Click to download a full Brexit chapter taken from the European Union Law (2nd edn) textbook:
Chapter 19 - European Union Law - Brexit and the Union: Past, Present, Future
This section aims to set out basic issues in Brexit, provide recent updates on the issue, and provide an overview on more specific issues such as the legality of Brexit, the Backstop problem, and the Brexit ‘deal’ problem. It does not, however, aim to provide a comprehensive guide to Brexit. While studying UK and EU Constitutional Law, it is advised that students actively seek resources on Brexit – both from a legal and political perspective – as well as try to keep up to date on this issue. We recommend using accurate external sources such as the BBC, The Economist or The Financial Times.
Undoubtedly, Brexit will result in several changes in UK law. One particular area that has been the worry of many is free movement rights previously held by UK citizens. If you are studying EU Constitutional Law, the main issues considered will revolve around the applicability of EU law, the principles of direct effect, supremacy, etc. There will be a two-year transitional period after March 2019 where there will still be retained EU law in the UK.
In a referendum on 23 June 2016, 51.9% of the United Kingdom voted to leave the European Union. England voted for Leave, by 53.4% to 46.6%. Wales voted for Leave, by 52.5% to 47.5%. Scotland and Northern Ireland both voted for remain, with 62% to 38% for Scotland and 55.8% to 44.2% for Northern Ireland.
As a result of the referendum, the UK Government invoked Article 50 TFEU on 29 March 2017, which then begun the two-year negotiation period that has been the highlight of the UK's political climate. This two-year negotiation period was due to conclude with the UK’s exit from the EU on 29 March 2019, but the deadline has since been extended to 31 October 2019.
Leaving the EU, however, is not as simple as it was expected to be; there are multiple challenging arrangements and decisions to be made, particularly about issues concerning the free movements.
Undoubtedly, Brexit will result in several changes in UK law. One particular area that has been the worry of many is free movement rights previously held by UK citizens. If you are studying EU Constitutional Law, the main issues considered will revolve around the applicability of EU law, the principles of direct effect, supremacy, etc.
A no-deal Brexit?
A no-deal Brexit means that the UK would immediately leave the EU with no agreement about how it should leave the EU. This means promptly leaving EU institutions and bodies and the UK will immediately stop contributing to the EU budget of approximately £9bn a year. Most politicians are against a no-deal Brexit.
Ex-Prime Minister Theresa May's plan was to avoid a no-deal Brexit. Her deal proposed a 21-month transition period to ease the leave. However, this has been voted down three times by Parliament. This makes a no-deal Brexit even more likely especially within the recent events such as the suspension of Parliament by Boris Johnson.
BBC - Brexit: All you need to know about the UK leaving the EU
BBC - Brexitcast: a podcast on Brexit
YouTube, Professor Michael Dougan (EU Law at Liverpool) - The battle between Chequers and "chuck Chequers"
E-International Relations - "Brexit: A European Perspective" (a blog curated by Dr Foster from KCL and Dr Bijsmans from Maastricht University)
EU - Official EU Publications on Brexit
Brexit: Specific Issues
The Backstop concerns the 310-mile border between Republic of Ireland and Northern Ireland which will eventually become the border between the EU and the UK. The main challenge to this issue is finding arrangements that both parties can agree on and, most importantly, arrangements that would work.
In the meantime, however, the UK and the EU have both agreed to put a “backstop” into place. It is a safeguard put in place to make sure that there will not be a hard border as a result of Brexit, no matter what the outcome. The current backstop agreement adopts a ‘single customs territory’ which still keeps the UK in the EU customs union. For now, food products and goods coming into Northern Ireland still follow EU rules and standards, so as to prevent checks on goods which might overburden customs. However, if these products were to be distributed to the rest of the UK, they would be subject to new customs controls.
A majority of the public, as well as MPs, often think that the backstop can lead to the UK remaining in the EU for an indefinite period of time. There have also been numerous questions on Theresa May’s backstop plan. However, as there are no simple and obvious solutions to this issue, the backstop remains in place until further agreements are made.
Boris Johnson has written to the EU requesting to remove the Irish backstop, but this was outright rejected. Donald Tusk, European Council President, suggested that the UK government was willing to allow a return to a hard Irish border. Angela Merkel, Chancellor of Germany, suggested the UK should have 30 days to devise an alternative plan to the Irish backstop and propose it to the EU.
General election puts Brexit on hold
On Tuesday, it was decided that the UK would be holding an early general election on 12 December 2019. This might shift the priorities in Westminster, and split the country’s focus. PM Boris Johnson has said that he will let go of his Brexit deal for now as the spotlight shines on the general election.
Notably, today, POTUS Trump remarked that the UK and US would not be able to trade if Johnson’s Brexit deal comes into place. Trump, however, did not remark which aspects of the deal would jeopardise the UK-US trade relationship so, to what extent this is true, is still highly questionable.
Brexit delayed again
Brexit has been delayed – yet again – even after PM Boris Johnson strongly asserted that he refuses to ask for an extension. He was, however, legally obliged to send a letter asking for the extension.
EU leaders met on Monday and were asked to choose between three proposed dates, i.e. 30 November, 31 December or 31 January. They have agreed to change the Brexit date to 31 January 2020.
What about October 31st?
Whether or not today’s vote has shifted the dates of Brexit will depend on how soon the appropriate legislation can be put into place. Laura Hughes from The Financial Times stated that Brexit by October 31st is still possible, but it would undoubtedly increase the bar for PM Boris Johnson during his deal’s second reading next week.
MPs voted, by 322 to 306, for the Letwin amendment which would require Brexit to be postponed until the appropriate Legislation has been put into place. What are the implications to the PM’s new Brexit deal the EU has agreed on? Poland’s PM, Mateusz Morawiecki, described today’s vote not as a rejection to the deal but “as a postponement of its acceptance.” Although this is indeed an optimistic view, only time will tell how this postponement will truly impact Brexit.
After the new deal:
Now that the deal has been agreed by both parties, the ball is in Parliament’s court. MPs will, unprecedently, sit in the House of Commons and vote on the deal on a Saturday (19/10/2019). Northern Ireland’s DUP has openly stated they will be voting against the deal, so there is no sure answer as to what the outcome will be. Nonetheless, the BBC has put together this helpful chart to help us understand the consequences of either a yes/no vote on Saturday. If MPs do not back this deal, however, then MPs must ask for an extension until January 31st.
Rejected by Merkel:
It was revealed that Germany’s chancellor Angela Merkel has not approved of Prime Minister Boris Johnson’s alternative plan to a no-deal Brexit. Merkel stated her options over a phone call with Johnson on October 8th 2019.
A new deal:
There has been a new deal agreed on by the UK and the EU. As noted above, one of the main challenged faced by ex-PM Theresa May was how to resolve the Irish backstop problem (see above). The agreed new deal, however, has sought to resolve this issue. Specifics on what has been proposed can be read in this summary written by the BBC. The deal, however, has not addressed other prominent issues, such as the transition period and future relationship between the UK and the EU, that have also challenged May.
The alternative plan:
Prime Minister Boris Johnson is set to give a speech today about what his alternative plan to a no-deal Brexit would be.
UKSC ruled the suspension of Parliament unlawful and void:
The UK Supreme Court has unanimously ruled that the suspension of Parliament was unlawful and void, in the seminal case of Miller and Cherry (No 2)  UKSC 41.
Suspension of Parliament:
Prime Minister Boris Johnson has suspended Parliament. Tens of thousands of people have protested against this, but the Prime Minister has continued to defend his controversial decision.