Foreign Relations & International Law

Brexecution: Hard Brexit

Shannon Togawa Mercer
Wednesday, January 18, 2017, 12:40 PM

The debate between “hard” Brexit and “soft” Brexit is finally over. After months of ambiguity, British Prime Minister Theresa May yesterday clarified her government’s strategic objectives, just in time for the start of negotiations in March: May is taking a hard line.

Published by The Lawfare Institute
in Cooperation With

The debate between “hard” Brexit and “soft” Brexit is finally over. After months of ambiguity, British Prime Minister Theresa May yesterday clarified her government’s strategic objectives, just in time for the start of negotiations in March: May is taking a hard line.

As I have written in a previous Brexecution post, a “hard” Brexit is characterized by the U.K.’s full exit from the European Single Market. While May didn’t use the term “hard Brexit,” she did frame the demise of the U.K.-EU relationship as the the birth of a “truly Global Britain.” So how exactly will this truly Global Britain materialize?

In her speech, May outlined twelve objectives for the upcoming negotiations:

1.Creating certainty about future regulatory and legal positions for industry and citizens through:

a.Transparency when possible.

b.Transposing all of the EU “acquis” into British law such that the laws that applied before Brexit, will apply the day after Brexit.

c.Guaranteeing that the final Brexit deal will be put to a vote in both Houses of Parliament.

2.Establishing agency and control over domestic laws by, among other things, removing Britain from the jurisdiction of the European Court of Justice (ECJ). Not the European Court of Human Rights, yet.

3.Strengthening the United Kingdom by involving the devolved governments of Wales, Scotland, and Northern Ireland in decision making and establishing a Joint Ministerial Committee on EU Negotiations that will incorporate ministers from each of the devolved administrations.

4.Keeping the Common Travel Area between the United Kingdom and the Republic of Ireland.

5.Controlling immigration from the EU.

6.Providing stability and acting “fair[ly]” by legally recognizing some acquired rights—specifically, the rights of EU nationals already in the U.K. and U.K. nationals already in the EU.

7.Protecting workers’ rights by both maintaining European workers rights and building off of them.

8.Exiting the Single Market but establishing free trade with European markets through a Free Trade Agreement with the EU.

9.Removing as many barriers to trade as possible. Exiting the Common Commercial Policy and negotiating new trade agreements with other countries, including the United States, China, Brazil, and the Gulf States (note that the United Kingdom has already begun talks about future trade relations with Australia, New Zealand, and India). Whether the U.K. will “reach a completely new customs agreement, become an associate member of the Customs Union in some way, or remain a signatory to some elements of it” is still unclear.

10.Continuing academic collaboration with European partners, specifically in science, research and technology projects.

11.Maintaining cooperation between the United Kingdom and Europe in areas “such as crime, terrorism and foreign affairs.”

12.Designing a “smooth, orderly Brexit” entailing a finalized agreement by the end of the Article Fifty two-year timeline, a “phased process of implementation,” in order to avoid a “disruptive cliff-edge.”

Which all sounds easy enough, right?

Unfortunately for May and her government, the devil is in the details.

While the speech provided the public with new information about the UK’s negotiating stances (particularly with respect to exiting the Single Market, taking charge of british borders, and revoking ECJ jurisdiction), the speech did not explain how all of the twelve objectives might be accomplished in harmony with each other. This list of negotiating objectives reads more like precisely the kind of a la carte access to the Single Market that Jean-Claude Juncker, the European Commission President, has repeatedly decried as untenable: free trade with no free movement. Indeed, May’s speech sets up a showdown in which Britain goes into the negotiations with a stance that is, on its face, irreconcilable with core European commitments.

Twisting the knife, May brazenly stated that, “while [she is] sure a positive agreement can be reached—[she] is equally clear that no deal for Britain is better than a bad deal for Britain.”

Political bluster aside, this plan may be leading the United Kingdom right into that legal scenario: no deal. Aside from the likelihood that the EU will not accept all of the objectives listed above, May’s speech only mentioned parliamentary consent once: at the time that the deal is finalized.

As I discussed in my last piece, the U.K.’s High Court ruled that the Prime Minister may not unilaterally invoke Article 50, and thereby initiate Brexit negotiations, without Parliamentary approval. This decision was appealed and we can expect the Supreme Court to hand down its ruling within days. Should the Supreme Court find that Parliament has no say in the invocation of Article 50, the current government plan only involves Parliament at the last stage of Brexit negotiations. What happens then if Parliament—containing multitudes of anti-Brexit MPs in the House of Commons and opposition in the House of Lords—rejects the draft agreement once the clock has run? The United Kingdom could very well fall off the sharp cliff imposed by the Article 50 two-year time limit. If Parliament stalls, revises, or rejects the deal and the European Union does not agree to extend the negotiating timeline, EU law will cease to apply to the U.K. without any automatic agreements upon which the U.K. may fall back. This would be, as the Guardian primly puts it, “the messiest of departures.”

While May’s speech was gamely characterized by “unsupported optimism about UK economic performance, trade prospects and the readiness of the remaining EU-27 to strike the kind of deal that would suit the government,” the process proposal discussed above also introduces a novel question of international law and treaty interpretation. How will Parliament’s deliberations count toward the Article 50 timeline? Will the EU accommodate added time for the U.K. to “withdraw from the Union in accordance with its own constitutional requirements” (Article 50(1))?

And what of domestic politics? Nicola Sturgeon, Scottish First Minister, has suggested that a referendum on Scottish independence is more likely as a consequence of May’s speech, “Scotland did not vote for the direction set out in the Prime Minister’s speech today—and it is not in our national interests.” Additionally, the government of Northern Ireland will be dissolved as of January 26, awaiting a second round of elections on March 2. This might prove particularly problematic as the chief legal officers of Scotland and Wales argued, as part and parcel of the Supreme Court appeal mentioned above, that the governments of Scotland, Wales and Northern Ireland should also have a say in the triggering of Article 50. Should the Supreme Court decide that Parliament and the devolved governments have a say, the March 2017 invocation deadline may be pushed back because of Northern Ireland’s current political limbo.

So ultimately, May’s speech provides just enough clarity to worry those who have been following the political, legal and economic intricacies of the U.K.’s strategic options. Perhaps Charles Brasted, a partner at Hogan Lovells, put it best when he said “The objectives are now clear. The path toward them is uncharted.”

Shannon Togawa Mercer is a senior associate at WilmerHale. Her practice focuses on complex global data protection, privacy, and cybersecurity matters. Ms. Togawa Mercer has extensive experience counseling clients on cross border data protection and privacy compliance as well as cyber incident response. She has practiced in London and Washington D.C. and previously served as Managing Editor and Senior Editor at Lawfare. Ms. Togawa Mercer also served as National Security and Law associate at the Hoover Institution.

Subscribe to Lawfare