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Brexit, A Drama: The Interregnum

Yearbook of European Law, Forthcoming

Oxford Legal Studies Research Paper No. 56/2017

65 Pages Posted: 23 Aug 2017  

Paul P. Craig

University of Oxford - Faculty of Law

Date Written: August 20, 2017

Abstract

In an earlier article I charted the legal and political events from David Cameron’s Bloomberg speech in 2013 until the outcome of the referendum, including the beginning of the legal challenge to the way in which Article 50 TEU could be triggered. This article continues the story, covering the period after the referendum to the present. The approach in the earlier article is preserved, employing the metaphor of an unfolding drama, with Shakespearian quotations appropriately chosen for each Act or Scene. This article therefore begins with Act 7, following on from Act 6 of the previous piece.

Act 7 is entitled ‘In Search of a Negotiating Strategy’, and is divided into three scenes. It introduces the leading political ‘players’ in the UK, the EU and the capitals of prominent EU Member States that shaped political developments over this period, and will continue to do so during the Brexit negotiations. The analysis then shifts to evolution of the ‘plan’, connoting choice between a hard or soft Brexit strategy, how this unfolded over the Autumn of 2016 and was clarified in the Spring of 2017. The final scene of this Act focuses on the fact that the Brexit plan as it evolved in Westminster was intended to be a ‘plan for the UK’, in which the devolved parliaments and assemblies would have voice. There was, however, a significant mismatch between Westminster rhetoric and political reality, and the views of the devolved assemblies were largely ignored both substantively and procedurally.

Act 8 is entitled ‘In Search of the Exit Trigger’. At the same time as the UK government was deliberating on its Brexit negotiating strategy, it was fighting a legal battle of its own making to ascertain the constitutional legal requirements for triggering Article 50 TEU. The government contended that this could be done through recourse to the prerogative, without seeking authority from Parliament. The claimants contested this assumption. The claimants won and the government lost, both in the Divisional Court and in the Supreme Court. The first scene of this Act, ‘the legal’, provides an overview of the central legal and constitutional arguments in the case. The second scene, ‘the political’, stands back and looks at the broader picture, arguing that this was a legal fight that the government was always likely to lose and never had to fight. The discussion concludes with reflection as to why the House of Commons was quiescent when afforded the opportunity for voice by the courts.

Act 9 continues the motif of search, being entitled ‘In Search of an Agreement’. The story picks up after the formal triggering of Article 50, beginning with the first scene, ‘reaction’, connoting the response of the EU to the Prime Minister’s letter triggering Article 50. The ink was barely dry on this letter, when she lost the first round of the negotiations. The UK had argued strenuously that discussion concerning withdrawal and future trade should proceed in parallel. This was rejected by the European Council, and prominent EU leaders. The negotiations were instead to be phased, such that discourse concerning trade would not begin until sufficient progress had been made on withdrawal. The negotiations did not in fact begin until 19 June 2017, because of the intervening UK general election. It is the subject of the second scene, ‘temptation’, which explains why the Prime Minister could not resist calling a snap election, even though she had asseverated that she would not do so. The rest, as they say, is history, with the prospects of Prime Ministerial electoral triumph dashed on the rocks of shifting voter affiliation within but a few weeks. The scene ends with discussion of the electoral impact on the unfolding Brexit negotiations. The final scene, ‘negotiation’, charts the way in which discussions concerning the key issues of the withdrawal agreement, people, money, and borders have unfolded thus far, including the fault lines concerning future trade relations between the UK and the EU.

Keywords: Brexit, Withdrawal, Prerogative, EU, Negotiation, Hard Brexit, Soft Brexit

Suggested Citation

Craig, Paul P., Brexit, A Drama: The Interregnum (August 20, 2017). Yearbook of European Law, Forthcoming ; Oxford Legal Studies Research Paper No. 56/2017 . Available at SSRN: https://ssrn.com/abstract=3022781

Paul Craig (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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