25th September 2016
This is a short summary blogpost of what appear to be the main issues which need to be addressed for a Brexit to take place. I set out below the issues as questions, though they could just as easily be framed as statements.
I call each of these a “hurdle” – because it is possible that each one of these can be negotiated and jumped over; but it is also possible that each one can be an obstruction.
The “hurdles” are set out below in a rough sort of order. It is not suggested each of the these hurdles are the same height: but each needs to be dealt with or it could be a cause of delay or deadlock.
Hurdle One: Which domestic legal form? Act of Parliament or exercise of the Royal Prerogative (or something else?)
Hurdle Two: What if the Scottish government is resolute in its opposition to Brexit?
Hurdle Three: What if the Northern Ireland government is resolute in its opposition to Brexit?
Hurdle Four: How is the border with the Republic of Ireland dealt with? What impact will there be (if any) on the Good Friday Agreement?
Hurdle Five: What if Gibraltar is resolute in its opposition to Brexit?
Hurdle Six: What if the government is defeated in the House of Commons on Brexit?
Hurdle Seven: What if the government is defeated in the House of Lords on Brexit?
Hurdle Eight: How is any Brexit to be reconciled with the 2015 Conservative manifesto pledge that the UK’s position in the Single Market will be “safeguarded”? How will that pledge affect the passage of Brexit legislation under the Salisbury Convention (that only legislation which fulfill manifesto pledges will not be subject to Lords’ delay)?
Hurdle Nine: How is any exit agreement with the EU to be completed in less than two years? Or will there have to be an agreement to extend time?
Hurdle Ten: How quickly can the UK and EU commence agreement on a trade (and/or framework) agreement to follow the exit agreement? Is such an agreement needed?
Hurdle Eleven: On what basis is the UK to have access to the Single Market?
Hurdle Twelve: Is the UK to continue as part of a Tariff/Customs Union with the EU or will it be able to negotiate its own tariff/customs agreements?
Hurdle Thirteen: To what extent (if any) will the UK accept the principle of freedom of movement in any arrangement with the EU?
Hurdle Fourteen: Will there be any special protection for the City of London?
Hurdle Fifteen: How quickly will the UK be able to sort out its position at the World Trade Organization? Will any current WTO members seek to frustrate or block the UK in this respect?
Hurdle Sixteen: To what extent will areas of substantial law need to be revisited? Would a simple savings provision suffice?
Hurdle Seventeen: To what extent will the law relating to various areas of practice – in respect of mutual recognition regimes and exchanges of information with other member states – need to be revisited?
Hurdle Eighteen: How can the UK civil service achieve Brexit (on top of its ‘normal’ workload) in a period of austerity and reduced budgets – and when it is one-fifth smaller than in 2010?
Hurdle Nineteen: What will be the legal position of rights already acquired (or which may be acquired) by people and companies under EU law once Brexit takes place? Will they be enforceable? Will there be compensation for the loss?
There are other hurdles. You may know of some. If so, please add your suggestions below as a comment.
You may also think these are not hurdles, or you may want to quibble with something or other. If so, please submit a comment and, as long as it is polite and constructive, it will be published.
My own position on Brexit is set out here.
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