Rushing for the Brexit

Just over a week on and the legal world is coming to terms with Brexit but there remain many unknowns. Until the politicians determine the negotiating route it is difficult to see the full effect in law or the legal route to be followed to achieve the desired end. Lawyers being lawyers, however, unsurprisingly the technical analysis of what is lawful has begun.

Theresa May probably reflects Government policy that it will take a few months to decide on negotiating strategy before sending in Oliver Letwin, as Chief Negotiator, to negotiate the exit but more importantly what will replace the EU.

Unless you take an extreme neo-liberal stance of pure free trade, the relationships that are the EU will have to be replaced with something. The choice is limited particularly if you throw into the pot the slogans that became part of the Brexit campaign; immigration controls with no free movement of peoples and the removal of European judges deciding our law.

The EU stance appears to be that it will not negotiate UK departure until withdrawal notice is served under Article 50 of the Lisbon Treaty. A debate is now raging whether in law the Government has the power to do so without further legislative authority. The Government takes the view that no legislation is necessary but many influential lawyers disagree. We may expect a challenge in the Courts. If legislation is required then there could be some doubt whether the Government would achieve a majority.

When we decide that issue there is debate about the effect of serving notice under Article 50 and whether it is a one way street. Some suggest that Article 50(3) establishes the time table and there is no going back. That timetable is that having served notice, the UK will withdraw automatically on the second anniversary unless a deal has by then been done, or the EU agrees to extend the timetable.

Our founding statute is the European Communities Act 1972 with section 2 providing that the EU Treaties become law. That will be repealed on withdrawal. It seems possible that at the same time there will be a huge piece of legislation making all EU law at the time domestic law. That would be the simplest way to proceed but the effect could be to put on the domestic statute book many statutes that the Brexiteers would prefer to abolish.

What then would be the framework to replace the EU. These are normally referred to by the country currently subject to such arrangements. So there is the Norway option either in its full or lite version; the Swiss model; the Turkish model or the Canadian model.

The Norway model would see us joining the EEA. The problem there is EEA law (usually reflecting EU law) would apply domestically, those pesky judges in the EFTA Court (which often follows the EU Court) would have a say on our laws and worst of all, there is free movement of people. OK so how about a lighter version without free movement. That would be possible but you would still have EEA law and the EFTA Court. In any event why would the EEA countries agree?

The Swiss model avoids many of these problems save for freedom of movement. The Swiss recently rejected free movement in a referendum and this has put their standing with the EU in doubt. The City would have a problem with the Swiss model because there is no passporting for financial services into the EU. Further, the EU has indicated that it will not agree a further Swiss model.

The Turkish model is minimalist. It is simply a customs union.

The Canadian model is simply a free trade agreement with the EU. It took many years to negotiate and is not yet in force. Again, it has the City question over passporting of financial services which could see the City locked out of the European market.

Finally, we could join the WTO as an independent party. Our current membership is held through the EU. The WTO Director General suggests that we will have to negotiate with all 160 nation members individually to do that.

On the subject of getting rid of those interfering European judges, there is often confusion between the EU Courts and the European Court for Human Rights. The latter is not an EU institution but an institution created by the European Convention for Human Rights which the UK founded in 1948. It is this Court, for instance, that determined the UK breached the Convention on prisoners’ rights to vote. To rid ourselves of these judges, we would have to remove our signature to the Convention. Most commentators agree that this would be wholly unacceptable, so the Government would have to engineer some other way to reduce the influence of the ECHR. Not easy, but perhaps at the moment the least of their worries.

For further information regarding the above please contact David Greene – Senior Partner and Chair elect of the Law Society International Committee, or any member of the Edwin Coe Litigation & Dispute Resolution team.

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