Myths and Misconceptions
There are many myths and misconceptions about the Brexit process and what it will involve. During the referendum campaign, near hysterical fears were voiced that somehow the UK would be plunged into a situation where we would be cut off from trading with the EU or even severely hampered in trading with the wider world.
The leaflet distributed in May 2016, at a cost of £9.5m to taxpayers, set out the views of the pro-Remain Government machine and claimed that voting to leave the EU would “create years of uncertainty” which “could result in 10 years or more of uncertainty as the UK unpicks our relationship with the EU and renegotiates new arrangements with the EU and over 50 countries around the world.”
These alarmist claims do not stand up to critical scrutiny for reasons which we shall carefully explain.
In reality, the Brexit process is legally straightforward. The UK, in common with all other EU Member States, has an unqualified right to give notice of withdrawal from the European Union, and did so on 29 March 2017. As explained in our first section on the Article 50 Process, under Article 50 of the Treaty on European Union, the giving of notice by a Member State is followed by a 2-year period during which an agreement on arrangements for withdrawal and for a continuing future relationship can be negotiated between the withdrawing State and the EU.
A common misconception is that the European Union is able to delay our departure by dragging out the negotiating process. This is not correct. The Treaty is clear that at the end of the 2-year period we cease to be bound by the European Treaties, and therefore cease to be liable for budget contributions and all other obligations of membership, whether or not the details of exit and of our continuing future relationship have been agreed.
If, as seems fairly likely, a so-called “transition” or “implementation” period is formally agreed between the UK and the EU, then most EU Treaty obligations would continue to apply to and within the UK until the end of that period, which is currently projected to last until 31 December 2020.
We are sceptical at Lawyers for Britain as to whether such a long and comprehensive transition arrangement is really justified, having regard to its very high costs both economically and in terms of stopping the UK from amending our own laws and embarking on an international trade policy independent of the EU. Indeed, it is totally baffling why the Whitehall machine should apparently think that it needs a period of 4 1/2 years (longer than it took to fight the whole of World War I) to prepare the UK for exit.
During the period leading up to formal exit from the EU on 29 March 2019, and effective exit (assuming the transition period goes ahead) at the end of 2020, the UK is able to carry out a series of steps which do not need the cooperation or agreement of the EU.
First, we can revise our internal law in preparation for exit in order to take full advantage of the most important freedom we will regain, namely the ability to shape our own laws in the wide areas of policy that are currently dictated by EU obligations. We cannot actually bring into force changes in our law which depart from EU obligations until exit, or until the end of the transition period. But we can undertake the process of deciding what most urgently needs to be changes, and of passing the legislation needed to do so.
Secondly, we are free to negotiate international trade agreements with non-EU states as long as they do not actually come into force until after exit, and this freedom has been confirmed in the draft text of the transition agreement. We find it completely baffling that the UK government has failed to challenge erroneous and “try-on” suggestions by the EU Commission that the UK is not permitted by the EU Treaties to negotiate post-exit trade agreeements with third countries: for our legal analysis of this issue, see Negotiating International Trade Treaties Before Exit.
Campaign assertions that it can take years to negotiate new free trade agreements are irrelevant and beside the point. As explained in our detailed page on Brexit and International Trade Treaties, the UK is already a party to the EU’s external free trade agreements and is no need to negotiate new terms with the other States involved, at least initially. What is required is much simpler: for those States to allow the UK to represent itself rather than being represented by the EU Commission, and to continue the existing free trade terms. They have every incentive to do this in time for Brexit: it is impossible to envisage why Korea, for example, would want to see tariffs re-imposed on its exports of electronic goods and cars into the UK market.
Thirdly, we can replace many international arrangments which are at present conducted through the EU by directly joining global or regional multilateral treaties. In many areas, there is simply no logic or purpose in conducting our international relations through the EU.
Fourthly, are seeking to negotiate a trade relationship with the EU in order to preserve existing trade patterns. Since we are the EU’s best customer and buy far more from the EU than we sell to them, a free trade deal is more in their interests than in ours. We have a very strong hand in negotiating free trade on fair and reasonable terms for our mutual benefit without having to pay any sort of “price” for the great “privilege” of continuing to buy goods from the EU without imposing tariffs or other barriers on them.
The steps in the Brexit process
In the following pages, we shall explain the steps that the UK is taking in the Brexit process.
First, we explain the legal framework of the Article 50 Brexit process as laid down in the European Treaties, what needed to be done to trigger it and what happens next.
We then explain in International Trade Treaties how the UK can take over directly the existing free trade relationships with third countries under the existing EU-third country trade agreements, preserve its free trade relationship with the EFTA countries, and then be in a position to start negotiating additional and improved free trade agreements ahead of actual departure from the EU, to take effect after exit.
In the next instalment of this series, we set out in Amending UK law in preparation for Brexit how the UK can go about reforming its internal laws prior to exit, and how in many areas there are existing global or regional treaties which would replace international arrangements which are currently conducted through the medium of the EU.
In Brexit and the EU Single Market we explain the legal elements which comprise the single market, some of which are beneficial but others of which (such as ‘Fortress Europe’ restrictions imposed on our trade with non-EU countries) are very harmful. Therefore, the objective after exit should not be to remain part of the Single Market with all its negative consequences: instead, the aim should be to maximise the UK’s access to the Single Market.
Finally, in Brexit – doing a deal with the EU we spell out the objectives and negotiating tactics the UK should pursue in seeking a long-term agreement governing trade and other relationships with the remaining EU.
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