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Jean-Yves Gilg

Editor, Solicitors Journal

Five things you really should know about Brexit

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Five things you really should know about Brexit

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Toby Vanhegan and Riccardo Calzavara consider the important legal implications of withdrawal from the EU and bust some commonly held Brexit myths

Toby Vanhegan and Riccardo Calzavara consider the important legal implications of withdrawal from the EU and bust some commonly held Brexit myths

Brexit has generated an enormous amount of attention. Virtually everybody seems to have an opinion about what has happened and what is going to happen. The truth is that the future is uncertain; whatever happens, Brexit will have an enormous impact economically, socially, politically, and - of course - legally.

How do we get out of the EU?

Greenland is the only country (strictly, a self-governing territory of Denmark) to have left, though it may seek to join again in the future. In seeking to leave, we are going against the tide in Europe since there are currently five recognised and two potential candidates for EU membership, and three candidates with 'frozen' applications.

The consensus is that we will activate the withdrawal mechanism set out in article 50 of the Lisbon Treaty. How do we do that? We signed up to that treaty by exercise of the royal prerogative, but legal action is already being brought on the basis that the doctrine of parliamentary sovereignty requires an act of parliament to trigger withdrawal. If primary legislation is needed, debates and votes in both Houses of Parliament will be required. The referendum result is only advisory and members of parliament may vote against legislation to facilitate departure from the EU. This is highly likely given the large numbers that supported the Remain campaign.

It is a widely held view that we will now negotiate a withdrawal agreement with the EU. However, it is not that straightforward. Article 50(2) provides that the withdrawal procedure is triggered when a member state notifies the European Council (EC) of its intention to withdraw. The EU, acting through the EC and with the consent of the European parliament, shall then negotiate and conclude an agreement with the UK, setting out the withdrawal arrangements as agreed by a qualified majority. This is why, strictly speaking, it is a 'UKexit' not a 'Brexit' as the UK, not Britain, is leaving.

However, article 50(4) is important: the EC member representing the UK cannot participate in the withdrawal discussions. This will severely hamper the prospects of a favourable agreement, particularly in the context of the rise of Euroscepticism across the EU and the upcoming national elections in a number of member states (in which politicians will want to be seen flexing their muscles). There is a real danger that the EC will unilaterally come up with an agreement which it expects the UK to sign. No doubt there will be some sort of mechanism for discussions about the nature of that agreement, but the inability of our EC member to participate in the procedure which leads to its drafting is bad news.

Another possibility is using article 65 of the Vienna Convention on the Law of Treaties which sets out a procedure for inter alia the UK to withdraw from international treaties. However, it is far from clear that the conditions set out in that convention have been satisfied, and it might be considered unacceptable to try to bypass article 50 in this way.

Withdrawal could take years

It is important to note that article 50 is about exit, not trade negotiations. However, it envisages a withdrawal agreement being presented to and signed by the UK, resulting in our departure. What happens if we do not agree the terms of the withdrawal agreement? This is a very real possibility, especially if we have been largely shut out of the negotiations.

Article 50(3) may provide an answer. Until we sign the withdrawal agreement we cannot leave, but if we do not sign after two years (or agree an extension of time) our departure is automatic. This would be a bad outcome: it would mean we leave without a clearly defined relationship with the EU. It would also mean that the exit procedure could last two years or longer if we agree an extension. Such lengthy uncertainty cannot be good. There has been much speculation that the UK will seek a Norway- or Swiss-style agreement. Both have their disadvantages, and neither is likely given its effect and consequences. If neither is agreed, the UK will revert to the World Trade Organisation rules, which means mutual tariffs that will hurt the economy.

Withdrawal may not make that much of a difference

There is a widely held view that once the UK withdraws from the EU we will be free from all its unwanted laws and regulations: overnight we will be able to stem the flow of immigrants to the UK and revert to the use of pounds, ounces, Fahrenheit, gallons, inches, feet, yards, and all those other quintessentially British forms of measurement.

However, the effectiveness of EU law in England and Wales comes not primarily from our membership, but from our own legislation: section 2 of the European Communities Act 1972 gives EU law effect in England and Wales. Unless that Act is repealed, EU law will continue to have effect. Even if it is repealed, that will not be the end of the matter. A huge amount of EU law is now part of domestic law: we have enacted primary and secondary legislation (it is estimated that there are about 12,295 such regulations) to give it force. To get rid of EU law, all that primary and secondary legislation will have to be repealed.

For example, the right of free movement originated in the Free Movement Directive 2004/38/EC, but it has been given domestic effect by the Immigration (European Economic Area) Regulations 2006/1003. Unless those regulations are repealed, there will continue to be free movement in England and Wales. The unenviable task of trawling through these regulations will, presumably, be given to the new Department for Exiting the European Union and its 1,000 civil servants.

Human rights do not simply disappear on withdrawal from the EU. They come not from our EU membership, but from the Rome Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (the European Convention on Human Rights (ECHR)). To get out of that requires activation of its article 58 procedure which necessitates giving six months' notice to the Secretary General of the Council of Europe. Even that will not do the trick: human rights in England and Wales have the force of law because of the Human Rights Act 1998. Unless that Act is repealed, the rights set out in schedule 1 will continue to have effect.

The same is true of the UK's obligations to refugees. Leaving the EU is not going to change our duties in this respect as those come from the Geneva Convention Relating to the Status of Refugees (1951). We remain bound by that convention whether or not we are in the EU.

Can you really take away EU law rights?

There is an assumption that it is possible to remove accrued EU law rights by withdrawal from the EU. It is not clear whether that is possible. There are estimated to be 3 million EU citizens and their families in the UK, many of whom are here on the basis of free movement rights in EU law. Many have lived here for years, married, had families, were educated here, work here, have become part of British society. Can it really be possible to take away their accrued rights, and reduce them to the status of illegal immigrants until they are granted visas to remain? Will NHS doctors and nurses originating from the EU, making up respectively 10 per cent and 4 per cent of the total, have to seek permission to work here?

Article 70(1)(b) of the Vienna Convention supports the contention that the removal of rights accrued under EU law is not possible. However, people whose immigration status in the UK depends on EU free movement rights should now aim to obtain documentary evidence of the best form of status they can achieve. Perhaps the most likely change is some different form immigration control for those who seek to enter and remain in the UK after Brexit.

The knock-on effect

Assuming the introduction of a tighter system of immigration control for newcomers, what effect will there be on the estimated 1.2 million 'Brits abroad', i.e. those who have chosen to live in sunny Spain or Portugal, or who have holidays homes in Tuscany, Provence, and elsewhere in the EU? If greater restrictions are imposed on EU citizens wishing to enter the UK to live and work, then it seems unlikely that British citizens living and working in the EU will be left to carry on as before, or that in future other British citizens will be able to enjoy the same lifestyle and privileges.

On acceding to the European Economic Community in 1973, the UK gave up the right to negotiate trade agreements with other countries. Today, that sacrifice gives us access to 508 million consumers with a collective GDP of £12.4tn. The most immediate effects of Brexit are threefold:

i. We will lose automatic access to this marketplace;

ii. We will be able to enter into trade agreements with non-EU countries without requiring the EU to do so for us; and

iii. Entering into a trade agreement with the EU will require the unanimous consent of its members.

The necessity of unanimity makes it clear that it does not matter (as fallaciously argued by the Leave campaign) that Germany will want to continue to export 820,000 cars to us annually; it too is restricted by these rules.

Leaving the EU and/or the ECHR may also give rise to a breach of the Good Friday Agreement, which was drafted on the basis that the Republic of Ireland and the UK would remain in the EU and be bound by the ECHR. It may also give rise to a breach of the devolution statutes, including the Scotland Act 1998, which will need to be amended if we leave the EU and/or the ECHR.

An independent Scotland within the EU may necessitate a border separating it from England. Border controls will certainly have to be stricter between Northern Ireland and the Republic of Ireland. There has already been suggestion that the Treaty of Le Touquet, by which we exercise border control in Calais and Dunkirk, will be revoked. Discussions as to what will happen with Gibraltar's soft border with Spain have yet to commence.

The way forward is by no means clear and there could be years of uncertainty ahead. The UK is regarded as a land of opportunities and a fantastic place to live, and no doubt that can continue to be the case, but we must make plans and think carefully about our future relationship with the EU.

How the Referendum result becomes a reality remains to be seen. Changing laws to enable Brexit means persuading MPs who voted 'Remain' to vote for legislation that causes 'Leave' and is likely to be no simple task. A total of 17,410,742 people voted 'to leave within an estimated UK population of 65,110,000: the leavers total a mere 26.7 per cent of the population. If an MP's constituents voted to remain, they will not be representing their interests in parliament by voting for 'Leave' legislation.

Toby Vanhegan and Riccardo Calzavara are barristers at Arden Chambers. They provide legal advice and assistance on issues of English law in English, Italian, Spanish, and Portuguese to clients from around the world via their website www.lawinyourlanguage.com

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