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Michael Dougan is Professor of European Law at the University of Liverpool.  He specialises in EU Law, particularly EU constitutional and institutional law, legal relations between the EU and its Member States, the law of the Single Market, and free movement of persons / EU welfare law. Michael also contributes to wider public and political debates about European law: for example, providing advice to UK government departments, parliamentary committees and EU institutions.  Michael is Joint Editor of Common Market Law Review.  He was awarded a Jean Monnet Chair in 2006. 

UKAEL Annual Lecture, 7th December 2016
“Brexit Means What? The UK Outwith the EU and the EU Without the UK"
Professor Michael Dougan


Thanks very much to UKAEL for the invitation to deliver this Annual Lecture.  Needless to say: it is an enormous honour and privilege.
 
And yet it is also a rather difficult task, because when it comes to discussing the UK’s withdrawal from the EU, one finds a rather odd contradiction at work: there is (at the same time) both far too much to cover; yet precious little to work with.
 
Far too much to cover because what 51.9% of those who voted on 23rd June decided to do – and the Government has decided to endorse, though not yet Parliament – was to throw the entire puzzle of our national life up into the air – every single piece representing a sector of the economy, or some element of social policy, or a facet of our international relations, or some fundamental political value or outlook.  All of them are now drifting through space, in a state of slow motion pandemonium, waiting to fall back to earth and find their new configuration (if indeed, they still find a home here at all). 
 
Yet there is precious little to work with because – so far – what have we got?  Beyond the 260 or so words of Article 50 TEU; a couple of High Court rulings on the royal prerogative; the Bratislava Declaration of the EU27; and a decision changing the rotating presidency of the Council.  For the rest – there is just uncertainty, confusion, and contradiction.
 
So: what can I usefully say that hasn’t already been said in 1,000 blogposts?  I propose offering a few brief comments on three key issues:
 
The forthcoming negotiations between the UK and the rest of the EU about withdrawal and the framework for mutual relations into the future
 
The impact of withdrawal from the EU upon the UK legal system: how might leaving the EU change the way that UK law operates and evolves?
 
The impact of UK withdrawal upon the EU’s own legal order: how might the UK’s departure influence the future operation and evolution of EU law?
 
General Context of UK-EU Negotiations
 
On the one side, we already know something about the EU’s basic position: they are currently waiting for the UK to initiate the withdrawal process and set out its vision for the future.  At that point, the EU will then assume its natural role as the dominant player in the negotiations.  But even now, it is possible to identify 3 main sets of limits to what the EU can possibly offer / agree to:
 
1) legal limits to what the EU can offer.  In particular, the Treaties prescribe the relevant decision-making procedures to be followed in the event of withdrawal.  In addition, the Treaties lay down various fundamental constitutional principles, e.g. conferred powers, e.g. respect for fundamental rights – which will also need to be respected in the course of finding any agreement.  The EU simply cannot agree to demands which it has no power to fulfil. 
 
2) technical limits to what the EU can offer.  Participation in a whole range of EU policies and programmes presupposes integration into a particular set of institutions, processes, rules and frameworks.  If a country is not prepared to accept those disciplines, it cannot participate, or at least not on such favourable terms.  That is most obviously true as regards the Single Market (covering everything from toy safety to medicines and chemicals as well as financial services).  But it is also true as regards other important forms of cooperation, e.g. social security coordination; police / security / intelligence cooperation. 
 
3) political limits to what the EU can offer.  Many Leave campaigners speak as if only the UK has national interests and the right to defend them.  Every country has national interests and every country is entitled to defend them.  That is true in Europe both individually for the Member States and collectively through the EU institutions.  In particular, there is an obvious “bottom line” for the EU27 acting as a whole, i.e. that they cannot offer the UK any better deal outside the EU, as the UK enjoyed within the EU - because to allow “cherrypicking” or other forms of political blackmail would undermine one of the key foundations on which the entire system is built.  That is not “vindictive” or “punitive”; it is rational self-interest of the sort that is entirely to be expected in a major international negotiation. 
 
On the other side, we also know something about the UK’s basic position.  Our starting point in June 2016 was hardly promising: there was a lamentable lack of any political consensus or vision; a shocking lack of proper bureaucratic or diplomatic preparations and capacity; indeed, a lack of proper understanding of the undoubtedly complex and often contradictory motivations behind the leave vote. 
 
Those factors have all contributed to inherent uncertainty and tensions in attempting to formulate a coherent national position.  And worst of all: it appears that that void at the centre of national policy is being occupied by essentially ideological considerations - Leave campaigners who are (by turns) deeply ignorant about key issues; deeply arrogant about the UK’s negotiating position; and in many cases simply unwilling to believe that there are any potentially negative consequences to their actions.  Worst of all: there are those who are positively nihilistic about the future – delighting in the damage that their agenda is capable of doing to the EU and its Member States. 
 
As a result: the UK negotiating position often appears chaotic, confused and hobbled from the outset by populist concerns and red lines about issues such as “sovereignty” and “immigration”. 
 
Against that rather unpromising general background, let’s now look at the withdrawal process in greater detail.
 
Article 50 TEU provides that a Member State can decide to withdraw from the EU in accordance with its own constitutional requirements.  Once we know what our constitutional requirements actually are: we will notify the European Council of our intention to withdraw and the EU will then seek to reach a “withdrawal agreement” with the UK (though the Treaty explicitly envisages that no such agreement is eventually concluded).  That withdrawal agreement has to be approved by the UK (on the one side) and by the EU (on the other side).
 
Article 50 TEU further provides that the Treaties will cease to apply to the UK from the date of entry into force of the withdrawal agreement; or “failing that” (a strange and unhelpful form of words) 2 years from the date of the UK’s original notification – unless the 27 other Member States plus the UK agree unanimously to extend that 2 year period for our benefit. 
 
And that’s all that Article 50 says.  Like most treaty texts, its leaves open various important questions.  Some of those are now being answered by political practice: for example, notification must be formal, it cannot be implied; and until formal notification, there can be no negotiations about the terms of withdrawal.
 
But other questions remain cloudy – of which the most important is whether notification is a one-way ticket?  Or can a Member State either make its initial notification conditional upon certain future hypotheses; or rescind its initial notification, if it subsequently changes its mind?  Although we can speculate, in reality, the answers to such questions are as much political as legal.  We should be careful not to overestimate the role of law in such difficult and indeed momentous political circumstances: often, law just has to catch up with real events.
 
But one thing at least is pretty clear: the withdrawal agreement provided for under Article 50 is not the same as any agreement on future relations between the UK and the EU.
 
The withdrawal agreement is about the nuts and bolts of leaving the EU.  It is not about establishing a new relationship between the UK and the EU for the future.  That will be an entirely separate treaty – legally, institutionally, procedurally.  And unless we plan to cut any meaningful ties of cooperation with the EU, any future agreement on trade, migration, the environment, security etc, will almost certainly take a lot longer than 2 years to negotiate and ratify.
 
Nevertheless, although the withdrawal agreement and future framework agreement are separate and distinct, they are still closely interlinked with each other.  After all, Article 50 TEU specifically states that the withdrawal agreement should be negotiated having regard to the framework for future relations.  Rightly so: after all, if the UK wants a close and ambitious future relationship with the EU, then the terms of withdrawal are going to be different than if the UK wants only a shallow or narrow future relationship (or none at all).
 
So: on a minimalist view, the basic focus of the Article 50 agreement will be on issues such as the EU budget (we need to address UK contributions and UK receipts); staffing (dealing with EU officials and judges etc of British nationality); and infrastructure (dealing with offices, agencies, diplomatic representatives etc).
 
But there are at least three additional issues which may well be addressed in the context of the Article 50 agreement.  Not only are those issues more complex and politically sensitive.  In addition, they could have important implications for the procedure for negotiating and concluding any withdrawal agreement under Article 50 TEU. 
 
First: the status and treatment of migrants (natural and legal persons) who are exercising a variety of free movement rights at the point of withdrawal and would thenceforth be treated as third country nationals (or companies).  The relevant issues are myriad: continuing / future residency status; continuing / future employment rights; continuing / future rights to operate a business; social security rights – both acquired and future; broader rights relating to social treatment; the ownership and use of property etc.  This is obviously both very technical and yet highly political.
 
Secondly: the possibility of making appropriate transitional arrangements to help bridge the gap and minimise serious disruption between the UK’s withdrawal and the conclusion of any future framework agreement.  Such arrangements might seek to extend cooperation or equivalence in fields such as the Single Market, environmental cooperation, financial sanctions, access to intelligence databases, the European Arrest Warrant / extradition procedures etc. Again: these issues are both very technical and highly political.
 
Thirdly: taking initial decisions about the implications of UK withdrawal for existing international agreements between the EU and third countries / international organisations.  E.g. as regards the WTO: will the UK be entitled to a share of the EU’s export quotas?  E.g. as regards agreements with third countries that were concluded by both the EU and its Member States: what might be the status of the UK in relation to those elements of the agreement which cover purely national competences?  Once more: such issues are both very technical and highly political.
 
Each of those issues is very difficult in its own right.  But they are of constitutional interest because they also raise some important procedural questions.  In particular: withdrawal negotiations / agreement on all such issues have the potential to touch upon the national competences of the Member States.  That automatically raises the question of whether the Article 50 TEU agreement can be concluded solely by the Council and European Parliament, in accordance with the procedure explicitly set out in Article 50 itself; or whether the Article 50 TEU agreement might still qualify as a mixed agreement which will also require full national ratifications as well?
 
On one view: Article 50 TEU has ousted the ordinary possibilities of mixity; the Member States have delegated to the Union institutions sole power to negotiate and conclude the withdrawal agreement, even as regards subject matter covered by shared competence.  If so: questions like the situation of current migrants or making appropriate transitional provisions could be dealt with under the Article 50 withdrawal agreement, in accordance with the Article 50 procedure alone.  There would be no possibility of mixity; and no need for a gaping hole in the continuity of cooperation.  
 
A second view is that Article 50 TEU cannot displace the normal division of competence between the Union institutions and the Member States as regards international agreements, so the withdrawal agreement is capable of being a mixed agreement in accordance with the ordinary principles of EU external relations law. Thus: the Member States retain their right to assert the prerogative of national ratification as regards issues covered by shared competence.  If so: to deal with issues such as current migrants or transitional provisions under Article 50 would imply the possibility of mixity; but (assuming smooth ratification, despite the more onerous procedural requirements involved) at least it need not create a serious rupture in the continuity of cooperation.
 
A third view is that Article 50 TEU cannot involve a mixed agreement, since the Treaty clearly seeks to deny any Member State the possibility of a veto over the withdrawal agreement.  But nor can Article 50 TEU expand Union competence at the expense of Member State competence – which means that the withdrawal agreement cannot deal with issues falling within national powers, precisely such as current migrants or transitional provisions.  Instead, such issues would need to be dealt with (if at all) in a separate “transitional agreement” concluded outside the context of Article 50.  That would be a mixed agreement; and it would involve a more serious gap in the continuity of cooperation, i.e. for as long as it takes to negotiate and ratify any separate transitional treaty.  As for the WA itself: it would be reduced to a rather narrow and more technical affair (though still potentially acrimonious, since anything involving money has the potential to be acrimonious).
 
In short: the Article 50 withdrawal agreement involves various legal and political issues but also raises some important and difficult constitutional questions.  Yet there are no clear answers.  The issues will need to be worked out by the main political actors and – ultimately – perhaps also be the Court of Justice. 
 
What, then, about any future agreement with EU?  Here, I will make four basic points. 
 
First, in the absence of any special agreement, the UK situation will be as any other third country.  E.g. as regards trade: relations will be subject to the ordinary (and substantially less favourable) rules of the WTO agreements.  When it comes to reaching a special agreement, there are two main “models” for negotiating a degree of privileged access to the Single Market as a non-EU Member State: Norway (the European Economic Area Agreement) and Switzerland (extensive bilateral trade agreement/s).  
 
On the one hand, the UK is obviously not comparable to either Norway or Switzerland, least of all in terms of its relative economic size and diversity.  The UK will surely seek to negotiate its own deal.  On the other hand, the UK will be negotiating on its own against (what will still be) one of the largest and richest trading blocs in the world.  We need to be realistic – much more realistic that certain UK politicians currently appear to be.  Not least because the UK cannot simply wish away the inherent problems of international trade, especially the challenge of tackling regulatory barriers to cross border trade in goods and services.  And also because the UK will not be trying to gain market access; it will be trying to minimise the loss of market access.  So the question is not about securing a good trade deal, it is about securing the least bad trade deal.
 
Secondly: regardless of what happens with the withdrawal agreement under Article 50, any agreement on future cooperation is almost certain to be a mixed agreement, and so to require not only the approval of the EU institutions in accordance with their decision-making powers under the Treaties; but also national ratification by every Member State in accordance with its own constitutional requirements.  Here, we should recall the experience of the Ukraine association agreement, i.e. where the Dutch referendum highlights the potential role of populist agitation; or the experience of CETA, i.e. where the actions of the Wallonian Parliament highlight the important role to be played also by sub-national parliaments.
 
Thirdly: what will be the full scope and content of any future agreement?  Obviously it will address trade relations covering core single market issues such as goods, services, capital and persons.  But what about associated policies?  Both direct, e.g. competition, public procurement and state aid; and indirect, e.g. environment, consumers, workers.  And what about broader cooperation?  E.g. as regards fisheries, police and security.  And what will be the institutional and judicial framework for any future agreement?  E.g. what sort of political decision-making bodies will the UK suggest or agree to?  What sort of judicial system / dispute resolution mechanism will the UK advocate or be prepared to accept?
 
There seems to be little understanding, among UK leave campaigners, of the sheer range and complexity of the issues that need to be addressed to the satisfaction of both sides.  And little appreciation of the simple fact that international cooperation involves a balance of rights and obligations – including participation in political and judicial frameworks that condition and constrain national autonomy. 
 
Fourthly: even if they are not direct models, nevertheless we can learn some key lessons from the experience of Norway and Switzerland. 
 
E.g. formally, being outside the EU may look like having greater regulatory independence; but in practice, privileged access to the Single Market simply means accepting the EU’s own rules without having had any opportunity to shape or influence them.  E.g. for privileged access to the Single Market to be meaningful, the EU will insist on mechanisms for keeping national law and practice aligned to EU law and practice - including updating legislation, following caselaw, securing application and enforcement.  E.g. the EU does not hand out privileged access to the Single Market without guaranteeing conditions for fair competition – which means signing up to a whole range of additional EU policies regarded as essential to the smooth functioning of the Single Market per se, such as consumers, environment, workers.  E.g. when it comes to the free movement of persons, the EU’s attitude has been unyielding: if the UK wants to make migration a make or break issue for its future relations with the EU, it could scupper any negotiations over a new trade relationship which seeks to preserve a significant degree of participation in the Single Market.  E.g. privileged access to the Single Market carries a membership fee: you pay to be a passive consumer of EU law.
 
So basically: the economically least disruptive models are also the least likely to secure political support within the UK.  It feels likely we will not only leave the customs union, but also walk away without privileged access to the Single Market – either falling back upon basic WTO trading conditions or (at best) eventually securing a more limited bilateral trade agreement which governs trade in goods and provides for a degree of cooperation in the field of services.  Either way, that would mean that large parts of the UK economy – particularly in the field of services – will have to adjust to a significantly less favourable regulatory environment for the conduct of cross-border commerce.
 
That’s our first issue: relations between the UK and the EU, in the short term and in the longer term.  Let’s now turn to our second main issue:
 
Implications of withdrawal for the UK legal system
 
Here: for want of time and specialist knowledge, I’m going to deliberately overlook the issues around devolution (be it Scotland, Northern Ireland, Wales or indeed the future of English governance); let alone the position of Gibraltar or the UK’s overseas countries and territories, whose rights and privileges are also going to be significantly affected by withdrawal. 
 
Instead: I’m going to deal with UK law in a rather broad brush sense, taking as my starting point the rather obvious fact that, for over 40 years, the UK legal system has evolved under the influence of and in combination with EU law.
 
Withdrawal presents two important tasks:  
 
1) preparing the legal system for withdrawal without creating damaging legal vacuums or undesirable legal uncertainty.  The aim here is to preserve continuity and predictability, so to safeguard the finality of public decisions and guarantee the stability of private relationships.  
 
2) taking more substantive decisions about which aspects of our EU legal heritage will remain part of the UK legal system; which will be removed; which will be reformed and, if so, in what ways.
 
Taken together: these twin tasks are vast and complex.  But they also involve fundamental policy choices which will affect every aspect of national life.  It is clear that leaving the EU is as much about transforming our own national legal and political system as it is about actually leaving the EU.
 
The question is: how do we go about these twin tasks?  The Government has indicated that it favours addressing the task of preserving legal continuity and legal certainty, by incorporating existing EU rules into UK law at the point of withdrawal (ironically, in a Great Repeal Bill); but then leaving the task of making substantive decisions about which parts of EU law we really want to keep / amend / axe, for future parliaments and governments in the months / years / decades after withdrawal.
 
This is presented as a simple solution: deal with the form now; worry about the content at some point in the future.  But of course, this will still be a very large and complex task; and it will still entail an important and sensitive range of policy choices.  For example:
 
- which EU rules will still be relevant to the UK after withdrawal?  We’re not just talking about rules on olive oil or feta cheese.  Rather: we’re thinking about the myriad EU rules which are predicated upon systems of cross-border cooperation between national authorities, i.e. where national decision makers in government / the civil service / the judiciary form part of a European network of cooperation, mutual recognition and mutual enforcement - enabling them to address cross-border challenges and problems in a way which simply isn’t possible for an individual country acting on its own / outside those frameworks of cooperation.  Such questions arise across the entire legal system, e.g. toy safety, IP protection, emissions trading, cross border pension coordination, police intelligence sharing.  In each and every case: we will have to decide whether the applicable EU rules can serve any useful purpose on their own; and if not – what can the UK do about it acting alone?    
 
- which bodies will exercise decision making powers that are currently conferred upon EU institutions / bodies / agencies?  EU rules confer decision making powers upon a whole range of institutions / bodies / agencies across a wide variety of policy fields, e.g. anti-dumping duties, e.g. medicines regulation, e.g. freezing of terrorist assets.  Who will exercise those powers in the future?  Will there be direct political control?  Or will it be delegated to independent / autonomous agencies? 
 
- what happens if the relevant EU rules change, i.e. because the EU itself adopts new legislation or amends its current rules?  Will the UK stick with the old rules, even though they may no longer be fit for purpose?  Will the UK somehow automatically follow the new EU rules as well, in which case, the EU would be acting as de facto legislature for important parts of UK legal system?
 
- there will still be whole policy fields where legal continuity / legal certainty cannot be preserved simply by “incorporating” existing EU law into national law.  The UK will have to design a whole new legal framework to govern public and private conduct, e.g. most obviously in fields such as agriculture and fisheries.
 
- for all those reasons, it seems clear that even this “simple solution” will require a comprehensive review of the legal system, entailing complex technical work but also important policy choices.  Who will be responsible for this?  Despite the fact that the Prime Minister in Birmingham said any changes in the law will be subject to full scrutiny and proper parliamentary debate, it is still hard to see how this task can realistically be done without a very significant delegation or deferral of power by Parliament to the Executive.  We don’t yet know what shape the Government’s proposed legislation will take, so we have no clear idea how much discretionary power the Government will seek to claim for itself: not only to make choices about what to incorporate / what to leave out; but also to make choices about what should be amended / in what ways; and indeed, whether such powers will be available even after withdrawal, not just in preparation for it.  In short: even this “simple solution” raises important questions about the balance of power between parliament and executive; and thus about the democratic accountability and legitimacy of the process.
 
In any event: where does that leave the future task, i.e. making substantive choices about which parts of our EU legal heritage remain incorporated into UK law, which should be scrapped and which should be amended and if so how?
 
We need to accept that this is a matter of uncertainty and speculation, but basic legal and constitutional principles allow us already to make some important observations.  These can be summed up in the idea of “de-Europeanisation”, i.e. what might it look like to undo 40 years of legal co-evolution between the UK and the EU?  Here, let’s just make a few points.
 
- UK withdrawal will see the “repoliticisation” of policy fields which EU membership had (often quite consciously) sought to “depoliticise”.  One of the consequences of EU membership is that the Member States agreed collectively, that certain policy choices should be relatively insulated from the day to day battles of ordinary left wing / right wing political contestation and should instead be determined through more independent / objective / evidence based processes (though still under the collective scrutiny and accountability of the Member States and the European Parliament).  E.g. competition and state aid control.  E.g. the allocation of research and structural funds.  Leaving the EU means that such policy fields / choices will once again be open entirely to the preferences of whichever government is in power – unless we decide to entrust such decisions to more independent / autonomous agencies of our own, in which case, which ones?
 
- the legal framework for such “repoliticisation” will change most strikingly in those fields where EU law currently provides a safety net below which the Member States are not permitted to deregulate.  The Single Market is based on the idea of competition which is free but fair.  Member States shouldn’t compete with each other on the basis of axing basic standards of protection for the environment, workers or consumers.  So EU law sets minimum standards of protection in those (and other) fields, to ensure that competition and market forces cannot undermine basic social and welfare standards.  Again: leaving the EU means that those safety nets for the environment / workers / consumers will disappear.  It will be open to future governments, if they so wish, to deregulate them. 
 
- deEuropeanisation isn’t just about deciding which rules we should keep / amend / reject.  It also implies important changes to the methodologies and cultures of our legal and political institutions; to the efficiency and effectiveness of our regulatory and problem solving capacities; and at a more fundamental level, to the balance of power between our legal and political actors; as well as between concentrations of public and private power within our economy and society.  E.g. EU law has made important contributions to the legal tools available to domestic courts, when it comes to interpreting legislation (such as consistent interpretation) and developing new legal principles (such as effective judicial protection).  Such tools have provided important protections for individuals – against the overwhelming power of the state, against the commercial power of major corporations, or simply to avoid obvious hardship / injustice.  What will happen to those tools / techniques after withdrawal?  E.g. the relationship between public and private power will also change.  After all, the EU is one of a handful of jurisdictions that has the power and will to take on major multinational corporations on issues such as anti-competitive behavior, tax evasion / avoidance and other breaches of legal obligations.  Will the UK government have the same strength, will and resilience to stand up to such major concentrations of private power? 
 
- we shouldn’t forget that all these questions about the future evolution of our own legal system are inseparable from the issue of our future external relations.  E.g. depending on the deal we eventually reach with the EU about future trade, environmental and security cooperation, we might well be obliged to adopt many of the EU’s rules, in a whole series of policy fields, just as if we were still members – but without having any real influence over the content of those rules anymore.  E.g. the UK will have to develop its own independent trade policy, when it comes to reaching bilateral deals with countries beyond the EU.  Trade policy is very technical – but it is also very political.  It involves fundamental choices about which parts of your own economic and social systems you are prepared to bargain away, in order to gain greater access to foreign markets.  All trade policies involve striking a balance between winners and losers; the balance struck by the UK in its external economic relations will have tangible and potentially significant effects upon our own legal system – influencing the choices we make about economic regulation, environmental protection, workers rights, consumer protection. 
 
In short: UK withdrawal is not just about finding a new relationship with the EU.  It is also about opening our own legal and political systems to processes of far-reaching change.  Much of that change will inevitably be a matter of deep contestation and division among politicians / stakeholders / citizens.  But much of it will also be driven / constrained by our new place in the world and the new balances of power which emerge between the UK and our international partners. 
 
 
Potential Implications for the EU Itself?
 
It is tempting to focus our attention on the challenges of withdrawal for the UK: what the June referendum means for us, what the future might hold for our own constitutional and legal system, what sort of relationships we might forge with the EU and the rest of the world.
 
But we are also interested in the impact of the UK’s future withdrawal upon the remainder of the EU itself, i.e. the specific constitutional and institutional system established under the Treaties.  That brings us on to our third and final topic. 
 
It is useful to begin by recalling that the situation of the UK is not the only, or even necessarily the most important, of the big challenges confronting the EU.  The Union continues to find itself facing several major policy crises: safeguarding the stability of the single currency and finding a stronger path towards economic growth; dealing with the migration crisis, especially during a period of difficult relations with Turkey; getting a grip on the issue of security, in the light of growing public concern about Islamic terrorism; dealing with rising Russian belligerence in the East and increasing US instability in the West. 
 
Each one of those crises is already exerting considerable pressure on the EU to adapt and reform itself – completely independently of the need to respond to the UK’s future withdrawal. 
 
Even the difficult question of what to do with the UK has perhaps become less pressing than the question of how to stop other countries falling victim to the same sort of Europhobia: we all know that various Member States are grappling with their own anti-EU or at least anti-Euro movements, most obviously now in Italy, soon the Netherlands, then France and maybe even Germany. 
 
Given all that: it becomes very difficult to disentangle the potential impact of UK withdrawal upon the EU, from much broader and more complex questions about the EU’s potential responses to a whole host of political and constitutional challenges. 
 
What we do know is that the UK referendum has given specific impetus to the desire for a coordinated reflection upon the EU’s future development.  In particular, in the immediate aftermath of the UK referendum, the leaders of the EU27 decided to initiate their own reform agenda: through their joint statement shortly after the UK referendum result, then the Bratislava statement of the EU 27, now we watch out for the results of Malta and Rome in 2017. 
 
But beyond that, we are faced with considerable uncertainty and left with a series of important questions to which there are no clear answers.  E.g. what issues might be on the agenda for the EU’s own reform process?  Security and protection seem to be the main common themes in the Bratislava statement.  E.g. which legal instruments might the EU27 chose, in order to deliver the desired reforms?  The Bratislava statement gives no hint of Treaty reform: its proposed initiatives are largely legislative / diplomatic / bureaucratic in nature. 
 
Notwithstanding all that uncertainty, let’s focus on a few issues which at least feel amenable to some degree of meaningful analysis and discussion, insofar as it comes to thinking about the specific contribution of UK withdrawal: 1) how far will the EU reform process incorporate / draw upon elements of the UK deal from February 2016?  and 2) regardless of the wider reform process, how can we imagine that the UK’s withdrawal per se might affect the EU’s existing institutions and policies? 
 
Very few elements of the UK deal were actually intended to be specific or limited to the UK alone; most were of general relevance and potential application to the Member States as a whole or at large.  And certain elements of the UK deal enjoyed the enthusiastic support of other Member States, even if they were agreed through more gritted teeth by other countries. 
 
So: will certain elements of the UK deal be resuscitated within the EU27’s future reform process? 
 
E.g. consider the new set of principles to govern the relationship between the single currency and the single market.  The UK was the chief driving force behind this, but it remains of potential relevance to a significant number of other countries (not least Denmark and Sweden). 
 
E.g. consider the new red card powers, as regards the principle of subsidiarity, for national parliaments.  Again, the UK may have placed this at the top of the agenda, but it enjoyed widespread support among other Member States and is in no way specific to the UK or indeed any other particular sub-grouping of Member States. 
 
E.g. consider the restrictions on free movement of persons.  Again: this may have been a totemic issue for the UK, but the proposed reforms were not specific to the UK and many elements enjoyed widespread support among other countries, e.g. Denmark seemed very much in favour of overturning the Metock ruling; and there was widespread support also for limiting the full exportation of child benefits (including also in EEA states like Norway). 
 
When it comes to how the UK’s withdrawal might affect the EU’s existing institutions and policies: in the short term, the Treaties say that the UK should be excluded from European Council and Council deliberations concerning its own withdrawal, but there is no exclusion from the workings of the Commission or the European Parliament, even as regards the negotiation and conclusion of the withdrawal agreement (and no further institutional implications of the notification to leave).
 
But in practice, of course, we can already see certain implications for the UK, even before its formal notification to withdraw: e.g. the UK has given up its rotating presidency of Council, which it was due to hold in 2017.  The emergence of the Franco-German defence proposals also suggests a significant weakening of the UK’s influence in practice.  And we can anticipate that those effects will magnify in the period between formal notification and final withdrawal.  Theresa May told the European Council in October that the UK will play a full role in the EU until it actually leaves.  But we all know that our influence will be significantly diminished and our attempts at participation (if they actually take the form of blockage) will be viewed with scepticism and resentment. 
 
Once withdrawal becomes effective: as regards some institutions, one might anticipate that the impact of UK withdrawal will be limited / marginal.  E.g. as regards the Commission: there will just be one less Commissioner to worry about – not necessarily a bad thing.  E.g. as regards the Court: the legacy of common law methods is now probably safely entrenched within the institution.
 
As regards other institutions, however, the impact of UK withdrawal will surely be more significant - especially within the European Council and the Council of Ministers.  There will obviously be a very significant re-drawing of the existing balance of power between the “Big 3” - with significant implications for the leadership orientations of the other Member States.  And within the European Parliament, there will need to be an adjustment to the overall number / national allocation of MEPs (potentially combined with novel changes to the territorial basis upon which a certain proportion of MEPs might be elected in the future).   
 
We can anticipate that the character and emphasis of various EU policies may also change, without the UK’s hitherto powerful influence over their development: e.g. single market; external trade agreements; CFSP.   
 
And ultimately: what will happen without the UK’s ability to shape / constrain primary law reform, not least through the national veto over Treaty amendment and other major policy decisions involving either the organic law procedure or at least requiring unanimity among the Member States?  Especially given the draconian referendum locks imposed by the European Union Act 2011 – which many commentators had viewed as marking the effective death of major constitutional reform within the EU while the UK remained a member.  To realise that this isn’t purely theoretical, one need only recall the experience of the “fiscal compact”, when the UK vetoed the German preference for Treaty reform and forced the other Member States to proceed by way of an international agreement outside the formal structures of the EU itself.
 
In short: the UK keeps saying it will “make the best of Brexit”.  But so will everyone else.  The world is not going to stand still – least of all the EU.  UK withdrawal provides a strong stimulus to EU reform, much of which was likely in any event.  But UK withdrawal will surely influence the nature and scope of those reforms: they may well end up being very different, from what they would have been if the UK had remained a member.  Not least because UK withdrawal removes a major constituency of political influence and leadership; but also a major potential block in the decision-making system, particularly at the level of primary law reform. 
 
And of course: this feeds back into the issue of the forthcoming UK-EU negotiations (both short term and long term): it may not be the same EU that the UK is negotiating with, even as the negotiations themselves unfold - adding another layer of uncertainty on top of an already uncertain situation.
 
Thanks very much for your attention.  I’m looking forward to your questions and discussion. 


 

 

 

 

 

 

 

 

 

 

 


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UKAEL: kerstin.wachholz@kcl.ac.uk or ukael@kcl.ac.uk, Tel 07973 405590,  www.ukael.org


 

 

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