Will the UK rejoin the European Union (EU)?
This post looks at the essentially political question of whether the UK might rejoin the EU in the foreseeable future. There are those who hope that it might do so but are such aspirations realistic? A further question is what would be the process for rejoining.
It is probably unwise to say that rejoining will never happen but, as things stand in late 2021, it is highly unlikely. That is, of course, my personal view but let's look at the situation.
Political situation -
The Conservative Party forms the current government and was elected in 2019 on a manifesto of Getting Brexit Done - Conservative Party Manifesto 2019 (conservatives.com)#
Now that Brexit has taken place, there is not a even the slightest change of mind on the government's part.
As for the Labour Party,
currently led by Keir Starmer QC MP, there is no policy for rejoining. This was stated unequivocally by Starmer in a speech to the Confederation of British Industry (CBI) on 22 November 2021.Keir Starmer's speech to the CBI annual conference - The Labour Party
Starmer described Brexit as "poorly thought-through"- (a huge understatement) - and outlined areas where he would seek improved relations with the EU - e.g. a new veterinary agreement for trade in agri-products, regulatory equivalence for financial services, mutual recognition of professional qualifications, a "better deal" for UK hauliers etc.
Such improvements are perhaps the most one can hope for and the existing Trade and Cooperation Agreement (TCA) recognises the possibility of future agreement - (e.g. see TCA Article 2 Supplementing Agreements).
Public opinion -
An opinion poll conducted by Statista indicates that, as at 10-11 November, 50% of those polled thought it was wrong to have left the EU, 37% thought it was the right decision, 13% did not know.
• Brexit opinion poll 2021 | Statista
Whilst public opinion is fickle and a poll is just a sample of the population, it is fair to say that this poll hardly suggests a great public demand for rejoining though it is likely that rejoining would have greater support in those parts of the UK that voted against Brexit in 2016 - i.e. Scotland and Northern Ireland. It is Scottish National Party (SNP) policy to seek independence and then to seek EU membership.
Economy -
The economic impact of Brexit is difficult to assess given the huge impact, from early 2020, of the Covid-19 pandemic but it is likely that, longer-term, the impact of Brexit will be much greater.
As stated by Jonathan Portes (Professor of Economics and Public Policy, King's College London), "... from an economic perspective, Covid is for Christmas, while Brexit is for life."
In October, the Office for Budget Responsibility published its overview of the UK's economic and fiscal outlook.
Overview of the October 2021 Economic and fiscal outlook - Office for Budget Responsibility (obr.uk)
Whilst the OBR report is not all bad news, it is clear that problems are likely to continue. The OBR expects the economy to have risen by 6.5% in 2021 but, of course, that was from a low point in 2020 caused by the pandemic and the resulting "lockdowns". The report points to rising energy prices and labour shortages in some occupations. CPI inflation is expected to be 4.4% in 2022 - perhaps peaking at 5%. The tax burden has increased and is expected to reach 36.2% of GDP by 2026-7.
A further study is by John Springford, Centre for European Reform
The cost of Brexit: September 2021 | Centre for European Reform (cer.eu)
This notes that, in September 2021, UK goods trade was 11.2% (£85 billion) lower than it would have been had the UK stayed in the EU single market and customs union. The study point out that the sizeable economic costs of Brexit come before the UK implements full border checks on imports from the EU.
What if the the UK were to seek EU membership
As already discussed, I doubt the UK will seek membership in the reasonably foreseeable future but it is worth noting the mechanism provided for joining.
This is to be found in Article 49 of the Treaty on European Union (TEU).
C_2016202EN.01004301.xml (europa.eu)#
"Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.
The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements."
For present purposes we can note:
- The need for an agreement between the Member States and the applicant State - all the terms of such an agreement would have to be negotiated and, whilst this only an opinion, it is unlikely that the EU would be willing to grant the UK the same terms as it previously enjoyed
- The need for ratification of the agreement by all the contracting States - thus, it would only take one to say No - as President De Gaulle famously said of the UK's application in 1967.
The future?
Barring some political sea change, the UK's future now lies outside the EU and relations with the EU will be governed by the Withdrawal Agreement (WA) , the Trade and Cooperation Agreement (TCA) and any future agreements. Both the WA and TCA are treaties binding the parties in international law.
Under the UK's "dualist system" it is necessary for Parliament to give legal effect within domestic law to treaties. This was duly done in both cases:
European Union (Withdrawal Agreement) Act 2020 (legislation.gov.uk)
and
European Union (Future Relationship) Act 2020 (legislation.gov.uk)
I did not want Brexit to happen.
Brexit was brought about by a campaign marked by considerable misinformation including outright lies. In passing, it is interesting to note the various slogans used during the Brexit campaign - James O'Brien rounds up the meaningless Brexit slogans used by Leave campaigners - LBC and Brexit: Five years ago ‘Take back control’ was a slogan, now it is a doctrine. – Charlotte Tosti
The campaign for a remain vote failed to bring home to people the undoubted advantages of membership both economically and in terms of the rights given to them by the application of EU law - e.g. access to the EU single market, rights to seek work, to travel etc. Some of those membership benefits have become more apparent to individuals now that the UK is a "third country" (i.e. non-member).
It was also the case that, in 2016, there was no clear indication as to the shape of Brexit that the UK would seek. It was akin to being asked to buy a house without seeing it. It took until January 2017 - (7 months after the referendum) - for the Prime Minister (then Theresa May) to set out the type of Brexit which the government would seek
- Prime Minister's Lancaster House Speech - January 2017 - setting out the Plan for Britain, including the 12 priorities that the UK government would use to negotiate Brexit.
Another factor was that it was not certain in law that a notification under Article 50 could be unilaterally withdrawn. Article 50 itself is silent on the point but the uncertainty meant that it might not have been possible to negotiate withdrawal terms and, depending on the outcome, decide whether to either continue with the leaving process or continue as a member of the EU.
Some of us thought that the UK could unilaterally withdraw it because the UK remained a sovereign nation albeit sharing its competencies with the EU. But there was respectable legal opinion to the contrary. Interestingly, the Miller 1 litigation [2017] UKSC 5 proceeded on an agreed basis that notification could not be withdrawn.
In Miller 1, a majority (8) of the Supreme Court held that royal prerogative powers relating to treaties did not extend to permitting the government to "trigger" Article 50 of the TEU. An Act of Parliament was required to authorise the giving of the Art 50 notice. An Act was duly passed to enable the Prime Minister to give the notice - European Union (Notification of Withdrawal) Act 2017. The majority view enabled Parliament to have its say before the article was triggered.
The dissenting judgments of Lords Reed, Carnwath and Hughes are preferred by some lawyers. Put simply, on the minority view, there was no need for prior authorisation by Parliament but Parliament would have had to legislate to address the issues arising from Brexit. Such legislation would have taken into account the outcome of the negotiations between the government and the EU. Thus, Parliament would eventually have had some say in the process but it may have been the case that the Article 50 notice was irreversible.
Subsequently, the Court of Justice of the EU (CJEU) held that, subject to certain conditions, notification could be unilaterally withdrawn - See the court's Wightman and others judgment of 10 December 2018. The Wightman case was a request from Scotland's Court of Session for a preliminary ruling on the interpretation of Art 50 TEU.
For a view that this CJEU decision did not have any legal effect on the Miller 1 decision see Does Wightman mean that Miller was decided incorrectly? - Monckton Chambers
Posts on Brexit:
Brexit | The Institute for Government
For frequent analysis of the on-going Brexit story please see:
- Brexit and Beyond and Brexit & Beyond: UPDATED May 2021: My top Brexit commentators/ sources (chrisgreybrexitblog.blogspot.com)
- Brexit blog (Monckton Chambers)
- Brexit Law - Brick Court Chambers
- Brexit Time
- Brexit - Queen's University Belfast
No comments:
Post a Comment