Post-Brexit Options for the UK: New Legal Analysis

On 16 November 2018 the SRI (Strategic Research Initiative) and the CBR, the Centre for Business Research, University of Cambridge, held a conference at Peterhouse College in Cambridge on Brexit with the aim of encouraging interdisciplinary discussion amongst academics and further research on the implications of the UK leaving the EU for public policy.

While politicians in Westminster were arguing about the merits of Theresa May, the Prime Minister’s draft Withdrawal Agreement simultaneously delegates to the conference gave their verdict on it. They had actually read the 585 pages of what has been termed the “divorce” bill and the accompanying shorter seven page political agreement which paves the way for our future trade deals. Meanwhile some politicians were admittedly having difficulty getting to grips with it.

In this special 57 minute audio podcast three of the Conference guest speakers give their views on the Withdrawal Agreement.

All three took issue with the views expressed in the mainstream media that the Agreement was a dogs’ breakfast. They argue that it is a very well-crafted and thought through legal document and that the EU and UK negotiating teams’ have shown considerable skill in drafting it.

Simon Deakin, Director of the Centre for Business Research and Professor of Law at the University of Cambridge said that both the EU and UK negotiators need to be congratulated on it. But he expressed concerns about Citizens rights.

Deakin key quote: “It is a very soft form of Brexit in which we continue to abide by many standards in terms of labour law and the environment and many people like that. But people who supported Brexit wanted to use it as an opportunity to deregulate these standards, they would be unhappy. People who are concerned about citizens’ rights will also be unhappy, because it has some protections for EU citizens here and those UK citizens living in mainland Europe, but it doesn’t go far enough in many respects, it doesn’t give UK citizens living in mainland Europe the right to live and work outside the EU host state they have been living within. We’re under protecting EU Citizens abroad.”

Deakin gives a powerful summary of how he thinks the Agreement will play out for the UK in the longer term in terms of the devolved assemblies, and its economic impact.

“Brexit here as elsewhere puts enormous pressure on our existing constitutional arrangements and begins to call into question the legitimacy of the way in which Brexit has been conducted because significant voices such as the devolved administrations would argue they have been left out.

“It is legally impressive to have produced a text of this nature so quickly. People drafting it on both the EU and British side deserve to be congratulated. We do need law to play a role here. Without the enormous effort to put into legal terms this big political shift we would be facing a much more chaotic and difficult situation. The deal that has been offered by the EU is infinitely preferable to no-deal; no-deal will not just put at risk our economy but many aspects of social provision including things as basic as the free circulation of medicines and the free circulation of some goods and no-deal could easily lead to food shortages and the mothballing of other aspects of our industrial capacity.

“But on the down side it doesn’t sufficiently protect the rights of UK citizens living on the mainland and our environmental and labour rights because the non-regression clause only applies up to the end of the transition period. It could have provided for a more dynamic forward looking alignment of UK law with those standards. The customs territory has been designed as a function of the need to avoid a hard border in NI and this is understandable but it underplays the degree to which we need a customs union within the EU.”

He went on to say that the Agreement was a compromise: “It’s the compromise and that was unavoidable with Brexit. Both sides have compromised I think. It is infinitely better than no-deal.”

Catherine Barnard, Professor of EU Law at the University of Cambridge and a Senior Fellow of UK in a Changing Europe says it is a “huge and impressive” piece of government legislation. She then goes on to list her top five countdown of the key points within it: The provisions on direct effect and supremacy; Citizens rights; the transition; the role of the court of justice; the institutional provisions.

Barnard key quote: “Anyone who tells you they have got their heads round it already is just making it up. This is a huge piece of work and actually a very impressive piece of work. From a legal perspective you look at this text and you think Wow, some really impressive minds have been applied to this. It is quite difficult to read because there are lots of cross references to provisions in the main body of the text to the annex to the protocols, which means there are things in there that we haven’t spotted yet. Some very good people have been working on it. ”

Alison Young, the Sir David Williams Professor of Public Law at University of Cambridge looks at the constitutional implications of the deal.

Alison key quote: “It’s right to say we don’t have a unified constitution so you couldn’t find it in a law library. What we have instead is a combination of legal rules and political practices, conventions and case law and all of those work together to tell us what the UK constitution says in certain areas.”

She explained that the devolved administrations have not been happy with the Brexit negotiations: “In terms of Brexit because our membership with the EU is a reserved matter, it belongs to the UK, it has meant Westminster has been the main body to carry out the negotiations. There have been meetings with the devolved bodies, of Scotland, Wales and NI. There have been debates in the devolved administrations on Brexit and documents published but it is fair to say these have not always been fully taken on board in Westminster.”

So called Henry VIII powers which allow ministers to change existing legislation without putting it to full parliament scrutiny via secondary legislation are also giving rise to concerns she said: “I understand the concerns about the Henry III clauses. It can be very hard to delineate between a tiny technical change that you think is constitutionally OK for the UK executive to make for example taking away the word “commission” and replacing it with the word “minister”. Most of those measures are taken by negative resolutions and they go through unless someone says no thank you and they are then voted in. It is estimated there are 1,000 or so measures that have to come through quite quickly and there is concern about whether or not there is sufficient democratic scrutiny over these policy choices that will have wide ramifications going forward. Even with a committee there to try and rescue these some may fall through the gaps. There may not be enough time to scrutinise these and as a constitutional lawyer this is very concerning. “

Young said written constitutions came about after a specific constitutional moment such as regime change and chaotic moments in a countries political history such as the break-up of the former Soviet Union.

She continued: “In some senses Brexit has shown up the strength of the UK constitution because it has allowed us to think through flexibly without pushing to a complete crisis. But on the other hand it has pointed to a huge weakness. That there is an uncertainty and that it is decided purely by power rather than also by the interaction of constitutional principles. There is this huge lack of clarity and things need to be done very quickly. There are dangers in this. Maybe now we should say is this our constitutional moment and after Brexit we should sit down and think with some clarity of how to go forward. We could have a constitution convention process involving the people. “