Inside Brexit: Legal background to the UK’s ongoing battle

By Georgia Ray
Georgia Ray is a junior at the University of Pennsylvania studying Cognitive Science and Urban Studies.

The European Union is built on the foundation of mutual support between member nations. Following a disastrous economic downturn for Germany after World War I (the US dollar was worth 4,210,500,000,000 German marks) [1] that ultimately provided kindling for Hitler’s ideology [2], European countries vowed to disallow this type of economic destitution that rallies political radicalism by creating the European Union. The EU provides resources and monetary support for all member states, resulting often times in an unequal payout from those that are more prosperous, such as the United Kingdom. This pattern of economic contribution is something the British population supported in the post-war years as increased taxes seemed a small price to pay for lasting European peace. However, in the 21st century, as a new wave of nationalism swept the world, the British population started to question whether the net 9 million pounds a year [3] they were paying to support other EU member nations was really worth it. In a referendum held in June 2016, 52% of voters decided it was not [4]. Thus, Brexit was born.

Unfortunately for those in support of Brexit, while the European Union was born as an economic institution, it has evolved into an interconnected coalition of states, reliant on each other for everything from trade to education to legal precedents [5]. An extradition from this has proven more challenging than the average Brit could have anticipated, introducing a host of political, legal, and economic challenges. While the economic and political implications of Brexit are interesting in their own right, this article will primarily focus on the legal challenges presented.

Leaving the European Union is allowed in the framework of the organization under Article 50 which reads in part “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” The Article goes on to specify that the ongoing relationship between the European Union and the newly divorced member state would proceed under Article 218(3) which dictates how the EU treats all third parties. Finally, Article 50 goes on to establish that “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.” This period has been extended by the EU and the UK twice now, and Prime Minister Boris Johnson recently requested a third extension, which has also been approved.

Due to these articles in the EU’s legal framework, precedent exists for the extensions undertaken by May and Johnson. There is legal precedent within the UK for this action as well. Although Johnson has personally stated that, “We will leave the EU on 31 October, deal or no deal” [6], in his acting role as Prime Minister, he must act differently. While Johnson desperately tried to push the UK towards its Oct. 31st deadline by suspending parliament or fast tracking his Brexit deal, parliament instead opted to vote for the Benn Act which requires the prime minister to send a letter to the EU requesting an extension[7].

 That said, as aforementioned, the extension must be unanimously approved by the EU member states and the state that wishes to leave. In the past, the likes of French President Macron have voiced their hesitancy on approving another extension. Although passed in October, come January, if another extension is requested, even one EU leader could force the UK into a no deal Brexit.

Although legally allowed to happen, this no-deal Brexit could have catastrophic consequences. In this timeline, there would be no transition period, no trade alliances set up, no new laws and regulations, no border crossings organized, and no answer to the question of Northern Ireland. One of the problems that have been key in past Brexit negotiations is the issue of the border between Ireland and Northern Ireland. Although a historically contentious area, it is now a border that is crossed easily and without question. In the event of Brexit, this would get more complicated as there would have to be regular border checks for people going about their day to day lives, and it would likely disrupt the delicate balance between Irish and British control in the region. This problem would only be exacerbated with a no deal Brexit. Former Prime Minister May tried to address this problem through the use of a “backstop” which would essentially leave the border as it is now. This was rejected as failing the wants of the British people, who called it a ceremonious leaving of the EU without the actual changes [8]. Johnson wanted a hard border, again potentially exacerbating long standing tensions in the region. It was also rejected.

This recently approved extension does not resolve the issues that the UK and the EU are facing. It merely pushes them off until January 2020. Eventually, this region of the world is going to face the hard fact of a divorce and its unintended consequences, or, as some are increasingly speculating, they will hold another vote and decide not to leave after all. Only time will tell. Both are legally viable, if not realistically perfect.


Sources

[1] Marks, Sally. “The Myths of Reparations.” Central European History 11, no. 3 (1978): 231–55. doi:10.1017/S0008938900018707.

[2] Anonymous. “The History of the European Union.” European Union, September 20, 2019. https://europa.eu/european-union/about-eu/history_en.

[3] “The UK's EU Membership Fee.” Full Fact. Accessed October 29, 2019. https://fullfact.org/europe/our-eu-membership-fee-55-million/.

[4] Walker, Nigel. “Brexit Timeline: Events Leading to the UK's Exit from the European Union.” Commons Library briefing - UK Parliament, October 24, 2019. https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7960.

[5] Anonymous. “The EU in Brief.” European Union, October 8, 2019. https://europa.eu/european-union/about-eu/eu-in-brief_en.

[6] “Tory Leadership: Rivals Clash over Support for No-Deal Brexit.” BBC News. BBC, May 25, 2019. https://www.bbc.co.uk/news/uk-politics-48403705.

[7] “The Benn Act.” The Institute for Government, September 27, 2019. https://www.instituteforgovernment.org.uk/explainers/benn-act.

[8] “Brexit: All You Need to Know about the UK Leaving the EU.” BBC News. BBC, October 22, 2019. https://www.bbc.co.uk/news/uk-politics-32810887.


The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.