Abstract
Reviewed by: Paul Daly (pd309@cam.ac.uk ), University of Cambridge, UK
As I write, in the summer of 2018, there is tremendous noise in British politics: cries of frustration from those opposed to the United Kingdom’s departure from the European Union; howls of outrage from those who fear Brexit will not loosen the ties of EU law; and confident pronouncements from officials that the UK will be ready—with stockpiled food and medicine—for even the hardest of Brexits.
Amidst the hubbub, however, only one noise really matters: the slow ticking of the clock. By operation of law, the process triggered with great fanfare by the service of a notification under Article 50 of the Treaty on European Union on 29 March 2017 will come to an end two years later, on 29 March 2019—deal or no deal—unless the period is extended by unanimous agreement of the EU member states or by some act of lawyerly ingenuity. At that point, the UK will become a “third country” in the eyes of EU law. It will be as if a previously unknown landmass, equipped with a developed legal system and a powerhouse economy, had suddenly emerged on the other side of the Channel.
Those who wish to think about the post-Brexit framework coolly and calmly, concentrating on the ticking clock rather than on the noise emanating from a fevered British body politic, will enjoy this collection. The primary merit of this collective endeavour is that it dispassionately lays out the basic options from which the EU and, primarily, the UK can choose—a move to the European Economic Area and European Free Trade Association (think Norway); a series of bilateral agreements (think Switzerland); or a Free Trade Agreement (think EU-Canada Comprehensive Economic and Trade Agreement (CETA))—and considers the implications for various areas of economic activity and public policy.
Challenges abound. In the first chapter, Valerie Hughes describes the difficulties the EU and the UK will face in the World Trade Organization as they attempt to develop post-Brexit “UK-specific” trading arrangements (28). Challenges of an even greater magnitude are created by the UK’s withdrawal from the EU regulatory ecosystem. Anything other than a Norway-type relationship will have serious repercussions for the UK economy. This has two dimensions—one practical, one legal.
Taking NAFTA’s effect on the North American automotive industry as his template, David A. Gantz describes the “considerable costs” that any new trading arrangement would impose on the day-to-day practice of importing and exporting components and finished products, as companies based in the UK and used to frictionless, just-in-time, cross-border trade find themselves forced to grapple with proof-of-origin requirements (65).
The legal dimension is given detailed treatment in a four-chapter section on financial services. Brexit will bring to an end the automatic access to EU markets enjoyed by UK-based firms. As Maziar Peihani explains, the passporting regime under which “[a] firm that is authorized by a regulator in one member state is… allowed to carry out the same permitted activities in another member state” (90) will be replaced by a “far less attractive” equivalence regime with much more “limited scope” (97), unless the UK opts for a Norway-type relationship (in which it would have much less of a say than at present over the rules in force). Equivalence would, as Matthias Lehmann and Dirk Zetzsche observe, depend on the benevolence of the competent EU regulatory authorities, who will keep a watchful eye for aggressive deregulatory moves from the UK post-Brexit, and make it necessary for “independent subsidiaries” to be established in an EU member state in order for a company to benefit from the frictionless trade guaranteed by the EU’s internal market (119).
A common theme running through the contributions is that Brexit, despite the rhetoric about “taking back control,” is unlikely to make an immediate difference to British law. It is true, as Colm O’Cinneide points out, that Brexit “poses a potential threat to all EU standards” (300). Yet in their contributions on intellectual property, Luke McDonagh and Marc Mimler respectively see little realistic scope for the development of a bespoke, British IP regime: as McDonagh puts it, the “slogan” is a “comforting” one, but the reality is that things will “remain much the same” post Brexit (190). In environmental law, notwithstanding “[c]oncern about the inevitable lowering of UK environmental standards” (209), for Markus Gehring and Freedom-Kai Phillips, “vast differences in environmental standards would not be acceptable to UK trading partners in the future” (219).
Damilola S. Olawuyi sees Brexit as providing “momentous opportunities” for Britain to “revitalize its environmental justice architecture” (235), but this optimism is countered by Richard Macrory and Joe Newbigin’s observation that Brexit involves British withdrawal from the “sophisticated” enforcement mechanisms of the EU’s regulatory ecosystem (242), which is especially pertinent given, in Stephen Tromans’ words, the need for “continued vigilance and commitment” so environmental standards do not “slip” (266). Some buccaneers hope that Britain will (re)emerge as a free trade colossus, striding the waves toward a new global trading order—but as Thomas Cottier notes, in the current geopolitical climate, signatories to bilateral agreements are unlikely to reap great rewards; hard work will be required, over many years, in “plurilateral or multilateral settings” (84). Visions such as Armand de Mestral’s “Atlantic Free Trade Area” comprising “all of Europe and all of North America” are unlikely to materialize soon (44).
Given these challenges—and the possibility that the UK might crash out without a deal, magnifying the challenges still further—many continue to hope that the UK will change its mind. Helen Mountfield, QC, persuasively argues that a revocation of the Article 50 notification—cancelling Brexit—is legally possible. Politics, however, is another matter. A revocation would be taken as an affront to the millions who voted to leave in the 2016 referendum. Absent a significant political realignment, a new era will dawn next March. The clock continues to tick.