Brexit - secession and the UK’s ongoing position with the EU

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Public Law analysis: As the UK sits in a political no man’s land after the referendum result and before any formal exit proceedings, Dr Nikos Skoutaris, lecturer in EU Law at UEA Law School, considers the ongoing relationship between the UK and the EU and warns that secessions, even when they are a result of a consensual and democratic process, are never easy. 

Could the UK start the process of removing/amending EU laws before triggering article 50 and completing the withdrawal process? 

The abortive Constitutional Treaty was the first to propose the introduction of a ‘secession’ clause to remove any doubt that EU Member States can unilaterally withdraw from the EU. After the failure to ratify it, that provision was included in the Treaty of Lisbon as article 50 of the Treaty on European Union (TEU). Before that, it was still possible to withdraw from the EU under the rules of public international law and in particular article 54 of the Vienna Convention on the Law of the Treaties. 

In a way, the Vienna Convention provides for the lex generalis while article 50 is the lex specialis with regard to the withdrawal from the EU treaties. This means that if the UK does not follow the procedure of article 50, it would be violating its obligations under international and EU law. In addition, from a political point of view, such choice might lead to a hostile environment in the negotiations concerning its future relationship with the EU. 

Equally, if the UK decides to remove/amend EU laws before the article 50 procedure is finalised, it would be violating its obligations under EU law. To this effect, it is important to note that the EU treaties will cease to apply to the UK ‘from the date of entry into force of the withdrawal agreement’. So, if the UK decides to unilaterally remove EU laws before its withdrawal from the EU, it might face infringement proceedings under articles 258 and 259 of the Treaty on the Functioning of the European Union for failing to fulfill its obligations under the EU treaties. 

Of course, if a UK government decides to opt for such a ‘nuclear option’, one should expect that it would be also ignoring both the infringement proceedings and the decisions of the Court of Justice of the European Union. Again, this would seriously undermine the UK’s strategic goal to achieve a beneficial future relationship with its closest neighbours and might even lead some EU Member States to unilaterally adopt reciprocal measures against the UK.

Could such action lead to the UK being suspended from the EU?

TEU, art 7 is the only provision according to which the EU could suspend certain rights deriving from the application of the EU treaties (eg access to the single market, voting rights in the Council etc) to one of its Member States. However, in order to trigger article 7, the EU should detect that there is a clear risk of a serious breach by a Member State of the values referred to in TEU, art 2. Those values include freedom, democracy, respect of human rights including the rights of minorities etc. Unless the UK introduces laws/policies that could pose a grave risk to one or more of those founding EU principles, the EU will not trigger the procedure, as it has never done so far. 

What effect would suspension have on the UK?

As I said, I do not think that the EU will suspend the membership rights of the UK. What is more possible is that the UK would face infringement proceedings in front of the Court of Justice. In addition, individual Member States might unilaterally adopt reciprocal measures against the UK in case it decides to undermine the application of EU law before its withdrawal. To this effect, one has to note the relevant statements made by the Spanish and the Dutch Prime Ministers. They both warned that Brexit campaigners’ plans to enact a point-based immigration system would mean British citizens face barriers to travel and work in Europe. 

Are there any realistic options other than article 50 for leaving the EU?

To my mind, for the UK (as a whole) to leave the EU, the only realistic option is to follow the procedure under article 50. Having said that, one has to note the following: laconic and vague as the wording of article 50 might be, its scope is to provide a framework for—what is supposed to be—a very arduous process. Secessions, even when they are a result of a consensual and democratic process as in the case of Brexit, are never easy. The disentanglement of highly integrated legal orders is a very sophisticated and time-consuming exercise. For instance, in the case of the dissolution of Czechoslovakia, the whole process took nine years. 

Of course the EU is not a sovereign state. However, the EU and the UK legal orders have been in a symbiotic relationship for more than four decades. To give one example, there are thousands of directly applicable EU Regulations, binding in their entirety, that have ‘parachuted’ within the UK legal order without any national transposing measure. When the UK withdraws from the EU, those legislative devices will cease to apply to the UK. This means that legal vacuums will be created in a number of areas such as environmental law, consumer protection, workers’ rights etc. 

In order to avoid such situation, it is of utmost importance that the UK address the gaps and replace those EU legislative instruments with national legislation. This is a herculean task that might clog up the parliamentary timetable for a very significant period of time. Given the enormity of the exercise, it makes sense for Westminster to seek a consensual gradual withdrawal from the EU under article 50 and not an ‘abrupt divorce’ that would expose the UK constitutional order to a number of risks.

How would the future UK-EU relationship look? 

One of the goals of the next UK Prime Minister is to formulate the UK position for the forthcoming negotiations on withdrawal and on the UK’s future relationship with the EU. Although it is very difficult to second-guess what this will be, Theresa May seems to favour a ‘free trade relationship’. At the same time, she wants restrictions on the free movement of people, which the Vote Leave campaign considered to be a toxic dimension of the single market. Although, the UK as a sovereign state is entitled to adopt such negotiating position, it is rather unlikely that the EU Member States will accept it.

Accepting the UK’s negotiating position would mean that the EU Member States would allow the UK to retain the same level of access to the single market but also to enjoy enhanced control on immigration from the EU. This would equate to a more privileged status than EU membership itself. It is almost unthinkable that the remaining 27 Member States would accept that a third country would get a ‘better deal’ than themselves. EU membership—with all its benefits and disadvantages—is destined to be the most privileged status that a state could achieve from an EU point of view. Relationships with non-member states should always be less privileged than EU membership itself. 

This does not mean that it is not possible for the agreement on the future UK-EU relationships to include restrictions on the free movement of people. It means, however, that such restrictions would come at a price. Most probably, this price would entail restrictions on the other fundamental freedoms and especially on the free movement of services and capital which are vital for the UK economy. This is something that the UK political elites should bear in mind during the long negotiations with the EU, not least in order to manage the expectations of the UK electorate. Despite what some of the UK politicians have declared, their policy on cake cannot be ‘pro having it and pro eating it’.

 

Interviewed by Kate Beaumont.

This article was first published on Lexis®PSL Public Law analysis on 12 July 2016. Click for a free trial of Lexis®PSL.