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Cutting through the noise: the key Brexit facts

Daniel Greenberg

23 Jul 2018

Daniel Greenberg, General Editor, Annotated Statutes and Insight, Westlaw UK, (Counsel for Domestic Legislation, House of Commons), explains why the enormous amount of day to day political activity makes relatively little difference to the key Brexit facts and position. 

Updating the Legal Insights Brexit FAQ Updates can be a slightly puzzling experience. Last week, Brexit featured on every news bulletin in the UK and many worldwide, with a range of politicians from all parties citing dramatic changes in approach, agreements and understandings made, questioned and broken, and I realise that I have to catch up on an enormous amount of activity in updating the FAQs. But then I look at the answer to each of the FAQs and think, no, despite all the political rhetoric and posturing, nothing in this answer has been falsified or advanced: and that seems to happen for question after question, time after time.

So, it must be equally puzzling for onlookers of the political scene, both those in the UK and abroad, who find it difficult to match the fury of the rhetoric to the apparently static facts on the ground.

Therefore, here is a brief explanation of what has actually happened as a matter of fact in relation to Brexit over the last year, what will happen over the next year, and why there appears to be a disconnect between the pace of political activity and the pace of the development of hard facts.

In terms of the law of the relationship between the UK and the European Union (EU), only one thing has actually happened in the last two years and only one thing will certainly happen in the next year. The only thing that has happened is that the UK has given formal notice of its desire to leave the EU, under Article 50 of the EU Treaty; and the only thing that will necessarily happen as a consequence is that the UK’s membership will automatically terminate as a result of the operation of Article 50 on 29 March 2019.

Nothing needs to be done to achieve that; and nothing can be done to prevent it.

The last fact – that nothing can be done to prevent Brexit – is why an enormous amount of the political controversy in the UK is carried out at cross purposes or under a misapprehension. It is simply no longer up for discussion whether or not Brexit is a good idea or should be terminated: whether or not it is a good idea, it cannot in practice be terminated.

However, as a matter of theory, there are two ways in which Brexit could be terminated. First, according to some commentators, the UK could, as a matter of law, unilaterally withdraw its Article 50 letter: this is not, however, a unanimous opinion, and attempts to revoke the Article 50 letter would certainly be referred to the Court of Justice of the European Union. More importantly, in practical politics it is simply inconceivable that the other 27 Member States would allow a veil to be drawn over all the activities of the last year or so, and allow the UK simply to maintain its present, significantly preferential, terms of membership of the EU.

Secondly, again in theory, the UK could apply for continued or replacement membership, and Article 50 expressly contemplates that as the way in which a former Member State could re-join the EU. Again, however, even if the UK decided now that it wanted to do that, in terms of practical politics it is inconceivable that the other 27 Member States would agree to the UK re-joining on precisely the same, preferential, terms as its present membership; and the process of applying and having the application considered could not possibly be carried out in a timescale that would avoid an interval between the automatic leaving of the EU achieved by the triggering of Article 50 and the UK re-joining in accordance with the new application.

So, the only thing that has definitely happened is that the UK has triggered a process; and the only thing that will definitely happen as a result of that process is that in March 2019 the UK will leave the EU. Everything else is a matter of negotiation and speculation. The UK has had a court case – Miller – as a result of which the Supreme Court required the UK government to achieve its part of the Brexit process by way of at least one Act of Parliament. But none of that changes the facts on the ground in the EU. We have now had the first of our purely Brexit bills – the European Union (Withdrawal) Act 2018. That has a number of effects as a matter of UK law: but it has no effect as a matter of EU law.

As the Brexit FAQ Updates record, there is a vast range of possible outcomes: short-term, medium-term and long-term. Those include a transitional period of withdrawal and a range of variations on the soft Brexit and hard Brexit final withdrawal statuses. But all of those, including transitional arrangements, depend on successful negotiation with all 27 other Member States, and on formal encapsulations in an agreement which passes through the EU institutions.

All the shifts and turns in political ambition and levels of agreement between politicians in the UK, and the UK government and EU negotiators, achieve nothing in themselves, and are all simply new layers of speculation as to what might eventually be achieved in an agreement.

So quite simply, until something happens, nothing has happened: and the time for something to happen is becoming frighteningly short.

Is it still possible that all the different political options and aims will coalesce in the UK into a single clear negotiating position? Yes, it is. The White Paper published by the UK government after the Chequers meeting on 6 July 2018 may now represent precisely that clear and detailed proposal on the part of the UK; although it is not yet entirely clear whether it has the necessary parliamentary and other political support behind it to give it the necessary traction as a single negotiating option with the EU.

Assuming that the White Paper does rapidly become a clear UK blueprint for a new relationship with the EU, is there theoretically time for it to be embodied in the necessary agreement or series of agreements, accepted by all 27 Member States and passed into EU law by the EU institutions? Again, in theory, yes – although the time available to achieve it is now very short.

So, in summary: the March 2019 deadline is looming alarmingly close; until that point nothing can be achieved, and after that point unless everything has been achieved nothing has been achieved.

(It is, of course, theoretically possible that a purely interim agreement could be reached in 2019 which would expressly give further time for the eventual agreements to be reached. Again, whether that can be achieved with full agreement from the 27 Member States and the EU institutions before March is something that remains to be seen, even if it were thought to be desirable by the UK government).

The Brexit FAQ Updates will continue to change relatively slowly, because very little of the political discussion changes, or is able to change, the few key facts that help in determining the EU–UK relationship over the next few years.

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