Brexit Flashcards
Brexit process
Article 50 TEU
Historical origins
Total silence in Treaties on issue of departure
Implications of Article 50
a) Art 50’s procedure extends the competence of EU to question of withdrawal, rather than leaving it to be resolved amongst and between MS
b) Agreement reached is provision of EU law
c) Art 50 governs only process of departure, not future relationship of UK and EU
a) Art 50’s procedure extends the competence of EU to question of withdrawal, rather than leaving it to be resolved amongst and between MS
- Not bilateral agreement
- Misunderstood by David Davis (Berlin, not Brussels)
- UK rejected when tried to make bilateral negotiations
b) Agreement reached is provision of EU law
Requirement to comply with fundamental constitutional principles of EU e.g. primacy of EU law, monopoly of CJEU in interpretation, protection of FR
c) Art 50 governs only process of departure, not future relationship of UK and EU
- Issues e.g. UK MEPs leaving European Parliament, future spending commitments while UK was member
- Backstop is legally on periphery, since it affects post-Brexit relationship
- Future relationship to be settled separately
Features of Article 50
a) Ratified by Qualified Majority
b) Authority to give notification and trigger Art 50
a) Ratified by Qualified Majority
- No state has veto powers
- Strict timetable once process is triggered
- Interests of remaining MS include political (cherry-picking deal would pose existential threat)
- Two year period can only be extended with unanimous agreement
- Scope of agreement (excludes areas requiring unanimous agreement)
b) Authority to give notification and trigger Art 50
Parliament must trigger since it involves the repeal of ECA 1972 (Miller)
Up to Brexit day, UK can unilaterally revoke Art 50 provided that decision is
a) made with constitutional requirements
b) unequivocal, end process - not pause
(Wightman)
Limit to scope of Art 50
Agreement cannot legally give permanent access to Single Market since that involves future economic relationship
Content of current Withdrawal Agreement
a) Guarantees rights for EU citizens in UK, and UK citizens in EU (but not cross-commuters)
b) transition period until 31 Dec 2020
c) Disputes re meaning to be judged by joint arbitration panel
Backstop
Agreement to avoid hard border between Ireland and Northern Ireland
- If successful agreement, the arrangement will supercede backstop protocol
- If no successful agreement, UK agrees to remain in temporary customs union applying EU customs rules, thereby part of customs union (AG says can be forever)
Implications of backstop protocol being applied
Limited UK’s ability to set customs duties lower than Eu in third-party deals
Political response to backstop protocol
Major compromise already, involves separating FMG from other freedoms
Opponents:
DUP (NI treated differently)
Hard core Brexiters (UK becomes rule taker)
Options for Future relationship
a) Degree of access to Single Market
b) Transition out of EU legal order
c) Impact on NI and Gibraltar if there is hard Brexit
