UK Vol.62 (Post-EUref Vol.8 – BREXIT AND BEYOND Vol.3)

Here are excerpts from BREXIT AND BEYOND – HOW THE UNITED KINGDOM MIGHT LEAVE THE EUROPEAN UNION (PDF; Nov 2016) | @UKandEU @PolStudiesAssoc.

CHAPTER THREE: BEYOND ARTICLE 50 – SHAPING THE FUTURE RELATIONSHIP
… the Article 50 notification should set out two categories of negotiating items: those to be included in the withdrawal agreement, and the proposed framework for future UK-EU relations, to be set out in a separate document underpinning both the withdrawal agreement and any eventual UK-EU treaty governing their relations in the longer term.
… An important distinction should be highlighted between the agreement on the future framework for relations between the UK and the EU and the withdrawal agreement: a framework may not be legally binding, while the withdrawal agreement will be. …
… whether the UK can somehow retain its access to the EU Single Market after Brexit, while curbing the freedom of movement of workers from other EU countries and drastically cutting (or eliminating) its EU ‘membership fee’. …it appears incompatible with preserving UK membership of the Single Market. …
…Annex 2… Probably the least risky economically would be for the UK to have a status similar to Norway, participating in much of the Single Market, perhaps with some new curbs on free movement of labour. … The pure ‘Norway model’ seems, already, to have been ruled out.
… The UK, a founding WTO member, but currently a member via EU membership, may need to reapply to join the WTO… a further, fundamental problem about dividing up the EU’s tariff quotas… …negotiate to take over a portion…of the EU quota, or add a new quota itself. …the EU’s allowances for farm subsidies…
… a ‘Canada model’ in which a new free trade arrangement…would likely mean limits on market access for UK services…
… EU foreign and security policy is made largely on an inter-governmental basis…

3.1 What does Brexit mean for laws in the UK?
EXISTING LAWS
…repealing the European Communities Act (ECA) 1972… Many EU laws have been transposed into UK law under the European Communities Act by the Westminster Parliament…
… much more EU law has entered into the UK order through ministerial statutory instruments… The repeal of their ‘parent’ act could see these measures themselves wiped out. …a clause ensuring those measures remain in force pending a decision to amend or repeal them at a later date. …enact into UK law EU Regulations which currently automatically enter UK law without any further action at national/subnational level, due to their ‘direct applicability’. …
…given the extent of the task of unpicking existing EU-influenced law, the UK courts are likely to continue to have regard to the rulings of the ECJ, as its decisions have influenced many areas of English case law.
…Articles 2-6 of the Treaty on the Functioning of the European Union (TFEU)… customs union, the functioning of the internal market, monetary policy within the Eurozone, conserving fish stocks and common commercial policy…
…agriculture, some of fisheries, environment and higher education and research. … If they are left to the devolved administrations, there would be a need for coordination mechanisms within the UK and provisions to maintain the single UK market.
…the monies previously coming from the EU to finance these policies in Scotland, Wales and Northern Ireland will have to be diverted to the devolved administrations. The principal items are agricultural support, cohesion funds, and research funds. …Barnett Formula, but…

FUTURE EU LEGISLATION
Any new deal that the UK signs with the rEU will have to develop a position on the extent to which the former continues to apply the latter’s rules and regulations …‘acquis communautaire’…

FULL AND ON-GOING LEGAL COMPLIANCE:
… This would imply that Parliament would continue to transpose relevant EU legislation into domestic law, and that British courts would continue to ensure that UK citizens could rely on relevant provisions in any cases they might bring. … The quid pro quo here is that the EU commits to consulting with EEA states as it formulates this legislation, although…it certainly does not amount to any voting rights. … However, it would turn the UK into a rule-taker and would have some complications in terms of areas of the acquis being linked to budgetary contribution costs.

EFFECTIVE, BUT NON-LEGAL COMPLIANCE:
…courts would only be bound by domestic law, rather than any international instrument. …imitation as flattery, in essence. The benefit of this would be that the UK retains the capacity for a high level of access to the EU (including the internal market), while keeping more formal independence and the freedom to choose not to apply certain provisions if it felt they were unacceptable. …

PARALLEL COMPLIANCE:
… Practically, the only change to current practice in the UK would be that the source of rules and regulations would be the relevant international organisation, rather than the EU. … Thus, the main areas will relate to technical and health standards, with security policy also falling roughly in this area too…

EXPLICIT NON-COMPLIANCE:
Finally… As a sovereign state, it would be well within its rights so to do, assuming it met its other international obligations, and there is no a priori need for the UK to accept any particular area of the acquis once it leaves. …the Leave campaign… both as a harking back to previous freedom of action and as a strategy for prospering in a globalising political economy… Rejection of existing policies and laws which derive from EU sources at a UK level may find resistance in devolved jurisdictions, where the political complexion of the incumbent government may place a higher value on, for example, environmental or social rights. This may generate pressures for greater devolution of competence in currently centralised areas (e.g. employment rights).