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A Proposed Solution for Exiting the EU

A Two-Stage Process for the UK’s withdrawal

  • I have explained in my first Landmark blog post that article 50(2) of the TEU envisages a two-stage process- a withdrawal treaty and thereafter a more fleshed out future framework for UK/EU relations. The future framework for UK/EU relations will presumably need to give effect to the desire for “sovereignty” over UK law-making which is said to have been why some people voted to leave the EU. But the future framework will also need to recognise the advantages (particularly in relation to the environment) of continuing to maintain cooperation and harmonisation of legal frameworks. I suggest the following outline of how an initial withdrawal treaty, and thereafter a more substantial further treaty might operate (with particular regard to environmental law). In my view, this course best achieves the demand that the UK retains sovereign control over law-making (since there is now a countervailing risk that huge changes which neither parliament nor the people chose could be given effect by the new treaty).
  • Firstly, the withdrawal treaty pursuant to the article 50 negotiations will provide that  until the end of a transitional period EU law:
    • Which was in force at the date of departure (e.g. 2019); and
    • Which comes into force during a subsequent transitional period
  • shall continue to have effect over the UK as though the UK were a member of the European Union (thus, the UK will, in respect of environmental law, remain subject to the jurisdiction of the ECJ; and to principles of EU law throughout the transitional period following withdrawal). This preserves the legal framework which has been approved by parliament up to now, until such time as parliament has an opportunity to reconsider it.
  • The position after the transitional period will depend upon the terms of a further future treaty with the EU. The envisaged framework will see continued harmonisation and cooperation on most environmental matters. There will be some scope for the UK to deviate however. The construction of the future framework could be informed by the relationship enjoyed between Norway and the EU (though I do not suggest the UK joins EFTA).

Norway as an Example for a Bespoke Future Relationship for the UK/EU

  • The history of the relationship between the EU and Norway illustrates how the UK can sensibly manage a divergence from the EU with a legislative and judicial structure independent of the EU, but without major disruption to either party. The EU/Norway relationship also provides a model for the transition process.
  • By the EEA agreement (to which Norway, Iceland and Liechenstein on the one hand, and the EU states on the other are contracting parties), Norway essentially agreed to most of the EU laws as they stood in 1992 including the four freedoms of movement- workers, capital, goods and services, as well as state aid, competition, consumer protection and parts of environmental law. The EEA Agreement does not cover common agricultural policy, fisheries, customs union, common foreign and security policy, justice and home affairs, taxation, or economic and monetary union. Norway’s EU-based environmental law is governed by Article 73 and Annex XX to the EEA agreement which incorporate provisions mirroring the provisions of the Treaty on European Union on the environment. For reasons bespoke to Norway’s economy the Habitats and Birds Directives are notable exceptions to the environmental acquis applying to Norway. The EFTA/EEA countries currently enjoy powers to influence the incorporation of EU law, either through (a) suggesting amendments to the EU law; (b) contesting its applicability to the EEA states; or (c) through a right of veto (though this has never been exercised). There is a necessarily complex, but sophisticated infrastructure and set of rules which govern how the EEA countries which are not within the EU incorporate and keep pace with relevant EU legislation (so as to retain harmony with EU countries in relevant areas), while retaining their sovereignty over areas which are not covered by EEA legislation. There are well-developed arrangements for courts to determine disputes over violations of these arrangements. Norway acceeds to the jurisdiction of the EFTA court which is not bound by, but often follows the case law of the ECJ.
  • There is no reason to retain the same mix of harmonisation and divergence of law in the future UK/EU relationship as is enjoyed by Norway now. The UK could continue to harmonise on all environmental law and retain the jurisdiction of the ECJ over its interpretation and application if it wished. Or it could retain harmony on legislation and the jurisprudence of the ECJ up to, say 2019 when it leaves the EU, and thereafter either diverge or shadow EU environmental law. In that case a new international court would probably need to be established. Rather than the notional veto enjoyed by Norway, there could perhaps be a system equivalent to the negative resolution procedure used for statutory instruments in parliament by which the instrument becomes law after 21 days unless objection is raised (following which there is debate). Adopting something along the lines of these objection procedures would secure the preservation of British sovereignty while at the same time securing the benefits of continued cooperation and harmonisation on EU law.