THE IMPACT OF BREXIT ON THE LEGAL FRAMEWORK OF THE UNITED KINGDOM BY: NEERAJA P, GAUTHAM A. B, RESHMA RANJITH & SEENATH P.S
THE IMPACT OF BREXIT ON THE LEGAL FRAMEWORK OF THE
UNITED KINGDOM
AUTHOR 1:
NEERAJA P
2nd
Semester LL.M (Commercial Law) Student at C.S.I College for Legal Studies,
Kottayam, Kerala, India
AUTHOR
2: GAUTHAM A. B
Practicing
Advocate at Nedumangad Court, Kerala, India
AUTHOR 3:
RESHMA RANJITH
Practicing
Advocate at Kollam Court, Kerala, India
AUTHOR 4:
SEENATH P.S
4th
Semester LL.M (Commercial Law) Student at C.S.I College for Legal Studies,
Kottayam,
Kerala, India
ABSTRACT
It's possible that the
recently united nation isn't as "independent" as it had intended. It
will be necessary to establish new agreements with the ex-spouse, divide
assets, and pay maintenance. These agreements could not be as favourable as the
ones that now exist, such as granting access to the Internal Market rather than
"joined custody." Most importantly, as the contributions to this
special issue have demonstrated, it may be exceedingly difficult, if not
impossible, to remove the body of EU law that has become deeply ingrained in
national legal systems over the years, frequently as a result of actions taken
by domestic actors like the courts. Divorce is rarely an easy process. As
previously mentioned, a UK that has finally been released from its marriage
contract with the EU may find itself free but alone in the world community.
INTRODUCTION
If a Conservative
government were elected to power in 2015, British Prime Minister David Cameron
had pledged in 2013 to hold a "In or Out" referendum on the UK's
membership in the European Union (EU) in 2017. This referendum appears (as of
writing in January 2016) likely to take place in 2016 or 2017 at the latest,
with the Conservatives having returned to power at Westminster with their first
majority since 1992. Such a vote would have an unpredictable result because
polls frequently show slim majorities in favour or against. One thing that is
certain is that the UK may very well decide to exit the EU in the next years.
After more than 40 years of complete EU membership, these are pertinent topics
in 2016. In order to respond to these concerns, we must re-examine and assess
the advantages and disadvantages of continuing to be a member of the EU on a
financial, economic, political, geopolitical, cultural, and other fronts. This
is especially significant since, as is frequently the case, rather than being
grounded in a sober, fact-based assessment of the advantages and disadvantages
of each alternative, political discourse appears to have been shaped by the
short-term, even populist, dynamics of UK electoral politics. In light of this,
the special issue's objective is to make a meaningful contribution to the
careful examination of the causes and, more importantly, the effects of a
potential Brexit.
The impact of Brexit on the legal framework of the United
Kingdom
A workshop aimed at
addressing these topics was held on June 25, 2014, by the University of
Birmingham's Public Law and Human Rights Research Cluster in collaboration with
the Institute of European Law (IEL). The workshop featured four connected
sessions with political scientists, public officials, EU and constitutional
lawyers, and historian and former diplomat Sir Stephen Wall as the keynote
speaker. This session was a part of the IEL's silver anniversary celebrations.
The principal objective of the organisers was to impart knowledge on the
potential effects of a "Brexit" on English and UK law, with a focus
on its political, historical, and economic backgrounds. Concurrently, the
workshop included an investigation of the nature of the modern European Union.
The majority of the papers that were given during the workshop are contained in
this European Public Law special edition. Although it is obvious that not every
facet of a "Brexit" could be covered in a one-day workshop or even in
a special edition of a magazine like this one, the editors and writers hope to
shed light on a number of important areas. These specifically cover the
following topics: (a) the UK's EU accession history, which is essential
background information for any discussion of the country's recently proposed
"Brexit"; (b) a discussion of one option the UK may consider to
structure its relationship with the EU following such a move; (c) an analysis
of the implications for British businesses and citizens; and (d) an evaluation
of the implications for specific elements of the UK constitution and common
law. Sir Stephen Wall opens the special issue with an insightful historical
essay. A brief biography is required. Former British diplomat Sir Stephen
advised Prime Minister John Major on foreign policy and Prime Minister Tony
Blair on the EU. He collaborated extensively with five foreign secretaries. He
is also the official historian of Britain’s relations with her EU partners,
taking up this important venture where the late Alan Milward left.[1] He
paints an intriguing picture in his narrative of how the UK reluctantly entered
the EU. It's safe to argue that this mindset has persisted ever since.
"The United Kingdom, at heart, never wanted to join the European Community
and, at heart, never stopped hankering after a world where it would be safe for
it to leave," the author astutely observes in the opening of his paper. In
this regard, Joseph Weiler recently made clear that the only way to placate
this counter-intuitive mindset would be to leave the EU. A "no
concession" or "rule change" might resolve this deeply ingrained
"identitarian" problem. Professor Ciarán Burke of Schiller University
in Jena, Ólafur Ísberg Hannesson, and Kristin Bangsund, both from the EFTA
Surveillance Authority, address a specific alternative that the UK could pursue
in the case of a Brexit in their contributions. They propose that the UK might
join the European Economic Area (EEA) and the European Free Trade Area (EFTA)
in order to accomplish this goal, assuming that maintaining established markets
is a desire shared by the UK and its EU allies. According to the authors, the
EEA model would be the best option for the UK since it would combine the clear
advantages of being a part of the Internal Market with a less restrictive regulatory
framework that would provide the country more flexibility in a number of areas.
The looser, but more intricate, bilateral agreement governing Swiss-EU ties is
favourably compared with the EFTA/EEA model following an analysis of the
legislative and enforcement processes and a comparison with those of the EU.
The potential effects of Brexit on British businesses and residents are covered
in the next two paragraphs. Marja-Liisa Öberg first examines the potential
ramifications of "Brexit" on British individuals who would no longer
be EU members. Öberg's key argument, in keeping with the preceding
contribution's leit-motif, is that it is implausible for any Member State to
sever all ties to the Internal Market in the event of its withdrawal from the Union.
A departing state's requirement to establish a bilateral or multilateral
agreement in order to carry on with its participation in the Internal Market is
all but unavoidable. She looks at whether and under what circumstances
residents of third countries are granted rights and obligations in the EU
Internal Market that are equivalent to those enjoyed by EU citizens, and she
contrasts the legal status of citizens of withdrawal states with that of EU
citizens. The prospect of applying the Polydor doctrine in this situation to
provide citizens of third countries the same level of empowerment as citizens
of the EU is investigated. In his contribution, Adam ?azowski makes the case
that the British business community would not profit from leaving. One the one hand,
the UK would be bound by EU law even in the event of a unilateral departure or
amicable divorce. It would be quite unlikely to remove EU law from UK legal
orders in a laborious and resource-intensive manner. However, departure would
unavoidably result in uncertainty about future ties with the EU, which would
have an impact on the business community in the UK and probably not produce the
anticipated efficiency. The final two articles take a perspective on UK
constitutional law, addressing common law, sovereignty, and the place of EU law
in UK law both before and after "Brexit." The UK Parliament's
function and viewpoint are the subject of Graham Gee and Alison L. Young's
first contribution, while the judiciary is the subject of Sophie Boyron's
second. Gee and Young examine the legislative discussions on the European Union
Bill in 2011 and the European Communities Bill in 1971–1972, with regard to the
use of the term "sovereignty." In both situations, fundamental
worries about the diminution of the political power that can be wielded by
domestic political institutions were frequently concealed behind the language
of sovereignty. When parliamentary debates from nearly forty years apart are
compared, it becomes clear that concerns about the erosion of sovereignty in
favour of European political institutions' ability to enact laws have given way
to concerns about its erosion to the benefit of the courts, particularly
domestic courts. The writers are prompted to consider whether a
"Brexit" would result in "regaining" sovereignty via this
change. Politicians' perspectives are frequently used to examine the
"Brexit" debate, particularly their perceptions of and insights into
European politics and legislation. In contrast, Sophie Boyron concentrates on
the opinions and perceptions of the senior judiciary. She maps the senior
judiciary's perception of Europe by examining five extrajudicial speeches given
between October 2013 and February 2014, a time frame that was especially
fruitful for cases involving EU law or the European Convention on Human Rights
in the UK's highest courts. More specifically, she draws attention to its
tactics which one may refer to as "a search for judicial
self-determination" to lessen the influence of both European treaties on
the British constitution. Boyron assesses and contends that a novel
extrajudicial procedure for amending the constitution may be taking shape.
The overall conclusion
drawn from the articles in this special issue regarding the legal impact of
"Brexit" on the UK is that the nation cannot have its cake and eat
it. On the one hand, it is evident that "Brexit" aims to restore
sovereignty and "UK independence," and it may even strengthen
democracy. Conversely, the goal is to maintain a significant level of
involvement in the internal market. Persuasively, Öberg (for British nationals)
and ?azovski (for British companies) contended that following a
"Brexit," it might be challenging to fully engage in the Internal
Market. Naturally, the 2.2 million British nationals who reside permanently in
other EU member states as well as the millions more who visit them on vacation
will always be welcomed. However, they might face considerably more bureaucracy
and less favourable treatment as tourists, residents, workers and service
providers. The UK business community would of course continue to trade with the
rest of the EU, arrangements would be made, through the EEA and EFTA, as shown
by Burke, Ísberg Hannesson, and Bangsund, or otherwise, but Britain would be
removed from most decision-making and see its political power reduced to
persuasion and lobbying. Transitional and even permanent disruptions to trade
are likely to occur, and will have consequences on profits and employment in
Britain. Those in favour of ‘Brexit’ are probably accepting these clear
disadvantages as the price to pay to gain ‘independence’, but whose
independence? Gee and Young make a strong case that the likelihood of more
parliamentary sovereignty outside of the EU is constrained because domestic and
European case law—rather than the institutions that make laws in
Brussels—shapes this potential. Not only will it take decades, but it's
probably impossible to fully extricate English common law, Northern Irish law,
and Scots law from the impact of the EU (and ECHR). Boyron further emphasises
how the British constitution is less affected by these European legal systems
thanks to the role of the national judiciary. This begs the question of whether
further "independence," "sovereignty," and "self-determination"
could not be attained within the EU without incurring the costs of exiting. In
a recent speech, Sir Alan Dashwood posed the thought-provoking question of
whether "ending a bad marriage with a messy divorce" would be the
best way to go with the UK's relationship with the EU. The editors find it
challenging to declare with certainty that this was a disastrous marriage, in
part because of our differences in viewpoints. History suggests that
practicality may have had a greater influence than genuine affection. Whatever
the case, there is no denying that "Brexit" amounts to a divorce.
There is no other way to categorise the profound symbolic and real-world
effects on the UK-EU relationship that a "in-out" referendum would
bring about. To be sure, it is clear that only mature democracies, like the UK,
can afford considering ultimate decisions such as divorcing from the European
Union. Divorce may be advisable when the marital arrangement is no longer
convenient to at least one of the partners. However, considering the continued and
significant participation of the UK in the development of EU policies, as well
as the ‘opt-outs’ and special arrangements already secured by the UK (think of
Schengen or the Euro), one has to seriously ask whether there is sufficient
evidence that EU membership is no longer convenient for the country. It would
take years, money, and effort to finish this divorce, as most are messy,
expensive, and agonising. Indeed, it is possible to introduce several
agreements that define the relationship between the newly established
"independent" Britain and the EU. These might be found in the
already-existing toolkit, like EFTA/EEA, or they could take on new forms with a
little creativity. Weiler is accurate. In theory, no one can oppose the
establishment of a "special status for Britain, as associate member or
something similar." But on a practical level, this is the primary concern.
It would probably be challenging to negotiate this "special" (i.e.,
exclusive to Britain) agreement. Dealing with this issue may potentially annoy
the other members of the EU. Furthermore, there might be challenges in putting
the mutually beneficial agreement into practice, particularly if it aims to
guarantee a "significant" UK influence outside of the standard EU
governance framework. In light of this, the only aspects of divorce that seem
most certain are its drawbacks. Weiler points out that the harm that Britain's
exit from the EU will do to not only the EU but also to Britain and the rest of
the world, cannot be overstated. One
should consider the actual traction that the UK would have on its own in
geopolitics of the twenty-first century, without getting into the challenges
relating to the legal situation of the UK with respect to the trade agreements
taken into by the EU by virtue of its exclusive competence. The days of the
Empire and the UK's joint efforts with the United States to redefine the
post-World War II economic order are long gone. Very unlikely. These are only a
handful of the important queries regarding the UK's post-leave EU role in the
world. As Dashwood noted: ‘while withdrawal from the EU would mean that the UK
recovered its power to act autonomously as a subject of the international legal
order, we might find our newly recovered freedom rather lonely, especially in international
trade negotiations’.[2]
There are two more points
to raise that cast greater doubt on the benefits of a breakaway. Initially,
there remains the spectre of the "Scotland issue." It doesn't take
much to realise that there is a delicate balance and irony between the two
issues, and that the risks of withdrawal and secession are merely two sides of
the same coin. In the struggle to preserve the union with Scotland, Ten Downing
Street has prevailed. It might then have to fight a second war to end its union
with its European counterparts following a vote to leave the EU. If there is a
general lesson to be learnt, it is that long-standing constitutional accords
are difficult to untangle without major and unintended consequences. But here's
the irony: by doing so, it may risk losing Scotland once more.