional analysis, it is argued that the process of UK withdrawal and the process of constructing a post-membership relationship were governed by routines in the form of path dependencies, standard operating procedures and norms or logics of appropriateness. Crucially, law plays a fundamental role in institutionalising routine, both in terms of the EU’s substantive commitments, and in terms of its decision-making procedures. Cremona’s elaboration of the structural principles of EU external relations is exemplary in this respect. 

Hypotheses derived from historical institutionalism are tested through a careful analysis of different elements of UK exit and the formation of a post-exit partnership. This includes an examination of the role of the European Council and the conduct of Article 50 negotiations. It also shows how routine procedures in the form of the preliminary ruling mechanism served to give voice to the European Court of Justice which in turn relied on well established ‘normative scripts and frames’ from the sphere of EU external relations to ground its judgments. Path dependencies also shaped the negotiating position of both the EU and the UK in relation to the level playing field provisions in the Trade and Cooperation Agreement, albeit that the EU recorded greater success in projecting its internal rules and templates into the new agreement. Established EU procedures and EU (and international) norms also played a fundamental role in confronting instances of UK non-compliance in relation to the Irish Protocol. 

At every step in the essay brings to the fore not only the power of routine but also and concomitantly, the power of law. While recognising the disruptive politics of Brexit and without seeking to downplay the role or force of politics, the essay seeks to rebalance the account by emphasising the role of routine as constituted and consolidated through law. Armstrong’s account is analytical not normative but we find within it both instances of productive adaptability and excessive inflexibility within existing routine.

Keywords: European Union, Brexit, Article 50, power of routine, path dependency, institutionalism, rules-politics, events-politics, European Council, Marise Cremona, structural principles, external relations

Suggested Citation

Armstrong, Kenneth, The Power of Routine and the Disruptive Politics of Brexit (June 03, 2024). University of Cambridge Faculty of Law Research Paper No. 23/2024, Kenneth A. Armstrong, Joanne Scott and Anne Thies (eds.), EU External Relations and the Power of Law. Liber Amicorum in Honour of Marise Cremona (Hart Publishing, 2024)., Available at SSRN: https://ssrn.com/abstract=4867921 or http://dx.doi.org/10.2139/ssrn.4867921

Kenneth Armstrong (Contact Author)

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

Centre for European Legal Studies ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://www.cels.law.cam.ac.uk/

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