Brexit

Click to download a full Brexit chapter taken from the European Union Law (2nd edn) textbook:
Chapter 19 - European Union Law - Brexit and the Union: Past, Present, Future

Overview

This section aims to set out basic issues in Brexit, provide recent updates on the issue, and provide an overview on more specific issues such as the legality of Brexit, the Backstop problem, and the Brexit ‘deal’ problem. It does not, however, aim to provide a comprehensive guide to Brexit. While studying UK and EU Constitutional Law, it is advised that students actively seek resources on Brexit – both from a legal and political perspective – as well as try to keep up to date on this issue. We recommend using accurate external sources such as the BBC, The Economist or The Financial Times.

Undoubtedly, Brexit will result in several changes in UK law. One particular area that has been the worry of many is free movement rights previously held by UK citizens. If you are studying EU Constitutional Law, the main issues considered will revolve around the applicability of EU law, the principles of direct effect, supremacy, etc. There will be a two-year transitional period after March 2019 where there will still be retained EU law in the UK.

Brexit: Basics

In a referendum on 23 June 2016, 51.9% of the United Kingdom voted to leave the European Union. England voted for Leave, by 53.4% to 46.6%. Wales voted for Leave, by 52.5% to 47.5%. Scotland and Northern Ireland both voted for remain, with 62% to 38% for Scotland and 55.8% to 44.2% for Northern Ireland.

As a result of the referendum, the UK Government invoked Article 50 TFEU on 29 March 2017, which then begun the two-year negotiation period that has been the highlight of the UK's political climate. This two-year negotiation period was due to conclude with the UK’s exit from the EU on 29 March 2019, but the deadline has since been extended to 31 October 2019.

Leaving the EU, however, is not as simple as it was expected to be; there are multiple challenging arrangements and decisions to be made, particularly about issues concerning the free movements.

Undoubtedly, Brexit will result in several changes in UK law. One particular area that has been the worry of many is free movement rights previously held by UK citizens. If you are studying EU Constitutional Law, the main issues considered will revolve around the applicability of EU law, the principles of direct effect, supremacy, etc.

A no-deal Brexit?

A no-deal Brexit means that the UK would immediately leave the EU with no agreement about how it should leave the EU. This means promptly leaving EU institutions and bodies and the UK will immediately stop contributing to the EU budget of approximately £9bn a year. Most politicians are against a no-deal Brexit.

Ex-Prime Minister Theresa May's plan was to avoid a no-deal Brexit. Her deal proposed a 21-month transition period to ease the leave. However, this has been voted down three times by Parliament. This makes a no-deal Brexit even more likely especially within the recent events such as the suspension of Parliament by Boris Johnson.

Brexit: Specific Issues

The Backstop

The Backstop concerns the 310-mile border between Republic of Ireland and Northern Ireland which will eventually become the border between the EU and the UK. The main challenge to this issue is finding arrangements that both parties can agree on and, most importantly, arrangements that would work.

In the meantime, however, the UK and the EU have both agreed to put a “backstop” into place. It is a safeguard put in place to make sure that there will not be a hard border as a result of Brexit, no matter what the outcome. The current backstop agreement adopts a ‘single customs territory’ which still keeps the UK in the EU customs union. For now, food products and goods coming into Northern Ireland still follow EU rules and standards, so as to prevent checks on goods which might overburden customs. However, if these products were to be distributed to the rest of the UK, they would be subject to new customs controls.

A majority of the public, as well as MPs, often think that the backstop can lead to the UK remaining in the EU for an indefinite period of time. There have also been numerous questions on Theresa May’s backstop plan. However, as there are no simple and obvious solutions to this issue, the backstop remains in place until further agreements are made.

Boris Johnson has written to the EU requesting to remove the Irish backstop, but this was outright rejected. Donald Tusk, European Council President, suggested that the UK government was willing to allow a return to a hard Irish border. Angela Merkel, Chancellor of Germany, suggested the UK should have 30 days to devise an alternative plan to the Irish backstop and propose it to the EU.

Brexit: Updates

Recent updates will be shown first, updated as of 8 October 2019.

Rejected by Merkel: It was revealed that Germany's chancellor Angela Merkel has not approved of Prime Minister Boris Johnson's alternative plan to a no-deal Brexit. Merkel stated her options over a phone call with Johnson on October 8th 2019.

The alternative plan: Prime Minister Boris Johnson is set to give a speech today about what his alternative plan to a no-deal Brexit would be.

UKSC ruled the suspension of Parliament unlawful and void: The UK Supreme Court has unanimously ruled that the suspension of Parliament was unlawful and void, in the seminal case of Miller and Cherry (No 2) [2019] UKSC 41.

Suspension of Parliament: Prime Minister Boris Johnson has suspended Parliament. Tens of thousands of people have protested against this, but the Prime Minister has continued to defend his controversial decision.

No-deal Brexit: Boris Johnson is still committed to leaving the EU on October 31st 2019, even when the possibility of a no-deal Brexit remains very high. European Council President Donald Tusk has referred to Boris Johnson as "Mr No Deal", but the Prime Minister has remarked that it is Tusk who is "Mr No-Deal Brexit". Some critics have suggested that Johnson's main goal is a no-deal Brexit on October 31st which he can blame on the EU.

Removing the Irish Backstop: Boris Johnson attempted to remove the Irish backstop but this was outright rejected by Donald Tusk. Tusk suggested that the UK government has seemed to allow the return of a hard border with Ireland, as Johnson had no realistic alternative for averting a hard Irish border.

A new Prime Minister: Following Theresa May’s resignation, Boris Johnson, the new Conservative leader, was made Britain’s new PM. He promises to deliver Brexit during his time as PM. However, many have criticised his strong approach to Brexit as it seems like he is prepared to take a hard Brexit.