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16 Jun 2021

Relationship with the EU

Union

Brexit came as a huge shock to the body politic.

It is clear that the civil service was in a state of paralysis for a while at the extraordinary task ahead of delivering Brexit and its promises. This required action on multiple levels – domestic (national, devolved and local), European, international, and at the WTO – and was the biggest challenge facing the civil service and the political class since the second world war.

For months political leadership was lacking, until the then Prime Minister, Theresa May pinned her colours to the mast in her momentous party conference speech at the start of October 2016. UK in a Changing Europe commented on this at the time and we noted that six matters stood out. To what extent did May’s promises – and our comments – hold true?

First, we noted the PM made clear the only way for the UK to leave the EU was through the Article 50 process – slapping down those who thought the UK could leave simply by repealing the European Communities Act (ECA) 1972.

There would, as David Davis put it, be an orderly and smooth process, using Article 50. Well yes – and no. The EU and the UK did follow the Article 50 process, but smooth it was not.

The EU laid down the process to be followed under Article 50, and the European Council guidelines of 29 April 2017 identified the four big issues to be addressed (citizens’ rights, transition arrangements, money and the question of the Northern Ireland border).

In fact, it was not money or citizens’ rights which were the big ‘row of the summer’, but how to deliver a borderless Island of Ireland.

Debate raged over whether technology could deliver a frictionless border (no), or whether the UK should stay in the EU Customs Union (May’s preferred option, which eventually became the backstop in her version of the Withdrawal Agreement, and which split her Cabinet), or whether Northern Ireland should stay in the EU Customs Union (which is what Boris Johnson finally signed up to).

The EU also insisted that no discussions over the future trade deal (which eventually took shape as the Trade and Cooperation Agreement) could start until after the UK had left the EU.

Second, we noted that in her party conference speech, the PM put up a spirited defence that only the Government could invoke Article 50 (through its prerogative powers) – and that there was no role for Parliament.

This proved to be fundamentally incorrect.

In Miller I the Supreme Court ruled that an Act of Parliament was in fact required (which was duly passed with a significant majority). Nevertheless, the Miller litigation fuelled a narrative that the courts were trying to obstruct Brexit and were ‘enemies of the people.’

The internal battles over process and also over substance ate into the precious two year period to negotiate the Withdrawal Agreement, and so extensions were eventually asked for and granted.

Third, we noted that the Prime Minister fully expects the UK to leave as an entire entity – rather than just England and Wales leaving, with a special deal for Scotland and Northern Ireland.

Again, this is in large part correct. The UK left as a whole, to the chagrin of the majority of Scots who wanted to remain in the EU.

Yet it is Northern Ireland which has the special deal, with a foot in the customs unions of both the UK and the EU, with resulting checks down the Irish sea.

The implications of ‘checks down the Irish sea’ – which are only now being phased in – has already caused significant ongoing tensions between the UK and the EU, as well as in the Unionist community in Northern Ireland.

Fourth, we noted that Theresa May said the Great Repeal Bill (GRB) would be put before Parliament, repealing the ECA 1972 and removing the direct effect of EU law.

This would put Parliament in charge of laws in the UK, not Brussels, and certainly remove the role of the European Court of Justice. This more or less happened.

The Bill was given a much more prosaic name (the EU (Withdrawal) Agreement Act 2018) but its substance broadly reflected May’s aspirations. Principles of supremacy and direct effect were turned off (except in respect of pre-Brexit national law, the provisions of the Northern Ireland Protocol, and the Withdrawal Agreement itself) and the European Court of Justice no longer has a role (except in respect of the provisions on Citizens Rights and the Northern Ireland Protocol).

Fifth, we noted that the Prime Minister expressly ruled out the ‘Norway’ and ‘Swiss’ options and the retuning to the jurisdiction of the European Court of Justice – but she did seem to be prioritising a harder-edge Brexit.

In fact, the type of Brexit contemplated by Mrs May and firmly delivered by Boris Johnson was very hard (including very little on services, and no room for regulatory alignment) and whose dispute resolution provisions are much closer to those found in the WTO’s Dispute Settlement Understanding (DSU) and other free trade agreements than those found under EU law.

In other words, they involve state-to-state resolution, leaving no room for private parties to act independently.

Sixth, we saw the Prime Minister giving a commitment to retain EU employment rights in the course of her administration. We noted that if this was to be taken literally, the Working Time Regulations and the Agency Work Regulations would be safe for the time being.

In fact, they still are: the Trade and Cooperation Agreement (TCA) allows each side to set their own labour (and environmental) standards but any significant departure from the existing standards can be punished, ultimately by the imposition of tariffs.

In early January 2021 it looked like the UK was going to take advantage of its new freedom, but the arrival of a new Secretary of State resulted in a change of heart.

So the path identified by Mrs May in October 2016 broadly anticipated what would unfold over the next five years, at least in legal terms.

However, the template she outlined significantly overlooked the whole political process which could, perhaps, be described as like a shopping trolley smashing from one side of the aisle to the other.

By Catherine Barnard, deputy director of UK in a Changing Europe and professor of EU law at Cambridge University. 

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