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‘Brexit Means Brexit’ – but what does ‘Brexit’ mean? by Rhodri Thompson QC

Related Member(s):
Rhodri Thompson QC
Related Practice Area(s):
EU Law, Public Law

We shall not cease from exploration, and the end of all our exploring will be to arrive where we started and know the place for the first time.’

T.S. Eliot

The dust is still settling from the outcome of the Referendum but two things are clear: the majority of those who voted in the Referendum ticked the Leave box; and the new Prime Minister says that ‘Brexit means Brexit’ (and has immediately appointed three leading members of the Leave campaign to take responsibility for foreign policy, international trade and the process of preparation for the negotiations that will follow).

But if we try to decipher what the slogan ‘Brexit means Brexit’ actually means, a number of problems immediately emerge.

These problems have three main sources:

  • first, the vote to leave did not determine when we leave – the vote was for an outcome but did not set a timetable for achieving that outcome;
  • second, the vote did not determine how we leave;
  • third, and most fundamentally, the vote did not decide what positive alternative economic and diplomatic arrangements should replace the UK’s membership of the EU.

This article considers first what Brexit does not mean, then the three questions set out above.

What Brexit does not mean

First, ‘Brexit’ clearly does not mean the status quo – the one immediate legal consequence of the outcome of the Referendum was that the complex outcome of the negotiations conducted by David Cameron, the Settlement Agreement that triggered the Referendum, ceased to exist – there is no going back even to that negotiated position without the unanimous agreement of the other Member States.

Secondly, ‘Brexit’ equally clearly does not mean the immediate cessation of membership either legally or practically: legally, the mechanism for leaving the EU is specified in the Treaty on European Union – even if Parliament repealed the European Communities Act 1972, the UK would remain a member of the EU – the Referendum vote was to leave the EU, not to breach the existing terms of membership before leaving; and both David Cameron and Theresa May have made it clear that this is not a realistic possibility in any event.

Thirdly, as a matter of legal theory if not practical reality, the outcome of the Referendum, if that is what ‘Brexit’ is meant to refer to, has no legal significance and could therefore, in theory, be ignored or repudiated by the Government or by Parliament; or it could in principle be repudiated either by a second referendum or by a general election result in which the manifesto of the successful party or parties committed them to abandon the withdrawal process.

Leaving that third possibility on one side, as Theresa May’s slogan seems intended to do, the effect of the vote appears to be to compel the Government to reverse its foreign and economic policy by actively preparing to engage in a diplomatic process that will start at some unspecified point and ultimately result in the UK ceasing to be a member of the EU.

When will we leave?

The process for leaving the EU is specified in Article 50 of the TEU.  It is triggered by a decision of the leaving Member State to notify the EU of the intention of that State to withdraw from membership.  It is still unclear how or when that decision will be taken under the UK constitution but the Government’s current view appears to be that there will be no notification until the end of this year.

Assuming that to be the case, and that the decision is taken early in 2017, Article 50 envisages a negotiating period of up to two years (subject to extension by consent) within a framework for negotiation.  So it seems unlikely that the UK will cease to be a Member State of the EU before the end of 2018.

How will we leave?

The negotiating process is far from straightforward even at the diplomatic level, and it is rendered enormously more complex by the fact that EU law is heavily integrated into UK law, not only by the terms of the European Communities Act 1972, which makes directly applicable EU law and judgments of the ECJ binding within the UK, but also by secondary legislation adopted under the 1972 Act and by significant elements of EU law that are incorporated into UK law by specific primary legislation.  The legislative programme to achieve this objective is a formidable one that raises serious legal and practical difficulties.

Another layer of complexity is created by the fact that the EU has exclusive competence in significant areas of law and commerce, notably in the field of international trade, which will be a crucial area for the UK if it is to benefit rather than suffer from withdrawal from the EU.  Until the UK ceases to be a Member State, the UK will find it very difficult to enter into binding agreements otherwise than through the existing EU mechanisms; and the UK also faces substantial practical difficulties in assembling staff competent to replace the EU in such negotiations.

What will we do instead?

But by far the greatest difficulty in knowing what ‘Brexit’ will mean in practice is that the vote to leave the EU was not based on any specific alternative proposals – the Leave campaign’s central pledges were (i) reduced costs (ii) liberation from the binding rules of EU law; and (iii) controls on free movement from other EU States.

However, it appears to be generally accepted that there would be very considerable economic and social costs if the result of implementing all those pledges would be to exclude UK nationals and businesses from the advantages currently enjoyed by them under EU law.  Very influential figures, notably the former Foreign Secretary and new Chancellor, Philip Hammond, have made it clear that they do not consider that the above three elements are achievable in conjunction with an economic or diplomatic outcome that they consider tolerable.

What is more, the negotiating strategy of the previous Prime Minister, David Cameron, was precisely intended to build on the UK’s existing opt outs from EU law in circumstances where he enjoyed considerable bargaining power and goodwill from the other Member States, all of whom wanted to help him to argue successfully that the UK should remain a Member of the EU.  It is not obvious how the benefits of such opt-outs and of the Settlement Agreement will be achieved by negotiation once the UK is no longer a Member State, even if the positive benefits of membership are ignored.

The possibility must therefore exist that the UK’s negotiating position with the remaining EU Member States under Article 50 will in practice be significantly weaker than that of David Cameron as the Prime Minister of the second most powerful member of the EU, and that we may find, unpalatably, that the terms on offer for our departure from the EU are significantly less advantageous to our economic and diplomatic interests than those that were rejected as insufficient in the Referendum.  We will then discover whether the future enhanced ability to make our own laws and to strike our own trade deals will be sufficient compensation.