Bridge Over Troubled Legal Water? Legal Issues Of The Brexit Transition Period

Professor Steve Peers*

Compared to famous Florentines, Theresa May’s recent speech on the UK’s Brexit plans inevitably owed to a greater extent than to Machiavelli than Leonardo da Vinci. Nevertheless, it gave a fossil oil indication of the basic legal architecture that the UK authorities would similar to regulation its human relationship alongside the European Union for a transition menstruation after Brexit Day. I receive got previously summarised together with commented upon the primary points of the Florence speech, but in that location is to a greater extent than to say on this legal framework – together with also on the rules which would apply to EU27 citizens inwards the UK during the transition period.

Legal framework

First of all, is a transition menstruation after Brexit Day fifty-fifty legally possible? If so, what provision of European Union constabulary would apply?

Article 50 TEU, which sets out the basic rules on Member States’ withdrawal from European Union membership, is soundless on the number of whatever transitional menstruation after the withdrawal date. However, it mightiness travel noted that Article 49 TEU, governing accession, is as soundless on transitional periods after joining the EU; nevertheless such periods are an established characteristic of the accession process.

In its EU Withdrawal Bill would take all these provisions, instead retaining pre-Brexit European Union rules together with ECJ judgments inwards forcefulness pending potential amendment yesteryear authorities or Parliament. Pre-Brexit ECJ judgments would retain their forcefulness dependent area to such amendments or overruling yesteryear the UK Supreme Court, together with UK courts would receive got an selection to receive got post-Brexit ECJ example constabulary into account. The Bill would also take the regulation of damages liability for breach of European Union law, together with would non maintain the European Union Charter of Fundamental Rights as role of retained European Union constabulary inwards the UK (on the latter point, run into give-and-take here).

Technically, anything which the UK agrees to inwards the Withdrawal Agreement tin travel incorporated into UK constabulary easily enough, since clause nine of the Withdrawal Bill would give the UK authorities unlimited powerfulness to improve whatever UK laws to give effect to that Agreement. (Note, however, that the Bill could travel amended inwards Parliament as regards whatever of these points earlier it becomes an Act of Parliament). So the number is non the capability of the UK authorities to give effect to the Withdrawal Agreement, but its willingness to negotiate on these issues.

After her speech, the Prime Minister deliberately avoided answering a query virtually whether the UK would apply post-Brexit European Union constabulary during the transition period, maxim it was a thing for negotiation. In fact, in that location is about flexibility on this, since the EU27 negotiation seat does non receive got whatever persuasion on that point. (Remember that the EU27 negotiation seat on transitional issues volition travel enlarged later). In the meantime, UK cabinet members receive got tried to dominion this prospect out. (Note that the spoken language refers to keeping ‘existing’ together with ‘current’ European Union constabulary inwards force).

There is less flexibility as regards the legal effect of European Union law, where – to recollect – the EU27 seat is that ‘existing European Union regulatory, budgetary, supervisory, judiciary together with enforcement instruments together with structures’ should apply. The combined reference to ‘judiciary’ together with ‘enforcement’ structures advise that the ECJ’s electrical flow jurisdiction, together with the electrical flow legal effect of European Union constabulary inwards the UK, should apply. While the Prime Minister obliquely referred to the ECJ, she hoped that its role could travel terminated early on as regards the UK; together with the UK government’s seat on the legal status of EU27 citizens (no ECJ role; selection to receive got occupation organisation human relationship of ECJ rulings; incorporation of Withdrawal Agreement into UK constabulary but no special status), if extended to the transitional rules inwards the Withdrawal Agreement, would autumn curt of the EU27 position. Equally, piece it is non expressly mentioned inwards the electrical flow negotiation position, the EU27 might, when amending that position, debate that the European Union Charter should still apply to the UK during the transitional period. (Note that the Charter does non apply to all actions of Member States, but only applies to Member U.S. when they implement European Union law). 

Three farther points. First, what happens to the seat of non-EU countries as regards the UK? They are parties to about treaties alongside the European Union alone, together with to about treaties alongside the European Union together alongside its Member States. The legal issues arising inwards this observe during the transitional menstruation volition receive got to travel addressed.

Secondly, what happens after the goal of the transitional period? In particular, what if it is deemed desirable on both sides to travel on the arrangement, inwards whole or part? In that case, the special decision-making dominion applying to Article 50 (see adjacent point) volition receive got expired, together with hence the normal decision-making rules of European Union constabulary volition apply. Depending on the content of what is carried frontwards then, this may require about unanimous voting together with fifty-fifty ratification yesteryear all Member States, although it should travel recalled that the European Union side tin determine to apply treaties provisionally pending national ratification.

That brings us to the most primal legal issue: tin the EU27 side include a transitional bargain inside the range of Article 50 inwards the starting fourth dimension place? The words ‘[t]o the extent…legally possible’ hint at about uncertainty on this point, presumably because of an declaration that Article 50 cannot extend to the regulation of legal relationships that are created after Brexit Day, but only to the regulation and/or final result of those created before that date. However, piece picayune is certainly at nowadays virtually how the ECJ mightiness translate Article 50, inwards my persuasion that interpretation is too narrow, given that Article 50 refers to taking occupation organisation human relationship of the framework for hereafter relations alongside the withdrawing state, together with Article 8 TEU refers to maintaining strong relationships alongside neighbouring non-EU countries. If this is correct, it follows that as long as the transitional bargain is limited inwards fourth dimension together with linked to the hereafter framework for relations – as both the EU27 together with UK side intend – in that location should non travel a legal problem. (On the other hand, in that location is cypher inwards Article 50 to require that anything inwards the withdrawal understanding must travel dependent area to ECJ jurisdiction, too the green dominion that only the ECJ tin dominion definitively on how to translate European Union constabulary for European Union Member States).

The importance of this is that the Article 50 understanding needs only a qualified bulk vote to travel approved yesteryear the EU27, without national ratification yesteryear Member U.S. (as confirmed inwards the negotiation directives). But the EU27 together with UK should ready a ‘Plan B’ inwards the lawsuit that about Eurosceptic devoted to a ‘WTO-only’ and/or ‘no deal’ human relationship betwixt the UK together with European Union brings a legal challenge. If such a challenge were successful, the ECJ mightiness anyway maintain the problematic parts of the treaty inwards forcefulness temporarily due to legal certainty; together with the UK together with European Union should aim to concur the impugned parts of the Withdrawal Agreement on the right legal reason as presently as possible, applying that novel treaty provisionally.

Extension of the Article 50 period

Some receive got suggested extending the negotiation menstruation for the Brexit talks instead – as Article 50 expressly allows for – controversy that a transition stage is no unlike from extending the negotiation menstruation anyway.  It’s truthful that legally the extension of the negotiation menstruation would travel simple: it requires only a unanimous vote of the EU27 Member U.S. (with no national ratification) required, addition the UK government, alongside no role for the European Parliament. As a thing of domestic UK law, arguably an Act of Parliament would travel required to this goal (note that the European Union (Notification of Withdrawal) Act, which gave the authorities powerfulness to invoke Article 50 pursuant to the Miller judgment, does non cry the number of extension).

But an extension to the negotiation menstruation would travel politically difficult. It’s non known whether the EU27 would give their unanimous consent, peculiarly given the awkward lawsuit that the UK would together with hence goal upward participating inwards the 2019 European Parliament elections. And inside the UK, announcing an intention to delay Brexit would probable hateful that Theresa May would straight off travel the centrepiece of a modern version of Da Vinci’s Last Supper – followed swiftly yesteryear the political resurrection of Nigel Farage.

Furthermore, it’s faux to say that in that location is actually no divergence betwixt a negotiation extension together with a transition period. First of all, during a negotiation extension the UK would still participate inwards the EU’s political institutions. Secondly, it’s certainly that in that location would travel no alter inwards the legal effect of European Union constabulary inwards the UK or the pith of European Union laws inwards the UK, together with that novel European Union laws together with novel ECJ judgments would travel on to apply, inwards the lawsuit of a negotiation extension – whereas those issues may, as discussed to a higher house together with below, travel addressed differently during a transition period.

Thirdly, inwards the lawsuit of a alter of hear inwards the UK on Brexit, remaining inside the European Union on the reason of a negotiation extension may travel unlike from rejoining the European Union after having left. This depends (a) on the resolution of about legal issues concerning Article 50 (Can the withdrawal observe travel rescinded? If so, must the European Union consent? If so, tin the European Union attach conditions? Or tin the Article 50 menstruation only travel extended indefinitely, alongside no farther negotiation taking place?) together with (b) on the extent to which the UK could rejoin on the same damage (Would the European Union receive got already removed the UK’s opt-outs from the Treaties? Would the UK rebate on the European Union budget receive got been rescinded yet?).

EU27 citizens

As noted already, the UK government’s intention to require European Union citizens to register if they come upward to the UK during the transitional menstruation is consistent alongside the European Union citizens’ Directive, which allows registration for stays longer than 3 months. Indeed, the Commission has reported that almost all European Union states register citizens from other European Union Member States. But a failure to register tin only travel punished yesteryear proportionate penalties, non expulsion or detention (see the ECJ ruling inwards Watson together with Bellman, concerning a prior version of this law). According to the ECJ ruling inwards Huber, Member U.S. may include information on European Union citizens inwards a database, but this tin only travel used for the role of administering European Union costless displace law; if they position information on European Union citizens inwards a criminal database, they must travel treated as alongside nationals of that Member State.

The Directive goes on to say that Member U.S. cannot insist that registration certificates must travel the sole method of checking entitlement to reside or whatever other right, since other forms of proving identity are possible; together with that Member U.S. tin only penalise European Union citizens for non carrying their registration certificates if they penalise their ain citizens the same means for non carrying ID cards (see also the ECJ judgment inwards Oulane). It follows that as long as the UK doesn’t receive got an ID bill of fare system, it could non penalise European Union citizens for non carrying registration certificates.

So piece registration of European Union citizens is permissible, the limits laid out inwards the legislation together with example constabulary position the to a greater extent than full general questions virtually ‘transition law’ raised inwards this weblog postal service inwards a item context. It would non travel credible for the EU27 to insist that the UK non register European Union citizens at all, peculiarly given that most of them practise the same thing themselves. But volition the of import limits on registration apply? It’s an of import query given the style of the UK Home Office to practise a ‘hostile environment’ for European Union together with non-EU citizens alike, together with the opportunity that absent the application of European Union example constabulary together with legislation to this issue, in that location could travel fines, detention, expulsion or other refusals of rights for European Union citizens who didn’t register, lost their registration certificate or forgot to acquit it. (All the same issues arise if the UK extends – as it could – the registration obligation to European Union citizens who were acquaint earlier Brexit Day).

If the EU27 together with UK concur that the existing European Union constabulary still applies together with the pre-Brexit ECJ example constabulary remains binding, inwards regulation the number is resolved, at to the lowest degree during the transitional period. But what if the UK breaches this agreement, or if in that location is about query virtually how the UK applies the requirement, or if in that location is about novel relevant ECJ example law? Then the of import questions volition travel whether the existing European Union constabulary remedies (direct effect, supremacy, damages) are still available; whether UK courts tin still inquire the ECJ questions; together with whether the UK courts are obliged to follow post-Brexit ECJ example law.

This issue, of import as it would travel for many European Union citizens resident inwards the UK, is only a microcosm of the legal issues raised yesteryear the transition menstruation – together with which the UK together with EU27 volition hopefully receive got fourth dimension to consider properly.

Barnard & Peers: chapter 27

Photo credit: Thousand Wonders

* *This weblog postal service was supported yesteryear an ESRC Priority Brexit Grant on 'Brexit together with UK together with European Union Immigration Policy'

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