What Law Surrounds Brexit and Where does it Stand Now?

By Kendall O’Connor

Established in 1951, the European Union (“EU”) was founded by a diverse group of individuals with the aim of forming “a peaceful, united and prosperous Europe.”[1] It was not until January 1, 1973, that the United Kingdom joined the EU raising the number of member states to nine.[2] As of today, there are twenty-eight member countries of the EU. Each of these members adopt comprehensive and collective rules and regulations as national law to further the aim set by the EU’s Founding Fathers.[3]


While it is uncontested membership within the EU provides various benefits, participation does not come without a cost.[4] Acknowledging members may eventually determine their EU membership disadvantageous to the interests of their country and too costly, Article 50 of the Lisbon Treaty reserves a member state’s right to withdraw from the EU.”[5] Until now, only three member states had withdrawn – Algeria was the first to leave the EU in 1962, followed by Greenland’s partial withdrawal in 1985, and the Caribbean island of Saint-Barthélemy in 2007.[6]


Held on a usual uneventful summer Thursday on June 23, 2016, a referendum was held “to decide whether the [United Kingdom] [hereinafter referred to as the “UK”] should leave or remain the European Union”– commonly referred to as “Brexit.”[7] Considering the results of the more than 30 million people who voted, on March 29, 2017, “the United Kingdom notified the European Council of its intention to leave the European Union, in accordance with Article 50 of the Treaty on European Union.”[8] This paper will address some of the legal implications arising out of the UK’s decision to leave the EU, and whether it’s decision could shift the way in which the laws related to international mechanisms and relationships are drafted.


Article 50 states:


“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements . . .


3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”[9]


So, while Article 50 does not provide substantive conditions for the UK to exercise its right to withdraw, it does provide for procedural requirements.[10] When such requirements are satisfied, “EU law ceases to apply in the withdrawing state, although any national acts adopted in implementation or transportation of EU law would remain valid until the national authorities decide to amend or repeal them.”[11] Experts agree that a withdrawing state replacing EU law “would need to enact substantial new legislation . . . .”[12]


To cease application of EU law within the UK, the Conservative government has so far introduced the European Union (Withdrawal) Act 2018 (hereinafter the “repeal bill”) to abolish EU law’s precedence over laws passed by the UK Parliament.[13] Following agreement by both the House of Commons and the House of Lords on the text of the bill, Royal Assent was received formally establishing the bill as law on June 26, 2018.[14] While the “unpicking of 43 years of treaties and agreements covering thousands of different subjects” will not be a straightforward task, it is further complicated by the fact that no other “full-fledged” member of the EU has done this before.[15]


Under the repeal bill, all existing EU law is copied into UK law, which the UK Parliament may then “amend, repeal and improve” as necessary.[16]  It has been argued by those opposing Brexit that the repeal bill is giving the government “sweeping powers to change legislation without proper Parliamentary scrutiny.”[17] While it is impossible to precisely predict how the UK government may amend, repeal, or improve the laws pursuant to the repeal bill, such predictions may be speculated based on the reasonings for wanting Brexit to happen in first place.


The “main message” of Brexit was to “take back control.”[18] Supporters of Brexit “want[ed] the UK to make all of its own laws again, rather than being created through shared decision making with other EU nations.”[19] In short, Brexit supporters believe “Britain should be ruled by Britain,” and that “[Britain]’s interests should be paramount.”[20] This type of mindset has been coined as modern nationalism, a type of approach which admittedly can be “poisonous and abused.”[21] Those who employ this type of mindset, i.e. supporters of Brexit, believe they have endured some type of “deprivation caused by globalization” and have a “fear of migration.”[22]


If the UK’s main message of leaving the EU was due to modern nationalism, it is not unreasonable to predict the laws to be amended, repealed, or improved in the wake of Brexit would reflect such mindset. For example, the Prime Minister of the UK, Theresa May, stated “one of the main messages she took from [Brexit] was that the British people wanted to see a reduction in immigration.”[23] Currently implemented EU law grants rights relating to the free movement of EU citizens and their family members, however.[24]


EU law adopted in 2004, specifically Directive 2004/38/EC of the European Parliament and of the Council, was “designed to encouraged Union citizens to exercise their right to move and reside freely within the Member States, to cut back administrative formalities to the bar essentials, . . . and to limit the scope for refusing entry or terminating the right of residence.”[25]  This is commonly referred to as the “free movement of people.”[26]


With the issue of immigration playing a large role in the UK’s decision to leave the EU, it is almost inevitable the UK will repeal or amend Directive 2004/38/EC pursuant to their power to do so under the repeal bill. With the UK to leave the EU at the end of March 2019, UK government ministers have already stated “it was a simple matter of fact that EU free movement rules would not apply after 2019.”[27] While there still does not appear to be any consensus as to a new immigration system, it is not unlikely such system will have tighter restrictions on international immigration into the UK once adopted.


Although the repeal or amendment of Directive 2004/38/EC may not come as a complete surprise due to the arguments surrounding immigration prior to the vote on Brexit, it just one EU law out of 40+ years of law that must be reviewed and codified. The broad, expansive power given to the government under the repeal bill coupled with the rise of the modern nationalism mindset could cause the UK to experience drastic change in policy in thousands of different subjects. If this happens, the UK could become one of the most influential countries in Europe prompting the revision of policies internationally. In short, the world should be keeping a close eye on Britain; the Redcoats may be coming.

[1] The History of the European Union, European Union (Oct. 24, 2017), https://europa.eu/european-union/about-eu/history_en.

[2] Id.

[3] Countries, European Union (July 2, 2018), https://europa.eu/european-union/about-eu/countries_en

[4] See generally 11 Advantages and Disadvantages of the European Union, Future of Working, https://futureofworking.com/11-advantages-and-disadvantages-of-the-european-union/.

[5] Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306).

[6] Chris Tognotti, Has Any Country Left the EU Before? Brexit Has Shaken the Continent, Bustle (June 24, 2016), https://www.bustle.com/articles/168909-has-any-country-left-the-eu-before-brexit-has-shaken-the-continent.

[7]  Alex Hunt & Brian Wheeler, Brexit: All you need to know about the UK leaving the EU, BBC News (July 31, 2018), https://www.bbc.com/news/uk-politics-32810887. It should be noted Brexit is a “shorthand way of saying the UK is leaving the EU – merging the words Britain and exit to get Brexit.” Id.

[8] Id; Brexit Negotiations: The Article 50 negotiation process and principles for the United Kingdom’s departure from the European Union, Eur. Commission, https://ec.europa.eu/commission/brexit-negotiations_en (last visited Sept 2, 2018).

[9] Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306).

[10] Eva-Maria Poptcheva, Article 50 TEU: Withdrawal of the Member State from the EU, Eur. Parliament (Feb, 2016), http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI.

[11] Id.

[12] Id.

[13] European Union (Withdrawal) Act 2018, c. 16 (Eng.).

[14] European Union (Withdrawal) Act 2018, Parliament UK, https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal.html (last visited Sept 2, 2018).

[15] Brexit Negotiations: The Article 50 negotiation process and principles for the United Kingdom’s departure from the European Union, supra note 8; Tognotti, supra note 6.

[16] EU Withdrawal Bill: A guide to the Brexit repeal legislation, BBC News (Nov 13, 2017), https://www.bbc.co.uk/news/uk-politics-39266723.

[17] Hunt & Wheeler, supra note 7.

[18] Denis MacShane, It wasn’t austerity that lead to Brexit, it was nationalism – and Nicola Sturgeon knows it, Independent (Sept 27, 2016), https://www.independent.co.uk/voices/brexit-caused-by-austerity-nationalism-nicola-sturgeon-snp-scotland-same-line-a7332521.html

[19] Id.

[20] Rich Lowry, Brexit and the Case for Modern Nationalism, Politico (June 22, 2016), https://www.politico.com/magazine/story/2016/06/yes-to-brexit-213984

[21] Id.

[22] See Jennifer Jackson-Preece, Is nationalism to blame for the post Brexit vote divisions?, The London School of Economics and Political Science (July 4, 2016), http://blogs.lse.ac.uk/politicsandpolicy/is-nationalism-to-blame-for-the-post-brexit-vote-divisions/.

[23] Hunt & Wheeler, supra note 7.

[24] Ottavio Marzocchi, Free movement of persons, European Parliament (March, 2018), http://www.europarl.europa.eu/factsheets/en/sheet/147/free-movement-of-persons

[25] Id.

[26] Id.

[27] Brexit: UK-EU freedom of movement ‘to end in March 2019’, BBC News (July 27, 2018), https://www.bbc.com/news/uk-politics-40734504