Brexit and the Law: A Bird’s Eye Perspective
Stephen Coutts (Dublin City University)
Brexit has become a veritable industry and legal writing is no small part of this massive and recent production. On the legal side there has been detailed and systematic analysis of the actual process of Brexit, the operation of Article 50 and the elaboration of a withdrawal agreement, the transition deal and, in necessarily less detail, any future relationship. The different options have been discussed and debated, since even before the referendum. The current slow progress is not so much due to the absence of possible options but the difficulties in securing political consensus within the UK government.
This short note is not intended to enter into the details of the Article 50 process, the draft withdrawal agreement or on the possible options for a future relationship and how they may or may not work in practice (although I will touch on these and other issues in passing). Rather, it is an attempt to take stock of Brexit as a legal phenomenon and in particular to step back and assess the impact of Brexit on law in general and in particular UK and EU law. For Brexit has proven itself to be not simply a generator of legal problems; rather, it has had and will continue to have the effect of (re)shaping entire legal orders and in fact generating new legal orders. This note will briefly assess the impact of Brexit on the law of the UK, the EU and finally the emergence of a new type of law – the law of disintegration within the context of transnational regional law.
Impact on UK Law
First and foremost, Brexit will reshape considerably the substantive and the constitutional law of the United Kingdom. Substantively, it remains to be seen how much of the law of the UK will change. European Union law covers a significant part of the law of any Member State, particularly in market regulation but also in ancillary areas such as health and safety, labour law and environmental law. More recently, it has also expanded to cover immigration and asylum and criminal law. All of these areas of law are now subject to change. Precisely how much change will depend on the future relationship with the Union and the extent to which it is bound by EU law. However, it is likely that the UK will move to being a norm-taker in these fields – either formally or informally – particularly in relation to market regulation, if companies operating in the UK wish to maintain access to the single market.
If the precise impact on various substantive areas of law is not yet entirely fixed, the impact of Brexit on the UK’s constitutional law – a field that is already in considerable flux – is already apparent. The impact can be discerned in three areas in particular. First, the very question of the locus of sovereignty in the UK and the growth of the referendum as a mechanism of constitutional decision-making in the UK. Second, the relationship between the various organs of government and in particular parliament and government. And third, the relationship between the various constituent units of the United Kingdom and between Westminster and the devolved administrations.
The sovereignty of parliament lies at the heart of the UK’s constitutional order and indeed can be characterised as the Grundnorm or rule of recognition for the UK’s legal system. It also lay at the heart of the calls for Brexit, with the slogan ‘take back control’ being often a stand-in for (re)asserting the sovereignty of parliament vis-à-vis the various institutions of the European Union. Ironically however, the sovereignty of the Westminster parliament has if anything been unsettled and called into question by Brexit in a most serious fashion.
Firstly, by the process itself. A referendum is largely alien to the UK’s constitutional system by virtue of the fact that it represents an alternative articulation of sovereignty and in particular the locus of sovereignty. Constitutional amendment can only be achieved in Ireland by referendum, ie popular vote, because Ireland subscribes to a form of popular sovereignty. Bunreacht na hÉireann declares that it is the Irish people who are sovereign and who ultimately determine all questions of national policy. The UK on the other hand subscribes to a form of parliamentary sovereignty and hence indirect democracy. However much the UK Supreme Court can declare that the ultimate decision for triggering Brexit lies with the Westminster parliament, the sheer political potency of a popular vote means that de facto the decision has been made by popular acclaim, despite the reservations of a majority of MPs.
Secondly, one of the great ironies of Brexit is that it would appear not to return power to the Westminster parliament and hence secure a greater degree of democratic legitimacy – the absence of which appeared to be a strong motivating factor for Brexiteers – but rather will return that power to the Government. The sheer scale of the task to disentangle the UK from the EU’s legal order will mean firstly a vast transplanting of existing EU law into UK law en masse and secondly, in order to make the necessary adjustments, the creation of a power vested in the Government to alter UK law, including acts of parliament, (so called Henry VIII clauses, named after a monarch fond of their use) to the extent necessary. A remarkable, if probably inevitable, outcome of Brexit for the power of parliament.
Thirdly and finally, Brexit has opened up old and new fault lines in the constitutional settlement (if such a word can be used) between the different constituent units in the United Kingdom and in particular the relationship between the devolved institutions and the central government. The vote in and of itself to leave the UK was itself unevenly spread throughout the UK, with Scotland and Northern Ireland clearly voting remain leading to the possibility of these sub-national polities being removed from European Union without their consent and raising questions of democratic legitimacy in these states and even the possibility of withdrawal from the UK itself, either as an independent Scotland or by unification with Ireland for Northern Ireland. While these calls of self-determination in the wake of Brexit have abated somewhat, the process of Brexit and in particular the exercise of powers being returned to the UK has raised fresh possibilities for conflict with the devolved Governments, understandably, wishing to have greater control over those fields already related to their own powers and the central government resisting these in an effort to maintain the UK’s internal single market.
There is a certain political and legal paradox in all of this. Brexit was an affirmation of the constitutional autonomy of the UK and to some extent a desire to return to a pre-EU political order of autonomous and unconstrained sovereignty by the UK. The reality is that Brexit has been a significant destabiliser of the UK’s constitutional order, raising the question of popular sovereignty in a constitutional order to which it has, since at least the days of Edmund Burke, been alien. It has resulted in a disempowering of Parliament vis-à-vis the executive and finally has reopened fault lines in the federal settlement of the UK that places strains on the UK as a United Kingdom. The impact on the EU’s legal order has been of a less obvious kind but nonetheless does raise questions about its constitutional finalité.
Impact on EU Law
The impact on EU law both substantive and constitutional is less direct and will likely take more time to emerge. Nonetheless, Brexit will certainly have an impact on both fields. In terms of substantive law, the impact will be indirect and will emerge over time and arises from the absence of the UK from the law-making process and the very particular perspective and weight it brought to bear. Three effects can be discerned. Firstly, the UK has long been known as the ‘awkward partner’ in the EU. This relates as much to legal as political matters, where the UK has opposed further measures of integration in a variety of areas. Indeed, in many fields of EU law experts and policy makers are speculating regarding the possibilities for integrative measures now the UK is leaving. Secondly, the UK brings a distinctly liberal perspective to bear on the EU law-making process in economic matters. Since the days of Margaret Thatcher, it has championed the single market and the completion of market integration and deregulation, most recently in pushing for the completion of the single market in services. This influence will be removed in the future and it is likely that more protectionist or socially orientated provisions will emerge from the law-making process and may alter the orientation of the single market. Thirdly, and more relevantly for Ireland, the UK was the single largest common law jurisdiction, a fact that had particular implications for criminal law and civil law. With Ireland (and possibly Malta, depending on the classification of its mixed legal system) the only remaining common law Member State(s), it remains to be seen how this will affect the development of the law in these areas.
More generally, Brexit has created something of a constitutional moment for the Union. Firstly, the very fact of Brexit, alongside other shifts in the global political environment, has called into question, momentarily, the very existence of the Union. Following from the Eurocrisis, the Union faced another ‘existential crisis’ with the spectre of a series of copy-cat exits being raised. This however, was overcome remarkably quickly with a reaffirmation of the importance of the Union and a very obvious display of unity, including in the process of Brexit itself. There was a recommitment by the Member States to the European project understood broadly. In combination with the Eurocrisis, Brexit has fed into and will no doubt influence, the debate on the future of the Union and in particular its constitutional structure. Options have ranged from paring back the Union’s competences to increasing them. Whether this is done in unison, as 27 Member States, or whether there should be greater scope for differentiated integration is also being discussed. The prospect of a multi-speed Europe, to a greater extent that at present, is a very real possibility.
The triggering and operation of Article 50 has also had its own impact on EU law. Article 50 has generated its own body of law, including in inter-institutional relations and has resulted in a hybrid process mixing supranational institutions and the Member States in a cooperative venture to manage an orderly withdrawal. Contrary to expectations (and to experience in the Eurocrisis), the supranational dimension of the Union’s constitutional nature has not been side-lined but rather has been affirmed and developed. Equally, throughout the process, the values and principles of the Union – including the nature and meaning of membership – has been reasserted and clarified. Finally, the possibility and now reality of exit has questioned the finalité of the Union and in the telos of ‘ever closer Union’ amongst the peoples of Europe. Counter-intuitively perhaps, this has led to reflection on the goal and purpose of the Union and of its legal order.
A Whole New Law?
Finally, Brexit will create a whole new legal order – whatever the final label applied to the withdrawal and future relationship agreements, it is likely that Brexit will result in a new relationship between the UK and the EU based on its own set of laws and institutions lying somewhere between an international legal order and a supranational legal order. There certainly is some precedent for this; the Union has entered into a variety of association agreements with third states and the EEA regulates the relationship between the EU and most EFTA states (with Switzerland being the exception).
Brexit will cement this trend and contribute to an understanding of regional legal integration outside the confines of the European Union itself. The EU should, especially after Brexit, been seen as lying at the core of a more general regional system of transnational law. The exact nature of this legal order is still very much to be determined and indeed ‘governance issues’ remain perhaps the thorniest question in the ongoing negotiations on the withdrawal agreement and will no doubt be similarly contentious in the negotiation of the future relationship. This relates to the substance of the law itself (which rules and from where) but also to constitutional aspects of this legal order including the quality of the law (directly effective, its relationship with UK primary law) and finally institutional matters such as the enforcement and interpretation of the law, including any future role for the Court of Justice or the establishment of a new court or adjudication body.
While the UK’s future relationship can certainly be located within the broader space of European regional law, two factors – one a difference in degree, one a difference in kind – differentiate this new legal order from previous associations. Firstly, the sheer importance of the UK as a political, economic and security actor within Europe. Aside from its scale the UK has a particular weight in certain key areas such as financial services and security. This will no doubt impact on the nature and form of any agreement and its importance for future study. Secondly, contrary to other agreements, the aim of which is to bring the various associated states closer to the Union economically and ultimately legally, the UK’s association will be a regime designed to remove the UK from the Union and sever legal links; it is managed disintegration. Given that integration has served as a key principle in the interpretation of Union law, Brexit and the legal regime that results opens up the possibility of a new set of principles to manage divergence rather than convergence in international legal relations; a whole new departure for the field of transnational law and transnational legal regimes and one that will call for further study and elaboration.
Conclusion – A Tale of Two Unions
Brexit is a story of divergence. The United Kingdom and the European Union are going their separate ways. However, 40 years of integration and a vastly changed international legal environment means that that separation is not simple, nor will it be clean. It has had and will continue to have massive legal implications internally within the UK in relation to its substantive law and constitutional law and also for the European Union, both in the future development of law and also more generally for the underlying rationale of the European project. It will also generate an entirely new legal order in order to manage the future relationship and raises the profile of alternative forms of transnational association within the European legal space.
It is also a story of divergence of political and constitutional experience. As is apparent, the UK’s constitutional order, already under strain, has been unsettled significantly by the event and process of Brexit. The question of popular sovereignty raises its head as contesting the heretofore and centuries long dominance of Parliament. It raises a whole set of problems relating to the relationship between parliament and the executive in law making and the associated issues of democratic legitimacy – it seems that exit from the Union is no panacea for the ills of the regulatory state and executive dominance. Finally, the very fabric of the United Kingdom is called into question with the independence of Scotland, thought to have been settled only a short time ago, back on the table and the position of Northern Ireland – especially in light of the current negotiations on the infamous ‘backstop – unclear. On the contrary, the European Union – at least so far – has managed to emerge stronger and has had its constitutional underpinnings reaffirmed. The Article 50 process itself has developed a new area of activity for the Union. The supranational nature of the process has been asserted and it is an example of relatively harmonious inter-institutional relations. The existential crisis for the Union manifested by Brexit, while still certainly raising some questions about the ultimate goal of European integration and the possibility of ever more differentiated integration, has in fact led to a reflection on the meaning of membership and the principles of a true community of states. The result of Brexit, contrary to what was hoped for by the Leave camp, has so far been infinitely more damaging for the United Kingdom and to some extent reaffirming for the EU. While this diagnosis is well-known for the economic and political field, it is no less true for the constitutional and legal.[A shorter version of this essay recently appeared in the DCU Brexit Institute’s Brexit Report.]
Stephen Coutts is Associate Professor of European Asylum and Migration Law at DCU. He holds a BCL (Law and French) from University College Cork, and LLM in European Law from the College of Europe, Bruges and a PhD in law from the European University Institute. He is a member of the editorial board of the Irish Journal of European Law and a Council member of the Irish Association of Law Teachers.