What is Brexit? Brexit means that the UK will leave the EU. Brexit means that the UK will no longer be a member of the EU. That is what Brexit is. And there the clarity and confidence ends.
The UK post-Brexit will join the group of over 160 states across the world which are not members of the EU. It would be an exaggeration to claim that there are over 160 models governing the relationship between states that are not members of the EU and the EU, but not by much. There is a wide spectrum, stretching from states with an intimate relationship with the EU involving acceptance of large chunks of the EU’s legislative acquis; through states which possess a free trade agreement with the EU (these take several forms); states whose relationship with the EU is based on the WTO but adorned by extra sectoral deals; states which relate on the basis of the WTO alone; and, at the far extreme, pariah states with no engagement in multilateral deal-making.
So the UK will ultimately be located somewhere on this spectrum, stretching from Norway to North Korea. That is what Brexit is.
Brexit, then, involves choices: choices made by the UK, choices made by the EU-27. The key choices that need to be made are readily divided into three types: the external, the UK-EU, and the internal.
External. This concerns most of all the scope and nature of the UK’s trade policy with the rest of the world. Some Brexiteers have painted a picture of the post-Brexit UK pursuing rapid and fruitful negotiations with major economic powers round the world, and arriving at deals tailored to the UK’s particular interests and strengths. Leaving aside sceptical questions about the plausibility of the timetable and the incentives of these major powers to dedicate resources to negotiating with a state that has just abandoned the most sophisticated multilateral trading bloc the world has ever seen, there is a key choice that must be made before any such vision may be implemented. That choice is – will the UK stay in the EU’s customs union, or not? If it does, that ability to pursue an external trade policy independent of the EU’s is surrendered. But if it does not, goods and services made or marketed in the UK will face high and costly barriers to entry into the EU’s market.
UK – EU
The choice here asks, in short, how much of the EU’s body of rules will the UK choose to adopt and follow in order to secure privileged access to the EU’s internal market. The EU’s internal market does not possess a precise economic or legal definition – rather, it is a political construct that has evolved incrementally over time. It is, however, marked by a high degree of commitment to the ‘four freedoms’ – free movement of goods, (natural and legal) persons, services and capital – plus a highly developed competition policy supported by a relatively dense set of common policies agreed over time on obvious trade-related matters, such as product standards, but also in the areas of labour market regulation, consumer protection, environmental standards, and so on. It is conceivable that the UK will be able to cut a deal involving some degree of autonomy from the full complexity of the legislative acquis governing the EU’s internal market in exchange for some degree of privileged access to that internal market. It is not conceivable that the UK will be allowed to cherry-pick what it sees as the benefits of a post-Brexit relationship with the EU-27 and resist what it sees as burdens. Choices will need to be made about how far, if at all, the UK is willing to go in aligning its laws with those of the EU-27.
Internal
It is commonly stated that the UK’s departure from the EU will immediately cause a legislative and administrative task on an immense scale, as the UK chooses which EU-sourced rules it will abandon, which it will amend and which it will continue to apply. It is certainly true that there will arise a whole host of choices. Labour market regulation, consumer protection, environmental law, the grant of aid to industry, and competition law are all examples of areas where there is currently a partial or in some instances total overlay of EU rules. In fact it is not easy to think of any significant area of law or policy in the UK which is not in some way ‘Europeanised’.
Withdraw from the EU, and a state may make its own choices about such matters, but if it tries to start with a clean slate it will be doing nothing else apart from writing on it for years to come, as it re-invents its regulatory scheme. But in fact the job need not be so brutally taxing. Once a deal is done (if a deal is done) with the EU on the basic shape of withdrawal, it would be perfectly straightforward to repeal the statutes which form the ‘bridge’ across which EU law travels to reach the UK’s legal order, but at the same time to legislate that all measures that have been made over time pursuant to the obligations imposed by EU membership shall continue in force in the UK notwithstanding Brexit. There would be no change of substance at all. And the practical point would be that it could be considered at leisure and over time which of these measures should be retained, which changed and which abrogated. There is no rush in making the choices.
Clearly there are interconnections between the three groups of choices: most of all, the more intimate the relationship the UK wishes to pursue with the EU-27 (choice 2), the less flexibility it will enjoy in making choices 1 and 3. ‘Hard’ Brexit means (roughly) surrendering the economic advantages of privileged access to the internal market – choice 2 – in order to maximise the perceived scope for external and internal action that is free of the influence of the EU – choices 1 and 3. ‘Soft’ Brexit, by contrast, is heavily conditioned by a desire to secure that privileged market access and a consequent readiness to absorb much of the EU’s body of rules even as the UK quits the EU even if that has a cost measured in reduced external and internal scope for unilateral action.
None of these choices has been made.
Different Brexiteers have made very different claims at different times about which model they favour, sometimes making perfectly irreconcilable claims about the choices they prefer. Now they have to choose. And once they have chosen, and once the blood has been wiped from the floor after the intense political battles that will be fought over the choosing, they will need to take these choices to the EU and see what they can negotiate.
Whatever choice is made will not be backed by a mandate supplied by June’s referendum. The Leave campaign chose not to put one particular vision of Brexit before the voters. This was understandable. They could not have delivered a single vision without exposing the enormity of the gap between, on the one hand, the Leavers who want to maintain a high level of privileged access to the EU’s internal market while hoping to reduce the UK’s exposure to the full range of accompanying regulatory obligations (especially concerning the free movement of persons) and, on the other, the Leavers who were eager to skip free of the EU’s embrace entirely in pursuit of a vision of global trade on terms tailored to the UK’s needs alone. And the Leave campaign’s evasion of the choices allowed it to assemble a much wider group of supporters than would have been possible had it made the choices and pinned down one particular model of Brexit in advance of the referendum.
Strategically it was a brilliantly successful way to win the referendum. Choices that were not made – choices that were calculatedly evaded – are choices that now must be made. To insist that whatever deal is finally struck with the EU-27 should be subject to the approval of the British people is not to countermand the verdict delivered last June: it is instead to ensure that that verdict be arrived at on the basis of production of all the evidence. If this means that Brexit is a process not an event – a neverendum rather than a referendum – then that is simply the consequence of the way that the Leave campaign chose not to choose what Brexit is. The mandate they have for Brexit is incomplete. Because ‘What Brexit is’ is still not clear.
By Stephen Weatherill the Jacques Delors Professor of European Law at Oxford University.
Watch Stephen in this video – 28mins 40sec – which this post is based on:
