Prolonging the acquis: a blueprint for the Brexit transition

In a report published this week Piet Eeckhout and Oliver Patel assess the options for a Brexit transitional arrangement. They argue that the most realistic option is for the full body of EU law to continue to apply in the UK, while the UK simultaneously ceases to be an EU member state. The report’s conclusions are summarised here.

They may not see eye to eye on the big issues such as trade and migration, but Theresa May and EU leaders may be closer than you think to agreeing the terms and scope for a transition period. If the latest reports are correct, the prime minister may be about to double her offer on the financial settlement to £38bn in order to unblock the talks before the European Council summit on 14 December.

If she does, she has a realistic route to a deal on the transition. Indeed, the blueprint for a transition period that we advocate as the most viable – where the UK gives up its membership but accepts EU laws lock, stock and barrel – is the one that they are actually edging towards.

You just have to look at May’s Florence speech, in which she made clear that the UK seeks a transition where ‘access to one another’s markets should continue on current terms’, i.e. nothing changes. She even accepted that the framework for this period would be ‘the existing structure of EU rules and regulations’, with David Davis confirming in his speech last Thursday to German business leaders that the UK wants to remain in all EU regulatory agencies during the transition. Similarly, the EU has also indicated that it would accept a status quo transition, but this would require ‘existing union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply’.

An extension of the EU acquis communautaire (the full body of EU law) to the UK, while the UK simultaneously ceases to be an EU member state, is the obvious choice for the post-Brexit transition. This is for three reasons. First, it’s comprehensive, meaning that very little changes on Brexit day, and a cliff-edge is avoided. Second, it’s relatively straightforward from a legal perspective, at least compared with the other options. The Article 50 withdrawal agreement could be the legal basis, meaning it would require approval only from a qualified majority of the European Council and the European Parliament, but not member state parliaments. It’s simpler than the UK re-joining the EEA Agreement via EFTA or crafting an EEA copycat agreement. The former would require treaty amendment and the approval of member state parliaments, while the latter would require bespoke institutional mechanisms for dispute settlement and enforcement to be set up. Third – and perhaps most importantly – it’s politically feasible.

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Can the Brexit clock be stopped?

In this post Piet Eeckhout adopts a constitutional law perspective to argue that there are numerous ways in which the two-year Article 50 clock could be stopped or extended. Not only could the decision to withdraw be revoked by the UK, but both the UK and European Parliament could ask for the negotiations to be extended. Crucially, EU constitutional law requires an orderly transition. 

The deed has been done, the letter delivered. All over media screens the two-year clock started ticking, registering to the level of seconds the time left for Britain’s EU membership. The point of Brexit, when by virtue of Article 50 the treaties cease to apply, can be determined with atomic precision, so it seems.

But the relationship between law and time can be treacherous, and those who look at the two-year deadline of the withdrawal process as a physical fact could well come in for a surprise. Of course we know that the European Council has the power to decide, unanimously, to extend the withdrawal process. So much is expressly stated in Article 50. There is, however, more to Article 50 than meets the eye.

In a paper written with Dr Eleni Frantziou (Westminster), and to be published in the coming months (for an earlier version see here; for my lecture on the subject, see here), we argue that Article 50 needs to be interpreted and implemented in line with broader EU constitutional principles. We also point out that UK constitutional law governs further UK decision-making on Brexit. Our conclusions are that the clock can be stopped in a number of ways.

First, the UK could change its mind. Our view is that the Article 50 notification is revocable. The notification implements a decision to withdraw, in accordance with the withdrawing state’s ‘constitutional requirements’ (Article 50(1)). If that state rescinds that decision, in good faith, and in a constitutionally orthodox fashion, the very basis for withdrawal falls away. In the UK parliament is sovereign. It has authorised the government to notify the intention to withdraw; it could decide, at any point, that Brexit is off. The EU respects the constitutional identity of its member states (Article 4(2) TEU), and would therefore need to respect a Brexit reversal, for else the effect of Article 50 would be one of forced expulsion. The travaux of Article 50 show that such an expulsion mechanism was rejected. Of course any abuse of the Article 50 process must be avoided – there cannot be an opportunistic letter-sending sequel – but the law can deal with abuse. The EU’s whole purpose is integration, and the return of the prodigal son would fit that purpose.

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The UK decision to withdraw from the EU: parliament or government?

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In light of the ongoing legal hearing on the triggering of Article 50, Piet Eeckhout, Professor of EU Law at UCL, examines Article 50 from an EU law perspective. He explores what the UK’s constitutional requirements for leaving the EU entail, noting that parliament has a role to play in any withdrawal decision.

The litigation concerning the triggering of Article 50 is underway. It is the constitutional case of the century. The government’s skeleton argument has been published. This reveals that one of the pillars of its defence is that the decision to withdraw from the EU has already been taken. Consequently, all that is in issue is the authority to notify the EU of that decision, and to start the two-year negotiation period provided for in Article 50. That, the government’s case goes, is a decision of high policy which is rightly in the government’s hands, and not in those of parliament.

In an excellent blog Mark Elliott and Alice Young dissect and critique this framing of the litigation. They point out that it is difficult to identify who took the momentous Brexit decision, given that the referendum was advisory and there is no formal government decision either – only political statements. Their critique is informed by UK constitutional authority.

In this blog I also want to focus on this question, but more from an external and EU law perspective. The theses I want to present are twofold. First, and at the expense of coming across as completely divorced from reality, I argue that there is as yet no Brexit decision. Second, if the principle of UK parliamentary sovereignty is to continue to have real meaning, the decision has to be taken by parliament, not the government.

Ever since the debate about the respective roles of parliament and government in the Brexit process gathered steam, there has been an excessive focus on the notification question: is it for the government to ‘trigger’ Article 50 by notifying the EU, or is it for parliament? This kind of framing of the debate overlooks the wording of Article 50. The first paragraph of that provision proclaims that ‘any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. The second paragraph states that ‘a Member State which decides to withdraw shall notify the European Council of its intention’. So first, there must be a constitutionally orthodox decision to withdraw. The notification is secondary.

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