The EU is dead - long live the EU!

1. The referendum result has delivered a nominal body blow to the EU. The dream of a United Europe is over and the fear for the EU must be whether a metatasis of an anti-EU cancer will ultimately lead to a collapse of the Union and a return to complete autonomy amongst member states. This initial fear is contradicted by reports that one consequence of the vote in favour of Brexit has been a surge in support for the EU in other EU member states such as Denmark, Sweden and Italy previously identified as being Eurosceptic. The reason, it seems, is a perception that Brexit has led to uncertainty and the notion of a gamble.
   
   
2. The EU may take some comfort from the Remain votes in Scotland and Northern Ireland. England and Wales appears as an anti-EU enclave separated from the rest of the UK. Even in that enclave slightly over 48 per cent voted to remain. Indeed one commentator has decribed the outcome of the referendum as a 2-2 draw. Angus Robertson MP has referred to a 'fault line' in the UK as far as Brexit is concerned.
   
   
3. Although the end of a love affair is sad, there may be relief in some quarters that the unrequited love of the EU for a clearly recalcitrant member state is over and the charade need no longer continue. Jean-Claude Juncker has stated that it was 'not an intimate love affair'. The lyrics to that great Gloria Gaynor hit cannot help but permeate the conscience - 'Go on now walk out the door/just turn around now/'cause you're not welcome anymore/weren't you the one who tried to hurt me with goodbye/Did you think I'd crumble/Did you think I'd lay down and die/Oh no, not I. I will survive' Or as President of the European Council, Donald Tusk, commented in imparting a piece of patriarchial wisdom ' What does not kill you makes you stronger'.
   
   
4. At this stage an informed analysis of the likely outcome of the negotiation process is nigh impossible. It looks as though there may be a deal allowing continuing access to the single market with modifications to the 'fourth freedom', i.e. free movement of persons, to suit the requirements of the UK. The working model is likley to be that of Norway or Switzerland. The EU is however likely to be resistant to a compromise of the fourth movement principle for fear of setting off copy cat responses in other member states. 
   
   
5. This is no more than speculation at the present time. There may be circumstances in which a second referendum on UK membership may take place. A second 'in/out' Referendum can almost certainly be ruled out. The EU Referendum Act 2015 set the rules for the Referendum. Those rules were abided by and a clear result returned. However it is possible to conceive of a second Referendum, for example, on the terms for the UK retaining access to the European single market after Article 50 negotiations have ensued. The position of Scotland and whether it will and can seek to retain membership of the EU whilst remaining part of the UK is in the air.
   
   
6. There are other issues regarding the triggering of Article 50 and whether parliamentary approval is required for this. Reports at the time of writing suggest that Mischon de Reya is representing a number of clients on the  basis that the consent of Parliament is required before Article 50 may be triggered. The position they are taking is that an attempt to invoke Article 50 without the approval of Parliament would be unlawful. Article 50 on its express words states that 'A member state may decide to withdraw from the Union in accordance with its own constitutional requirements'
   
   
7. This begs the question what those constitutional requirements are. As neither the United Kingdom nor any other member state has previously invoked Article 50 it might be thought that there is something of a  lacunae in this regard. However Lord Pannick QC has argued in an article in The Times that in the UK there is a constitutional requirement that legislation can only be altered by another Act of Parliament. Some go further and argue that for the Government to invoke Article 50 without the approval of Parliament would be unlawful.
   
   
8. There are technical arguments of constitutional law as to whether the making of an Article 50 notification forms part of the Royal Perogative and, if it does, whether such Perogative may be used in respect of matters that are already dealt with by an existing Act of Parliament. Since invoking Article 50 would require new legislation repealing the European Communities Act 1972, it is argued that approval of Parliament is required for the Article 50 process to be triggered.
   
   
9. Against this it is argued that Article 50 merely affects relations between the member states and does not inexorably lead to a repeal of the 1972 Act and that in any event the outcome of the negotiation process would need to be put before Parliament for approval. Lord Pannick opines that the crucial point as a matter of law is that an Article 50 notification commits the UK to a withdrawal from the EU and that Parliament would be powerless to prevent withdrawal thus frustrating the 1972 Act. The short answer, as Lord Pannick himself acknowledges, is for Parliament to enact legislation to permit the Article 50 process to be invoked. 
   
   
10. Some fruitful work for constitutional lawyers lies ahead, however it is hard to envisage a situation in which the 'democratic will of the people', however distasteful to the majority of Parliamentarians. is frustrated before the courts.
    
    
11. Whatever procedures are needed to get the UK there, on balance it would seem that we are looking at a future which involves the UK having a form of associate arrangement with the European Union, involving access to the European single market, downgrading from the current full membership. This is the 'Brexit-lite' option to which some commentators have referred, or to the UK having a 'semi-detached' relationship with the EU. When the Prime Minister comments, as she has, that 'Brexit means Brexit' this does little to assist an informed assessment of the result of the negotiation process. There are various scenarios for Brexit.
    
    
12. At Europa law we continue to serve our client base within the EU member states. As for our clients in the United Kingdom, it is business as usual before and during the Article 50 trigger period. We shall of course be monitoring developments as they occur and providing key information and knowledge for the post-Brexit world and the effect of deals that are struck on key areas of contract, commercial Law and civil procedure.
    
    
13. For those involved in transactions and disputes with parties in other EU member states the current rules will continue to apply until new deals are struck or we reach a position in which our dealing with EU members states are conducted on the same basis as our dealings with non-EU member states.
    
    
14. Amongst our services we provide programs in EU cross border law and practice and the enforcement of civil and commercial judgments in Europe. These will continue to provide our clients with essential knowledge in these areas. As the infrastructure landscape between the UK and the EU changes we shall respond with the products and services we provide. We also provide programs and other services on key areas of English law unaffected by events in Europe.
    
    
15. A changing legal landscape on the scale the UK faces over the next few years offers enormous opportunities for our clients and we look forward to supporting and working with them in the coming years.

Graeme Wood

Director – Europa law