Joelle Grogan (Middlesex University)

From 11.01 pm (or 12.01 pm Brussels time) on 31 January 2020, the UK will no longer be a Member State of the European Union. The Withdrawal Agreement between the UK and the EU which determines the process of the UK’s departure from the EU was signed in Brussels on 28 January 2020. Four years of political and legal dysfunction have taken their toll, and the message of ‘Get Brexit Done’ has undoubtedly great appeal to an exhausted, frustrated and deeply divided British electorate. Following the December election, the Conservative party have a significant majority in Parliament, and Prime Minister Boris Johnson is unlikely to face any significant domestic opposition on his policies. For all the rancorous debate over its initial introduction and content, the European Union (Withdrawal Agreement) Act 2020, which was required for ratification of the Agreement and its implementation in the UK, passed the new Parliament with little coverage and (outside the House of Lords) less debate.

Marking the British exit from the EU, the Department for Exiting the European Union along with its minister will end their functions and tenure at the same minute as the UK departs from the Union. For all external PR, it appears to be a fait accompli: Brexit is done. However, the reality is that Brexit has only just begun.

Brexit is a process, not a minute past midnight

Following the 31 January, the process of UK withdrawal from the EU will begin in earnest. The UK will enter the transition period as dictated under the terms of the Withdrawal Agreement. With some exceptions, the UK will continue to implement and apply EU law including any new legal provisions which have been adopted by the EU, though without having direct control or input over them. (Of itself, this raises a whole host of judicial oversight, and democratic input concerns, particularly when paired with the provisions of the Withdrawal Agreement and the long-term incorporation and necessary influence of EU law beyond the transition period).

During the transition period, the UK and EU is expected to negotiate, conclude and ratify a new treaty, based on the agreed provisions of the Political Declaration, which will govern the future relationship between the UK and the EU. Unlike Article 50, which will no longer be relevant, the transition period does not have a mechanism for extension based on a request from the UK and the unanimous agreement of the EU27. The transition period is due to end in December 2020, and the Withdrawal Agreement allows for only one extension of two years until 31 December 2022. While it has taken three years and ten months for the ratification of the Withdrawal Agreement, there is an expectation that one of the most complicated, and comprehensive, agreements in UK history will be concluded within a fraction of that time.

Even at its most superficial, this future agreement must address not only issues of trade and economic cooperation, but also questions of services and mobility, transport and aviation, data transfer, investment, competition and state aid, law enforcement and criminal justice, and even matters of foreign policy, security and defence. In absolute terms, the ostensibly intractable issues of the Withdrawal Agreement – citizens’ rights, and the financial settlement though with the exception of the Northern Ireland border – would appear to be relatively straightforward in comparison.

The UK will be asked to (re)consider the contentious point of the guarantee of a level playing field between the UK and EU on areas such as consumer, worker, and environmental protections. This guarantee had already been moved from the legally-binding Withdrawal Agreement to the Political Declaration on the future relationship in an effort to make the former more palatable to the then UK Parliament. The concerns for legal certainty, judicial review and oversight, and democratic input which have been consistently raised in context of the Withdrawal Agreement will be compounded in a future agreement between the UK and the EU particularly where time to determine the legally-enforceable details, rather than political promises, is (currently) eleven months and a no-deal Brexit is still a default legal possibility.

A UK Parliamentary majority – as evidenced by the quiet passage of the EU (Withdrawal Agreement) Act 2020 – will not necessarily guarantee an optimal outcome in Brexit negotiations. For the EU, Brexit has not presented the existential crisis that it has for the internal constitutional mechanics and politics of the UK. A far more serious existential threat to the EU is how to prevent and effectively respond to member states (and in particular, Hungary and Poland, which are subject to special EU scrutiny under Article 7(1) TEU) in breach of the EU’s fundamental value of the rule of law. It is by no means certain that the EU and UK in eleven months can find a way to ensure the UK’s continued access to the internal market which, from the EU member states’ perspective, neither compromises the functioning of the Single Market and the four freedoms, nor incentivises bilateralism as concerns for a downward regulatory trajectory mount, nor causes severe economic damage to the UK and the EU.

Few changes on 1 February

For the great majority of those waking in the UK and across the EU on 1 February 2020, the changes brought about by withdrawal are largely unobservable. However, some may quickly be noticed: there will be no British MEPs, nor a British Commissioner, and the British Prime Minister will no longer be part of the EU Council. UK citizens will no longer be EU citizens, nor be guaranteed its related rights and freedoms. New questions of the mobility of UK and EU citizens will arise as the UK shifts away from EU freedom of movement, and UK businesses will still await certainty as to the future of their operations, supply chains, and costs for trade as outside the EU. Member States too will begin to treat the UK as beyond the scope of EU law and outside of the obligations of mutual trust. For example, some EU member states have already indicated that they will not recognise a European Arrest Warrant from the UK when it leaves the EU. We still don’t know, and cannot estimate, the full extent of these changes.

In all of the uncertainty as to what the future will look like, there is one certainty: Brexit is done, and Brexit has only just begun.

The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog

Joelle Grogan is a Senior Lecturer in Law at Middlesex University. This post has been published in cooperation with LSE Brexit Blog

Photo Credit: “Cool Britannia?” by greensambaman is licensed under CC BY-NC-ND 2.0