Post-Brexit Options for the UK: New Legal Analysis

On 16 November 2018 the SRI (Strategic Research Initiative) and the CBR, the Centre for Business Research, University of Cambridge, held a conference at Peterhouse College in Cambridge on Brexit with the aim of encouraging interdisciplinary discussion amongst academics and further research on the implications of the UK leaving the EU for public policy.

While politicians in Westminster were arguing about the merits of Theresa May, the Prime Minister’s draft Withdrawal Agreement simultaneously delegates to the conference gave their verdict on it. They had actually read the 585 pages of what has been termed the “divorce” bill and the accompanying shorter seven page political agreement which paves the way for our future trade deals. Meanwhile some politicians were admittedly having difficulty getting to grips with it.

In this special 57 minute audio podcast three of the Conference guest speakers give their views on the Withdrawal Agreement.

All three took issue with the views expressed in the mainstream media that the Agreement was a dogs’ breakfast. They argue that it is a very well-crafted and thought through legal document and that the EU and UK negotiating teams’ have shown considerable skill in drafting it.

Simon Deakin, Director of the Centre for Business Research and Professor of Law at the University of Cambridge said that both the EU and UK negotiators need to be congratulated on it. But he expressed concerns about Citizens rights.

Deakin key quote: “It is a very soft form of Brexit in which we continue to abide by many standards in terms of labour law and the environment and many people like that. But people who supported Brexit wanted to use it as an opportunity to deregulate these standards, they would be unhappy. People who are concerned about citizens’ rights will also be unhappy, because it has some protections for EU citizens here and those UK citizens living in mainland Europe, but it doesn’t go far enough in many respects, it doesn’t give UK citizens living in mainland Europe the right to live and work outside the EU host state they have been living within. We’re under protecting EU Citizens abroad.”

Deakin gives a powerful summary of how he thinks the Agreement will play out for the UK in the longer term in terms of the devolved assemblies, and its economic impact.

“Brexit here as elsewhere puts enormous pressure on our existing constitutional arrangements and begins to call into question the legitimacy of the way in which Brexit has been conducted because significant voices such as the devolved administrations would argue they have been left out.

“It is legally impressive to have produced a text of this nature so quickly. People drafting it on both the EU and British side deserve to be congratulated. We do need law to play a role here. Without the enormous effort to put into legal terms this big political shift we would be facing a much more chaotic and difficult situation. The deal that has been offered by the EU is infinitely preferable to no-deal; no-deal will not just put at risk our economy but many aspects of social provision including things as basic as the free circulation of medicines and the free circulation of some goods and no-deal could easily lead to food shortages and the mothballing of other aspects of our industrial capacity.

“But on the down side it doesn’t sufficiently protect the rights of UK citizens living on the mainland and our environmental and labour rights because the non-regression clause only applies up to the end of the transition period. It could have provided for a more dynamic forward looking alignment of UK law with those standards. The customs territory has been designed as a function of the need to avoid a hard border in NI and this is understandable but it underplays the degree to which we need a customs union within the EU.”

He went on to say that the Agreement was a compromise: “It’s the compromise and that