12th January 2017
My argument is that, regardless of the express statements of the prime minister and her government, the UK is bound to have a “hard Brexit”.
By “bound” I mean that it will be the natural and direct consequence of an Article 50 notification.
By “hard Brexit” I mean that, once the United Kingdom leaves the European Union (either at the end of the Article 50 period of two years (or as extended) or at the end of any transitional/adjustment period) the United Kingdom will not be part of the “single market”.
For the reasons set out below, I contend that once the Article 50 notification is given, a “hard Brexit” will ultimately follow. I would say that, if the reasons remain sound, that the “hard Brexit” is as good as inevitable, in that (a) it is the the natural and direct consequence of an Article 50 notification and (b) there seems nothing to prevent that consequence.
The first reason is that “hard Brexit” is the default position. This will be what will happen, unless something happens to prevent it happening. The question then becomes what could prevent it happening.
The second reason is that “hard Brexit” is also the settled and unanimous position of the remaining 27 member states. As long as this remains the case, then nothing will come from the EU27 to prevent the default position being the case.
The third reason is that “hard Brexit” is also the necessary and logical position of the UK government. Even though this is not explicitly admitted (for some reason), it is the only possible implication of five of the UK government’s stated objectives.
Those objectives, in turn, comprise two precise objectives and three general objectives.
The first precise objective is, of course, that UK is no longer to be a member of the EU. As I set out at the FT:
“this at a stroke will mean, as a matter of international law, Britain is no longer obliged to accept the “four freedoms” (of movement of goods, services, labour and capital) prescribed by the treaties, nor comply with any of the regulations and directives that set out the common standards of the single market.
“It will also not have any formal role in any of the EU institutions — the council, the commission and the parliament — charged with the formulation and implementation of the rules of the single market. Membership of the Union is a binary matter, and once Britain is outside, a great deal falls away.”
The second precise objective is that the UK will no longer be subject to the jurisdiction of the European Court of Justice, another binary matter (you either are or you are not). As I again set out at the FT:
“The UK would therefore be removed from the formal mechanism for dealing with disputes about the interpretation and enforceability of the rules of the single market.
“And without such a mechanism, the rules of the single market are polite fictions and aspirations. (Some would say that they are anyway.)”
The three less precise demands also point to the UK leaving the single market. These demands are that the UK will take control of:
(a) its borders,
(b) its laws; and
(c) its money.
If these demands are also achieved then it is hard to see how the country can also remain part of the single market. Also from me at the FT:
Control over borders undermines the freedom of movement of people (or of labour)…
“…control over laws means not accepting the qualified-majority-based deference to much of the rule-making for the single market;
“…and refusal to make compulsory contributions to the EU budget means that one can hardly participate in (or even influence) the formulation of single market rules that will affect the UK.”
The combination of these two precise demands and three general demands make it impossible for the UK to remain as part of the single market.
The UK will still, of course, have “access” to the single market. As I explained at the FT, even the Clangers would have access to the single market if they condescended to trade their soup and blue string pudding surpluses with us mere earthlings.
The question is on what terms that access is given.
The UK remaining a member of the single market could be possible, on some sort of EEA or Norweigian model, but I cannot see how that could be done if the five demands are met.
For completeness, the issue of whether Article 50 process is revocable does not in my view directly affect the argument above for, even if it is revocable, the UK government has said it will not revoke it.
And also for completeness, I note the government has asserted that it will negotiate the best possible deal regarding the single market. But insofar as such a statement has any meaning, I do not think it affects the argument above.
I am happy to be corrected (and use comments below), but on the basis of the argument set out above, a “hard Brexit” must be the natural and direct consequence of an Article 50 notification.
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