Today is a historic day. 9 months after the Brexit referendum Theresa May triggered Article 50 TEU. During the following 24 months, the UK and the EU will try to disentangle their highly integrated legal orders that have been in a symbiotic relationship for more than four decades. In fact, tomorrow, the Government will publish a White Paper on the Great Repeal Act and on Friday Donald Tusk will present the draft negotiating guidelines. This process that has officially started today will be arduous and will provide for many opportunities to discuss many different aspects. For the time being, I just want to briefly comment on how the State of the Union (United Kingdom) looks like on 29 March 2017.
The triggering of Article 50 comes after Theresa May’s visit to Scotland where she rejected once more the Scottish proposal for a differentiated Brexit. In fact, in the letter she sent to Donald Tusk, she clarified that the UK will negotiate as one United Kingdom. This is a clear reference to the recent vote in Holyrood. On Tuesday, the MSPs passed a motion to give Nicola Sturgeon the authority to begin negotiations with Westminster on breakaway vote. In a way, the goal of Holyrood is to reach a similar political agreement to the 2012 Edinburgh Agreement that allowed the lawful organisation of the 2014 referendum. However, the UK government has signalled that it will not consent to a second independence referendum before the Brexit negotiations have ended. Instead, in the same letter, the UK government offers a vague promise for an increase to the Scottish autonomy. Since last November, I have been arguing that the UK is heading slowly but surely towards a constitutional stalemate very similar to the one triggered by the Catalan independentist movement in Spain. The political developments this week mark another step towards this direction.
The start of the withdrawal process also comes at a week when the prospect of direct rule of Northern Ireland has significantly increased. Nevertheless, when it comes to the Brexit negotiations, the declared goal of Whitehall is to achieve a special deal for Northern Ireland, as the letter suggests. Again, it is difficult to know how the UK government envisages to square the circle between a soft border with Ireland and overall control of its borders. In my work, I have clearly showed the challenges that the Irish border presents.
Interestingly, the fact that the UK government wants a special deal for Northern Ireland has not stopped Taoiseach Enda Kenny from askingfor a special provision in any Brexit deal to allow Northern Ireland to rejoin the EU should it be united with the Republic. In a recent post, I have analysed how EU law could accommodate the reunification of Ireland. In particular, I am arguing that the EU and Ireland can draw inspiration from the German reunification and the legal solutions that have been chosen in case Cyprus is reunified in the future.
So, what does all that mean for the State of the Union? It is obvious that the Brexit process will mark the constitutional transformation of the UK. Even if the borders of the UK remain the same, the redistribution of competences between Whitehall and the three devolved legislatures will mark the amendment of the territorial constitution. So, it is highly probable that on 29th March 2019, withdrawing from the EU will not be the only change that the UK has undergone during the previous two years.
Here in Secessions, Constitutions and EU law we will follow very closely this historic process. Stay tuned and fasten your seatbelts….
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