Brexit: Happy Marriage and Divorce

  • 17 January 2019
  • kutatocsoport5

“Nobody wants to speak about divorce on the wedding day”.
Abraham Lincoln
 

Introduction

This article focuses on one of the most essential challenges for the European Union – Brexit, a process in motion since June 2016 and still shrouded in uncertainty at the present time. No one could have ever thought that the UK would leave the EU, but the referendum made it clear that the desire of the British people to regain sovereignty and take back control is favorable to being a Member State and benefitting from the Union. It is predicted that the UK will leave on Friday, March 29, 2019. However, no one knows yet how and by what conditions due to the fact that there is disharmony between the MPs and the prime minister of the UK – Theresa May – and due to the fact that there shall not be better offer by the EU than a withdrawal agreement. This article deals with the “marriage and divorce” of the UK and the European Union. Therefore, there shall be a short survey of the circumstances of the UK’s accession, the origin of the rights to withdrawal, a short summary of the reasons that lead to the UK leaving, and the last paragraph will discuss the withdrawal agreement that is currently on the table and review the possible future steps that could be taken by the “John Bull”.[i]

The Accession of the United Kingdom to the European Economic Community

In 1957, when the founding states of the European Economic Community[ii] signed the Treaty of Rome they asked Britain whether it fancied hanging out to see what might happen, Britain said thanks, but no thanks.[iii] Despite this, the British government realized that the development of the Community would affect the British role in world politics. Therefore, they joined the European Community in 1973, 16 years after it was first set up as a project to promote peace and prosperity in Europe.

However, the UK had many obstructions in joining the EEC, particularly due to two rejections. The UK had submitted its first application to join in 1961 under Conservative PM Harold Macmillan, but this application was vetoed by French President Charles de Gaulle in 1963. Consequently, the UK had made a second application, under Labour PM Harold Wilson, yet it was again blocked by de Gaulle. He claimed that Britain was not fundamentally European and more linked to America. He thought Britain would be “an American Trojan horse”.[iv] Moreover, Winston Churchill has always wanted to make it clear that the US is the most important partner of the UK and Britain would only act in conjunction with this country. Accordingly, Churchill told Charles de Gaulle one time that “every time we (British) have to decide between Europe and the open sea, it is always the open sea we shall choose”.[v] Therefore, de Gaulle has always been against the UK Accession to the EEC and in the absence of his support, the UK had no chance to be a Member State of the Community. Finally, after de Gaulle had relinquished the French presidency in 1969, the UK made a third and successful application for membership, under Conservative PM Edward Heath. The Treaty of Accession came into effect on 1 January 1973 alongside similar treaties with Denmark and Ireland.[vi] In February 1974, Wilson returned to power after the victory of the Labour Party in the British general election. He himself had sought British accession to the EEC in 1967, during his first tenure as Prime Minister. He severely criticized the compromises accepted by his successor, Edward Heath, when the Treaty of Accession was ratified in 1972. Therefore, he immediately called into question the terms for the United Kingdom’s accession to the EEC.[vii] As a consequence, on 5 June 1975, a referendum was held on whether the United Kingdom should remain part of the Community. The British people voted to stay in by 67% to 33%.

The Referendum: Leave or Remain

The UK was in the first wave of new entrants to join the original members of the European Community on 1 January 1973 (with Denmark and Ireland) — and it is set to be the first to leave on March 29, 2019, due to the referendum that was held on 23 June 2016, where on the question “Should the United Kingdom remain a member of the European Union or leave the European Union?”, almost 52% of the British people opted for “Leave” while only 48% chose “Remain”.[viii] The referendum map shows that the Scots and the Northern Irish, as well as the metropolitan areas of England, voted to stay in the EU, whereas peripheral England and Wales voted for leaving.

The reasons that lead the UK to leave are divergent. On the one hand, many people asserted that this referendum represented an imperial throwback.[ix] The UK became “just another European power” after accession and there was no possibility to be the first in the presence of France and Germany. In spite of its influence in the EU by being the driving force behind the creation of the Single Market, free trade policy and the enlargement process, the UK never fully matched the political influence of France and Germany, although it was, alongside them, one of the “big three” of Europe.[x] Therefore, the main slogan of the Leave campaign, “Take back control” had a resonance that the Remain campaign, based on economics, could not match.[xi] Moreover, the Leave campaign asserted that regaining the sovereignty of the UK was essential in order to “put in place our own policies and laws on our economy, including industry and energy”; “to improve the UK’s position as the fifth largest economy in the world by taking back control of our finances and trade deals. Britain is now in a position to dictate trade agreements with the rest of the world”; to “stop sending £350 million every week to Brussels and instead spend it on the UK priorities.”[xii] In their eyes, Brussels was bureaucratic, arrogant, wasteful, undemocratic, with a desire to control the British people in agriculture, judiciary, and government. Further, leaving the EU could solve one of the main issues – migration – by telling Europeans and Asians to pack up now and go ‘home’.[xiii] Thus, the opinion that “a better, friendlier relationship with the EU is much safer than giving Brussels more power and money every year” has emerged.[xiv]

It is remarkable that British people were not aware of the question of the referendum. Specifically, the meaning of Brexit and even the meaning of the EU. According to Google, Brits were searching the following information: “What is Brexit?", “What is the EU?”, "what happens if we stay in the EU?", the day after they voted for leaving. However, due to all the above-mentioned reasons and the unawareness of the people, the UK is leaving, but there remains a big question – how and by what terms?

The Right of Withdrawal

Just as nobody speaks about divorce on the wedding day, the European Economic Community had no desire to declare withdrawal rights since its establishment, nor has the European Union thought about it till the entry into force of the Treaty of Lisbon in 2009. One might notice that the conditions of withdrawal are enshrined in international law, particularly under Article 62 of the Vienna Convention that says “a state can withdraw from a treaty only, if there is a fundamental change of circumstances, which have occurred in relation to those existing at the time of the conclusion of that treaty”.[xv] Its Article 59(1)(a) also says that “A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and [it] appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty.” However, since 2009 the procedures of withdrawal from the EU have been governed by a separate EU law provision which specified the generally applicable rules of international law. According to Article 50 of the Treaty on European Union (TEU), “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”[xvi] State sovereignty in this context is very broad because of the rule which does not require the state to give any formal reason for its decision. It is satisfactory that the state notifies the European Council of its intention to leave the Union. As a consequence, ‘the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union’.[xvii] As it is known, no country has left the EU before.[xviii] The UK will be the first country to leave by the terms offered: either through a well-negotiated withdrawal agreement or without any deal.

The Withdrawal Agreement

The Withdrawal Agreement (WA) on the future relationship between the UK and EU was endorsed by leaders of both parties on 25 November 2018. The British government has to lay these terms before the Parliament ahead of the parliamentary debate and vote on the approval of the document which sets out the terms of the UK’s smooth and orderly exit from the European Union, somewhat like the “terms of divorce” covering an economic partnership, a security partnership, and agreements on areas of shared interests. The Majority of British lawmakers are against the deal due to various reasons. For instance, the Parliament says that the UK shall leave the Customs Union and shall be able to diverge from EU regulations, while the WA would see the UK remain in the Customs Union as a non-voting country. According to the WA, Britain will collect customs duties for the EU as they do now and allow the EU to decide their trade policy with no right to be consulted or to vote on any trade remedies it sees fit to take. This means that during the transition period, the Brits must follow all EU rules for “goods placed on the market”,[xix] a market the UK will not participate in. It is worth noting that none of the EU competences appeared in Brussels without the legitimation of the UK,[xx] but the WA promises a different reality. Moreover, the MPs also argue that they need to take back control over the British money, but the agreement provides that the UK must apply EU law on VAT, customs duties, excise and indirect taxes, and provide funds to the EU budget in accordance with the current budget plan until December 2020. This sum has been generally estimated at £39 billion. It is money for nothing.[xxi]

One of the most painful articles of the WA is Article 127, which says “Union law shall be applicable to and in the United Kingdom during the transition period,”[xxii] and Article 86, saying “The ECJ shall continue to have jurisdiction in any proceedings brought by or against the United Kingdom before the end of the transition period,”[xxiii] while MPs believe that Britain has to be an independent nation and leave the jurisdiction of the ECJ and restore the supremacy of national courts. Additionally, there is no possibility of “membership without accession” or “unfinished integration” like Switzerland or Norway, but one might note that the British case is different, because the Swiss and Norwegians are hesitating and are still before the “wedding ceremony”, whereas the British are already after the divorce. Therefore, the atmosphere in the family is different in these two situations.[xxiv]

It is not arguable that Mrs. May’s cabinet is largely ready to accept above-mentioned terms in order to secure a deal by March and provide some reassurance to businesses. Theresa May says that “Brexit means Brexit,” and she is going to deliver the will of the British people. For that, her Brexit deal needs the backing of 320 lawmakers, more than half of the 639 MPs that vote in Westminster. If no Withdrawal Agreement can be agreed upon, the UK becomes a ‘third country’—this is the ‘no deal’ scenario.[xxv] Further, no deal means uncertainty about the protection of the more than 3 million EU citizens in the UK, and over 1 million UK nationals in EU countries to continue to live, work or study as they currently do, while the WA could offer guarantees for them. Another essential topic is the Irish “hard border”. Right now, the border between the Republic of Ireland and Northern Ireland is open. If the UK leaves without the deal, everything turns upside down by establishing a “hard border” with checkpoints, border crossings and other infrastructure. These could seriously slow trade and other economic activity.[xxvi]

Despite readiness of the May’s government of the unfavorable terms of the WA for the UK, on 15 January 2019 May’s Brexit deal has been rejected by the House of Commons. It was the largest defeat for a setting government in history by 230 votes. (The deal was voted down 432 to 202 in the House of Commons). It truly shows how unpopular is the Brexit deal for MPs due to above-mentioned reasons and due to the fact that in their eyes this is not what British people voted for in the referendum. Former foreign secretary and leading Brexiteer Boris Johnson said it was a “bigger defeat that people have been expecting” – and it means the deal is now “dead”. Consequently, due to the biggest failure, not only Labour leader Jeremy Corbyn, but also many British lawmakers have tabled a vote for no confidence in the government. Therefore, all in all, we could have with this government or new one a no deal scenario, a second referendum, a general election, remaining in the EU or it is not excluded to stop “the clock of the Article 50” in order to be achieved a better deal.

*   *   *

To conclude, I would say that ending 43 years of marriage is not as easy as the Brexiters thought it would be, because the EU is more developed in all aspects, the Single Market is more effective, the role of the European Court of Justice is crucial in the European integration and in those circumstances the Brits face a hard obstacle in which no one knows exactly how to break the deadlock. As Antony Hilton argued “Brexit is not about economics, it is about the kind of country people think they want to live in and the kind of people they think they are. It is not a factual matter, it is like faith: you believe or you don’t – and that’s why the outcome is uncertain.”[xxvii] No one knows what the British people want to do. Where the UK is heading in this time of uncertainty is unclear, but what is quite clear is that the United Kingdom is set to leave the European Union at 11:00 p.m. London time on March 29, 2019. Besides the rejection of the Brexit deal, the UK is still on course to leave on 29 March, but this defeat will define the manner of the departure.

 

For a list of references, click HERE.

Author: Giorgi Gogokhia, European and International Business Law LLM student, University of Debrecen, Faculty of Law


[ii] France, Germany, Italy, Belgium, the Netherlands and Luxembourg

[iii] Henley, J. (2016) “Britain and the EU: the story of a very rocky marriage”, The Guardian, 23 June [online]. Available at: https://www.theguardian.com/world/2016/jun/23/referendum-britain-and-the... [Accessed: 11 Jan, 2019]

[iv] Jordan, P (2018) “Charles de Gaulle – the unlikely prophet of Brexit”, the Queen Mary University of London, 27 June, [online]. [Accessed: 11 Jan, 2019] Available at:

https://www.qmul.ac.uk/media/news/2018/hss/charles-de-gaulle--the-unlike...

[v] Troitiño D.R., Kerikmäe T., & Chochia A. (Eds.). (2018). Brexit History, Reasoning and Perspectives. Springer, V.

[vi] Norway also applies, but it does not join, after a referendum on membership was failed

[vii] CVCE.EU, (2017) “The United Kingdom's accession to the EC”, [online]. Available at:

https://www.cvce.eu/en/education/unit-content/-/unit/dd10d6bf-e14d-40b5-... [Accessed: 11 Jan, 2019]

[viii] Bloomberg, (2016). “EU Referendum: Final Results.” http://www.bloomberg.com/graphics/2016-brexit-referendum/ [Accessed: 12 Jan, 2019]

[ix] Jack, I. (2017) “The big white men of Brexit are a throwback to Britain’s imperial past”, The Guardian, 28 January https://www.theguardian.com/commentisfree/2017/jan/28/white-men-brexit-britain-imperial-past [ 12 Jan, 2019]

[x] Hughes, K. (2016) “UK Spirals into Political Crisis after EU Vote”, Economic & political weekly, Vol. 51 (25).

[xi] Ibid. See, reference n7 above, VI.

[xii] Ibid.

[xiii] Shobha, D. (2016) “Why did Britain opt for Brexit?”, The HINDU, 12 July. https://www.thehindu.com/opinion/op-ed/Why-did-Britain-opt-for-Brexit/ar... [Accessed: 12 Jan, 2019]

[xiv] Ibid. reference n7. 215.

[xv] The Vienna Convention on the Law of Treaties, Article 62.

[xvi] The Treaty on European Union, Article 50.1

[xvii] Ibid, Article 50.2 Also, that agreement shall be negotiated in accordance with Article 218(3) of the TFEU.

[xviii] If we does not count Greenland, which was the part of Denmark and left the EU in 1982 (Denmark stayed).

[xix] Briefings for Brexit, (2018) “The Seven Deadly Sins in the draft Withdrawal Agreement”, available at:

https://briefingsforbrexit.com/the-seven-deadly-sins-in-the-draft-withdr... [Accessed: 13 Jan, 2019]

[xx] Troitiño D.R., Kerikmäe T., & Chochia, A. (Eds.). (2018). Brexit History, Reasoning and Perspectives. Springer, 104.

[xxi] Ibid, reference n21.

[xxii] Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018, Article 127.

[xxiii] Ibid, Article 86. See also Article 87-89 about the ECJ jurisdiction.

[xxiv] Ibid, reference n22, 110.

[xxvi] Hughes, K. (2016) “UK Spirals into Political Crisis after EU Vote”, Economic & political weekly, Vol. 51 (25).

[xxvii] Hilton, A. (2016) “The London Evening Standard”, the Evening Standard, 25 February.

 

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