35
ISSUES: Citizenship
Chapter 3: Politics in the UK
What is Brexit?
What is Brexit? Brexit means that the UK will leave the EU. Brexit means that the UK will no
longerbeamemberof theEU.That iswhatBrexit is.Andtheretheclarityandconfidenceends.
By StephenWeatherill, the Jacques Delors Professor of European Lawat OxfordUniversity.
T
he UK post-Brexit will join
the group of over 160 states
across the world which are not
members of the EU. It would be an
exaggeration to claim that there are over
160 models governing the relationship
between states that are not members
of the EU and the EU, but not by much.
There is a wide spectrum, stretching
from states with an intimate relationship
with the EU involving acceptance of
large chunks of the EU’s legislative
acquis; through states which possess
a free trade agreement with the EU
(these take several forms); states whose
relationship with the EU is based on
the WTO but adorned by extra sectoral
deals; states which relate on the basis of
the WTO alone; and, at the far extreme,
pariah states with no engagement in
multilateral deal-making.
So the UK will ultimately be located
somewhere on this spectrum, stretching
fromNorway toNorth Korea. That is what
Brexit is.
Brexit, then, involves choices: choices
made by the UK, choicesmade by the EU-
27. The key choices that need to be made
are readily divided into three types: the
external, the UK–EU and the internal.
External
This concerns most of all the scope and
nature of the UK’s trade policy with the
rest of the world. Some Brexiteers have
painted a picture of the post-Brexit UK
pursuing rapid and fruitful negotiations
with major economic powers round
the world, and arriving at deals tailored
to the UK’s particular interests and
strengths. Leaving aside sceptical
questions about the plausibility of the
timetable and the incentives of these
major powers to dedicate resources to
negotiating with a state that has just
abandoned the most sophisticated
multilateral trading bloc the world has
ever seen, there is a key choice that
must be made before any such vision
may be implemented. That choice is
– will the UK stay in the EU’s customs
union, or not? If it does, that ability
to pursue an external trade policy
independent of the EU’s is surrendered.
But if it does not, goods and services
made or marketed in the UK will face
high and costly barriers to entry into
the EU’s market.
UK–EU
The choice here asks, in short, how
much of the EU’s body of rules will
the UK choose to adopt and follow
in order to secure privileged access
to the EU’s internal market. The EU’s
internal market does not possess a
precise economic or legal definition –
rather, it is a political construct that has
evolved incrementally over time. It is,
however, marked by a high degree of
commitment to the ‘four freedoms’ –
free movement of goods, (natural and
legal) persons, services and capital –
plus a highly developed competition
policy supported by a relatively dense
set of common policies agreed over
time on obvious trade-related matters,
such as product standards, but also in
the areas of labour market regulation,
consumer protection, environmental
standards, and so on. It is conceivable
that the UK will be able to cut a deal
involving some degree of autonomy
from the full complexity of the
legislative acquis governing the EU’s
internal market in exchange for some
degree of privileged access to that
internal market. It is not conceivable
that the UK will be allowed to cherry-
pick what it sees as the benefits of a
post-Brexit relationship with the EU-
27 and resist what it sees as burdens.
Choices will need to be made about
how far, if at all, the UK is willing to go
in aligning its laws with those of the EU-
27.
Internal
It is commonly stated that the UK’s
departure from the EU will immediately
cause a legislative and administrative task
on an immense scale, as the UK chooses
which EU-sourced rules it will abandon,
which it will amend and which it will
continue to apply. It is certainly true that
there will arise a whole host of choices.
Labour market regulation, consumer
protection, environmental law, the grant
of aid to industry, and competition law
are all examples of areas where there is
currently a partial or, in some instances,
total overlay of EU rules. In fact it is not
easy to think of any significant area of law
or policy in the UK which is not in some
way ‘Europeanised’.
Withdraw from the EU, and a state
may make its own choices about such
matters, but if it tries to start with a clean
slate it will be doing nothing else apart
from writing on it for years to come, as
it re-invents its regulatory scheme. But
in fact the job need not be so brutally
taxing. Once a deal is done (if a deal is
done) with the EU on the basic shape
of withdrawal, it would be perfectly
straightforward to repeal the statutes
which form the ‘bridge’ across which EU
law travels to reach the UK’s legal order,
but at the same time to legislate that all
measures that have beenmade over time
pursuant to the obligations imposed by
EU membership shall continue in force
in the UK notwithstanding Brexit. There
would be no change of substance at all.
And the practical point would be that it
could be considered at leisure and over
time which of these measures should
be retained, which changed and which
abrogated. There is no rush in making
the choices.
Clearly there are interconnections
between the three groups of choices:
most of all, the more intimate the
relationship the UK wishes to pursue
with the EU-27 (choice 2), the less
flexibility it will enjoy in making
choices 1 and 3. ‘Hard’ Brexit means
(roughly) surrendering the economic
advantages of privileged access to the
internal market – choice 2 – in order
to maximise the perceived scope for
external and internal action that is free
of the influence of the EU – choices
1 and 3. ‘Soft’ Brexit, by contrast, is
heavily conditioned by a desire to
secure that privileged market access
and a consequent readiness to absorb
