The United Kingdom and its legal culture have played a crucial role in building up the EU legal order. Since accession in 1973 alongside Denmark and Ireland as part of the Union’s first enlargement, the closely intertwined nature of UK law and EU law have engaged in a close, proximate relationship.
Landmark Article 267 TFEU preliminary rulings such as Van Duyn (C-41/74), the first ever reference from a British court to the Court of Justice of the European Union, have marked out clear instances where the UK applying EU law for its own benefit have contributed to a functioning and better understood system of rules and regulations. The forty-plus years of entangled membership has allowed the EU legal order to become a sophisticated framework of laws, values, and norms, applicable across an ever-greater range of legal fields. With the result of the UK referendum in June 2016 however, and subsequent actions by the British government, matters are about to drastically change.
As the clock continues to count down to the exit date of March 2019, it ought to be that the European Commission and the UK will have an agreement in place. Yet as it is increasingly apparent from statements of both parties and coverage in the world media, that signs of concrete progress between the parties to give legal effect to Brexit are few and far between. This points us to a number of considerations and ponderings from a legal perspective. Firstly, how can and does a Member State withdraw from the Union; secondly, what would the arrangements post-membership relations look like; and thirdly, whether the outcomes of the negotiation process will leave all the interest parties satisfied with the eventual outcome.
The legal aspects of withdrawal
Legally speaking, Brexit will occur in two legal parts, which are indistinctly forming as part of the same ongoing negotiation process. Firstly, there is the withdrawal agreement—the actual divorce arrangement. This to date has included discussion on the transfer of regulatory competences, the relocation UK-based EU agencies to other EU Member States, the rights of Union citizens in the UK and vice versa, as well as the size of the divorce bill that the UK must pay to cover its outstanding obligations, amongst other related issues. Secondly, and much more importantly, the second of the two legal components, will be deciding upon the post-membership relations, with the agreement reached being an international treaty, charting the way forward and future relationship for UK-EU relations.
The forty-plus years of entangled membership has allowed the EU legal order to become a sophisticated framework of laws, values, and norms, applicable across an ever-greater range of legal fields. With the result of the UK referendum in June 2016 however, and subsequent actions by the British government, matters are about to drastically change.
Numerous issues appear to be points of contention, where common ground is not manifesting itself quickly enough. This may be due to the reality there is an overall lack of clear direction, publicly at least, from the British side of the negotiations. At best, the UK negotiators are being vividly coy, but at worst, are being openly dishonest about how they want their relationship with the EU and the remaining Member States to function in a post-Brexit world. Just look at one example of an unnecessary ‘red line’ that has been drawn by the British government, that of the jurisdiction of the Court of Justice post-Brexit. Declaring what form of independent dispute settlement arrangement will be in place before the manner or form of post-membership relations has been decided was a reckless move, and a misguided vendetta.
If the UK wish to avoid a bespoke post-membership model, there are a number of tried and tested outfits available at the ready for the UK to situate its post-membership relationship with the EU. Firstly, there is the option of joining the European Free Trade Association (EFTA), and applying the EEA Agreement (the ‘Norway/Iceland model’). Secondly, there is the option of joining EFTA, but negotiating bilateral trade agreements (the ‘Swiss model’). Alternatively again, there is the option of falling back to general WTO rules, amongst others. Whatever bespoke or off-the-shelf arrangement is settled upon, the end result will be that the UK will no longer be in the decision-making rooms in Brussels. This inescapable fact is a matter that smaller northern and western Member States, typically allied with the UK on many policy positions, will rue the minute that the UK are situated on the opposite side of the doors in Council negotiations.
Lots of loose ends
Whilst delivering Brexit is something that the British government is finding just as difficult as it had imagined, the whole process of executing it has been bungled on a domestic level. Starting with how the ‘triggering’ of Article 50 TEU occurred to start the formal withdrawal process, the matter ended up in an unnecessary and avoidable drawn out court battle, ending up at the Supreme Court ( UKSC 5). The Miller judgment determined that an Act of Parliament was need to notify the government’s intention to, in time, repeal the European Communities Act 1972. Presently, the European Union (Withdrawal) Bill 2017 is before the House of Commons, allowing for the ‘nationalisation’ of EU law, permitting for an orderly internal arrangement of putting EU law onto the national statute books, before later deciding what to do about different areas of EU law. Above all, the Withdrawal Bill will attempt to ensure that no legal holes exist upon the day that the UK ceases to be a member of the EU. This retention of EU law is not without consequences however, as the invoked ‘Henry VIII powers’ would allow the British government to ride rough-shot over Parliament, with Ministers been given wide discretion for the transposition of EU law into national law.
In some quarters, there are lawyers licking their lips at the prospects of what Brexit might bring in terms of business opportunities, helping clients to navigate their way through the ensuing legal conundrums.
The entire Brexit process has, and will continue to open up many legal loose ends, and is a lesson thus far for how withdrawal from a supranational organisation should not be done. Even the keenest onlookers of the Brexit process are found in dismay with the pace of the negotiations. Twenty-four months as set out in Article 50 TEU is an incredibly short amount of time, which may only be extended if the European Council unanimously decides so. All of this points to something that many lawyers knew well before the realisation that a Brexit might actually occur—that withdrawing from the Union is an overwhelming difficult task. Disentangling decades of integration through law is easier said than done, and it has yet to be proven whether a successful withdrawal of the Union is actually achievable.
In some quarters, there are lawyers licking their lips at the prospects of what Brexit might bring in terms of business opportunities, helping clients to navigate their way through the ensuing legal conundrums. However, caution must be exercised. Failure of the negotiations will mean transitionary measures will have to be employed. Given the slow pace of the negotiations thus far, further exploration of the intricacies are worthy of consideration at this time, so proper attention can be afforded, ensuring an orderly withdrawal from the Union. Legal uncertainty is serving few parties interests. The sooner that the UK-EU negotiations are beginning to show real signs of progress, the sooner the parties are better off. This means compromise by both sides, as no-one can wait forever. The clock is still ticking.
Graham Butler, Assistant Professor, Juridisk Institut, Aarhus Universitet