Common Rulebooks and Frictionless Borders: The UK's Redesign of the European Union
Article 50 of the Treaty of Lisbon was intended to permit and to facilitate the passive withdrawal of a state from membership of the European Union (EU), leaving the legal arrangement of the EU unaltered. It was not intended that a member state would exploit the legal entitlement to exit the EU in an attempt to modify the legal situation of the EU.
In the context of Brexit, Article 50 was intended to bring about a situation whereby once the relationship between the UK and the EU was formally severed, any future trading or other connection between the two would be “under the EU’s current approach of basing future relationships on existing precedents for cooperation with third countries” (White Paper, 2018: 58). It was not intended that a departing member state would reject these precedents as “not sufficient to deal with a third country whose financial markets are as deeply interconnected with the EU’s as those of the UK are” (White Paper, 2018: 29). It was not intended that a departing member state would seek to be an “active participant, albeit without voting rights” in relation to key areas of EU competence (White Paper, 2018: 22). And most decidedly it was not intended that, under the guise of securing “new forms of dialogue” to ensure the “practical and flexible” implementation of a new relationship with the EU (White Paper, 2018: 84), the departing member state would launch a bold and pointed strike at two of the most distinctive elements of the EU’s legal architecture: the principles of direct effect and of the supremacy of EU law (see White paper, 2018: 84).
We are informed that the “UK’s negotiating team will now engage with the EU’s at pace” (White Paper, 2018: 97). If the EU’s negotiating team is to successfully repel the UK’s now clear intention to alter the EU’s legal foundations, it must as a matter of urgency look to see whether it has legal mechanisms which it can deploy to bring the UK government under restraint for the remainder of the negotiating period until the UK’s planned exit on 29 March 2019.
The suspicion that the UK government was intent on abusing the legal right which Article 50 grants to member states arose very soon after the referendum outcome. As the decision in R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant)  confirmed, the UK’s original proposed mode of exit from the EU was not compatible with its own constitutional arrangements, and, therefore, was not in accordance with a core requirement of Article 50. It has since become clear that the UK government is rather more concerned to influence the future shape and direction of the European Union than it is with forging a new place on the global stage. In this regard I think it instructive that the White Paper often adopts a narrative style in which the UK and the EU are presented as entirely equivalent entities. For example, the document asserts that new governance arrangements must “reflect the UK’s and the EU’s status as key global players” (2018: 87). Further, it claims that the “UK and the EU have set the global standard for the protection of human, animal and plant health” (White Paper, 2018: 23). Finally, “the UK and the EU sit at the heart of the rules-based international system as champions of multilateralism” (White Paper, 2018: 51).
There is a moral grounding to the UK’s claim to an equivalent status to that of the EU collective. The White \Paper informs us that the UK operates higher standards than the EU collective, supposedly “shaping the EU’s rules throughout its membership” (White Paper, 2018: 20). In terms of competition policy, the UK “has gone further than EU minimum standards” (White Paper, 2018: 39). Its “world leading climate ambitions...are more stretching than those that arise from its current obligations under EU law” (White Paper, 2018: 40). It “exceeds EU minimum standards in a number of areas, such as parental leave and flexible working arrangements”, and in matters relating to consumer protection (White Paper, 2018: 40-41).
The UK has a vision for the European Union which can only be realised if it stands figuratively outside/beyond the European Union. This is what is truly entailed in the idea, expressed in the executive summary, of a UK that “leaves the EU without leaving Europe” (White Paper, 2018: 11). And what is the UK’s design for the EU? It will come as no surprise that the UK’s proposed mobility framework, if countenanced by the EU negotiators, would erase several decades of progressive judicial decision making governing the migration of women, part-time workers and third country national family members. The framework expressly privileges the economically active migrant. It is the “business...services” the “talented people” the “tourists” and “students” able to “benefit from world leading universities and the cultural experiences the UK and the EU have to offer” (White Paper, 2018: 33) who are to be at the centre of the UK’s redesign of the European Union’s body of rules and principles governing the free movement of persons. But it is the UK government’s audacious appropriation of the EU’s founding principles relating to the free movement of goods that betrays its revolutionary ambitions. In place of the common market, the UK offers a common rulebook. In place of the free movement of goods (which, together with the movement of persons, provides the mainstay of the EU internal market) the UK guarantees only frictionless borders. In short, after exiting the EU, the UK seeks to ensure that “operational cooperation” between the UK and the EU proceeds “on the basis of a different legal relationship” (White Paper, 2018: 56).
There is a lesson to be learned from the Brexit saga. The greatest threat to the preservation of a legal order comes in the guise of a subject of that legal order who exercises a legal right in ways which were not intended when the legal right was conceived. The UK is a subject of the European Union legal order. From the outset of the Brexit negotiations it has used Article 50 in ways which the EU could never have intended. We might call such usage an abuse.
All references to the White Paper are to numbered pages, not numbered paragraphs.
The idea that the abuse of a legal right can have law making capacity is drawn from Walter Benjamin’s 1921 essay, Critique of Violence.
Benjamin, W. (1995) “Critique of Violence”, in Demetz, P. (ed.), Walter Benjamin: Reflections: Essays, Aphorisms, Autobiographical Writings, New York: Schocken Books, 277-300.
R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant)  UKSC 5
Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 3, 2007, 2007 O.J. (C 306) 30 [hereafter Lisbon Treaty].
White Paper: The Future Relationship Between the United Kingdom and the European Union, July 2018 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/725288/The_future_relationship_between_the_United_Kingdom_and_the_European_Union.pdf