After months of speculation, the Government’s plans for Brexit are becoming clearer following Theresa May’s speech on Tuesday.
We now have an outline of what the Government’s ideal Brexit will look like and it is possible for people and businesses to begin to work out how they might be affected by all this and plan for the future.
Leaving aside the extensive debate, analysis and argument, here is a snapshot of what we currently know:
- The UK will take control of its own immigration policy, ending free movement of people between the UK and the EU. How this will affect UK nationals living elsewhere in the EU and EU nationals living in the UK remains unclear, though the Prime Minister’s speech did express a willingness to resolve this issue as early as possible.
- The UK will not be subject to the jurisdiction of the European Court of Justice and EU law will no longer prevail over UK legislation. The existing body of EU law will be imported into UK law in a “Great Repeal Act” but from the point of exit from the EU, UK law and EU law will develop independently of each other unless they are intentionally kept in sync. So, for example, we will inherit the new General Data Protection Regulation, which is due to come into force in March 2018, but will be free to amend it unilaterally post-Brexit.
- The UK will not seek a deal to stay in the EU single market. Although treated as the ‘big reveal’ of the Prime Minister’s speech, this is the logical conclusion of the Government’s position on immigration control and supremacy of UK law. The UK will, however, seek a trade deal with the EU to enable UK businesses to trade with the EU (and vice versa) on the best possible terms.
- The Government wants to preserve the Common Travel Area which allows passport-free travel between the UK and the Republic of Ireland. This would avoid a ‘hard border’ between the UK and Ireland but it remains unclear how this will be achieved.
- The UK wants to negotiate its own trade deals with other countries, and will seek some kind of special status within the customs union to enable it to do this. This is likely to form an important strand of negotiations as the customs union relates to trade with countries outside the EU.
- The terms of the final Brexit ‘deal’ with the EU will be put before both houses of Parliament for approval or rejection. However, rejection of the deal would mean a ‘cliff edge’ departure from the EU, not staying in.
- The Supreme Court will issue its judgment in the Article 50 case on Tuesday 24 January. It is expected that the Court will confirm the previous decision that Parliament must approve the serving of the Article 50 notice to start the process of leaving the EU. It would be a surprise if the Supreme Court required the Government to seek the consent of the Scottish Parliament before doing so, as the Scottish Government has been arguing. Barring anything unexpected in the Supreme Court decision, the Government has reiterated its intention to serve the Article 50 by the end of March this year.
There remain, of course, lots of unknowns. The Prime Minster said she wanted the Scottish Parliament and other devolved administrations to be fully engaged in the process she is embarking on. Yet it is very difficult to reconcile her position with the Scottish Government’s stated preference that Scotland remain in the single market. Mrs May wants to continue European collaboration on major science, research, and technology initiatives. To date, the EU has helped drive that collaboration enabling universities to work easily with partners across the EU, and as an important funding source. It is not clear how this will be continued. Certainly, the Government’s preferred approach is not what most in the academic community have been pushing for.
We will blog next week about how this might affect Scotland, the prospect of a second independence referendum and the Article 50 judgment.
Liam McMonagle is a Partner in our Business Law department. If we can help you please contact Liam on the details below.