One way round the legal problems posed by Brexit might be to mould it on the EU’s current relationship with the Channel Islands and Isle of Man. I grew up in, or on, Jersey (more on the preposition soon). It’s an odd place, for which the term ‘insular’, if anything, understates its inverted-telescope worldview. Jersey people can tell if someone comes from elsewhere in Britain in two ways. One is that they say ‘on’ rather than ‘in’ Jersey, which irks locals because it suggests, accurately enough, that the place is a windblasted reef jutting from the surf. The other is that they refer to Britain as ‘the mainland’ – because, for Jersey people, the mainland is Jersey. This helps make Jersey a microcosm of the attitudes that ‘Fog in Channel: Continent Isolated’ Englanders hold towards Albion, and a propitious model for its constitutional future.
Like Guernsey and the Isle of Man, Jersey is a Crown Dependency. It’s not fully part of the EU and didn’t get to vote in the referendum. By Protocol 3 of the 1972 Treaty of Accession to what’s now the European Union, these territories get something close to having their cake and eating it. Under its first article, customs duties are harmonised with the EU. Jersey doesn’t formally belong to the European Economic Area either. It has free movement of goods but not of persons, except within the ‘Common Travel Area’ comprised by the UK and Eire, nor the other ‘four freedoms’ enumerated by the Union (whether or not the Brexit talks could blag a similarly advantageous deal is, of course, another matter).
Still, this suggests a way of undoing the constitutional knot tied by Brexit. Before and since the vote there has been much talk about a second referendum in Scotland, as it voted emphatically for Remain. The Crown Dependency model suggests an inverse solution: for England (and maybe Wales) to secede from the United Kingdom by becoming the equivalent of a Crown Dependency, the point being that such territories, as the government puts it, ‘are not part of the UK but are self-governing dependencies of the Crown’. As England isn’t a member state of the EU, it couldn’t trigger Article 50 of the Lisbon Treaty to initiate withdrawal. But perhaps it wouldn’t need to. Once its Overseas Countries and Territories and Outermost Regions are factored in, the EU comprises a sprawling transcontinental empire on which the sun never sets; this allows for various sorts of de-VATed, VAT-lite and Schengenless gradations of membership. One precedent for withdrawal is another non-state entity, Greenland, which quit in 1982 after a 52/48 per cent vote (though without seceding from Denmark). By contrast, Algeria left the European Communities in 1962 after independence from France, of which it was a province rather than a colony.
If England seceded from the UK, several problems would be dodged. Scotland would dominate rump UK, and its urge to secede would be the weaker, as its wish to stay in the EU would be granted by simply not triggering Article 50. There would be no need to re-create the border between Northern Ireland and Eire, whose practical erasure is central to the Belfast Agreement (in a surreal moment last week, David Davis, the new Brexit minister, implied that the UK shared an ‘internal border’ with Eire). Unlike in the usual Brexit scenarios, there would then be an EU/non-EU frontier not in the sensitive Irish border region, but between England and Scotland (and maybe Wales). Crossing from one to the other would be no more traumatic than travel is now between the UK and the dependencies.
Among other benefits, the Crown Dependencies don’t have to pay into the CAP. Quasi-secession from the UK would also gratify English nationalists, who’d have the substance of self-government (the Isle of Man, Jersey and Guernsey each has its own nano-parliament). The queen could go on being sovereign in England, as she is over these other bits. It might be anomalous for the UK parliament to be based in part of the country that no longer belonged to it, but it could always be moved to Holyrood, Cardiff or wherever.
The urge to imperium begins at home. Becoming a Crown Dependency as a way to leave the EU, and turning into an adjunct of a Celt-led rump UK, would no doubt affront English amour-propre. And that’s among the least of the benefits.