The Prime Minister, Mrs Theresa May, gave a speech on 17 January setting out her main objectives for Brexit negotiations with the EU.
Most importantly, she stated that the UK government does not seek membership of the EU single market, but instead will seek the greatest possible access to it through a comprehensive free trade agreement with the EU. The speech acknowledged the indivisibility of the four freedoms of the single market. This means, for example, it is not possible to negotiate membership of the single market with exceptions such as the free movement of workers.
We have already anticipated the UK being outside the EEA and therefore outside the single market as a result of Brexit. The EEA model is the only existing model for a non-EU country to be in the single market, and if this had been followed there would have been relatively little change in the legal conditions affecting the conduct of business between the UK and the EU. On leaving the EU and the single market, the EU treaties, including the EU free movement rules, will cease to apply in relation to the UK. Also EU Regulations, which as a matter of EU law are directly applicable in the member states, will cease to apply in the UK as from the exit date, unless an appropriate savings measure is adopted. Directives, by contrast, require implementation into the national laws of member states, so existing primary legislation transposing Directives into UK law will not be affected by a Brexit.
The Prime Minister stated that she wants to reach agreement with the EU about the future partnership within the two-year period of the notice under Article 50 (of the EU Treaty), with a phased process of implementation thereafter. This two-year period seems ambitious compared with the typical time period for negotiating a free trade agreement, even if the complexity of the exercise will to some extent be reduced by the decision to leave the single market.
In order to negotiate the close trading relationship with the EU which the Prime Minister expressly seeks, it could be necessary for the UK to agree to apply a range of specified EU law measures in UK law. EU representatives might seek this in order to achieve a level playing field for trading purposes, but this is speculation at this stage. In any event, the Prime Minister reiterated in her speech that the repeal of the European Communities Act 1972, resulting from Brexit, will be accompanied by measures to convert the existing body of EU law into UK law. This will be achieved by the proposed "Great Repeal Bill" (which was announced in a previous speech) which could also, perhaps more appropriately, be termed a "Great Preservation Bill". This could be expected to apply especially to EU Regulations which would otherwise cease to apply on a Brexit, and also to statutory instruments implementing EU Directives, where the statutory instruments were adopted pursuant to the European Communities Act 1972 and would otherwise fall away on a repeal of that Act.
Presumably the "Great Repeal Bill" will require amendment closer to the actual Brexit date in order to reflect further legislation adopted by the EU following the date of service of the Article 50 notice. It remains to be seen to what extent the UK government might try to "pick and choose" which EU measures it wishes to give continued effect to and which it does not, and whether any such decision might be affected by negotiations with the EU of the proposed free trade agreement.
The UK government wants a free hand to negotiate its own trade agreements with other countries with effect from Brexit. Therefore the Prime Minister stated that she does not want the UK to be part of the Customs Union, because it would mean being bound by the Common External Tariff. Instead she wishes the UK to have a close arrangement on customs with the EU, but was unclear as to whether this would mean a new customs agreement, becoming an associate member of the Customs Union, or remaining a signatory to just some elements of it. If the EU were prepared to countenance some form of partial membership, such negotiations could be a delay factor in concluding a new free trade agreement.
The Prime Minister confirmed that whatever agreement is reached with the EU will be subject to approval in both Houses of Parliament before it comes into force. This is consistent with the November 2016 judgment of the High Court in the Miller Article 50 case, which has since been upheld by the Supreme Court (in January 2017). The High Court and now the Supreme Court have held that the authorisation of Parliament will be required in order to invoke and give notice under Article 50 of the EU Treaty, the Supreme Court making clear that legislation will be needed.
Overall, the Prime Minister set out 12 key objectives for the UK's position and EU relationship following Brexit. She summarised these as follows: "So, these are the objectives we have set. Certainty wherever possible. Control of our own laws. Strengthening the United Kingdom. Maintaining the Common Travel Area with Ireland. Control of immigration. Rights for EU nationals in Britain, and British nationals in the EU. Enhancing rights for workers. Free trade with the European market. New trade agreements with other countries. A leading role in science and innovation. Co-operation on crime, terrorism and foreign affairs. And a phased approach, delivering a smooth and orderly Brexit."
The Prime Minister did not under-state the degree of change involved in achieving the planned new strategic partnership between the UK and the EU. She concluded by saying, with reference to the EU referendum, "So that when future generations look back at this time, they will judge us not only by the decision that we made, but by what we made of that decision".
This article is part of our Brexit series