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new school year: orientations and brexit August 16, 2016

Posted by Bradley in : eu , trackback

We had a day of living law talks yesterday as part of our orientation for the new 1Ls. I went to some of my colleagues’ fascinating presentations – there were others I would have liked to see but couldn’t. I talked about Brexit. Here is more or less what I said (there were some interesting questions which aren’t reflected here):

Will Brexit break the EU?
UK citizens voted for Brexit in June. What actually happens next, however, will be the product of the incomplete text of the EU treaty, and political, rather than legal, negotiations which may end up changing UK law. In the meantime, businesses will need to take account of the new uncertainties in planning their actions and in their contracts. This talk begins to explore just how lawyers will help businesses do that.

I want to talk about Brexit in three separate ways: in terms of perspective or viewpoint; by thinking about lawyers’ interests in the issue, and in terms of how transactional lawyers rather than litigators may think about Brexit.

The UK held a referendum in June 2016 in which a majority of the voters voted to leave the EU. There were regional variations in the result, for example in Scotland a majority of voters wishes to remain, and younger voters tended to want to remain whereas older voters said they wanted to leave the EU. The referendum result raises huge numbers of questions for academics and for practising lawyers. For me personally it raises the question whether it makes sense to carry on teaching EU law.

For a political scientist, here are some of the issues the Brexit vote raises: How did this happen? What are the implications for uses of referendum in future – in the UK, and in other countries? How do the facts that led to the UK vote affect voters in other EU member states? Here I mean austerity, worries about immigration, security, lack of hope about the future (some issues that are visible in the US in the context of the upcoming election). How does Brexit affect international relations and geopolitics?
What are the implications for transnational governance more generally? The development of the EU is part of a more general development of institutions of transnational governance since the second world war. Over time the EU has gone through a process of widening and deepening, expanding its membership and intensifying relationships between the Member States. A UK exit would be the first time a Member State has left the EU. It would be a step backwards.

I think lawyers also are and should be concerned with these issues. They are clearly issues that some academic lawyers care about, but they are also issues that should concern lawyers involved in the practise of law.

Lawyers are also going to be interested in some more technical legal questions. For example, the EU Treaty provision that deals with withdrawal of a Member State has been in effect only since 2009 and has never been used. It imagines that the Member State would give a notification of its intention to withdraw, and imagines negotiations of terms of withdrawal. The Member State would leave after 2 years unless a negotiation culminated in agreement before then or the 2 year period were extended by the other Member States unanimously and the leaving state. There are gaps in the provision: it does not say anything about whether or when a Member State might be required to notify, or whether a notification could be withdrawn. The terms of withdrawal can be agreed by a qualified majority of remaining states but the terms of any ongoing relationship would need unanimous agreement. There are many legal uncertainties.
For UK government lawyers there are some other issues. For example there are questions about who has the power to decide that the UK should make the notification. Is it a matter for the Government or for Parliament. There is ongoing litigation about this question. And there is litigation about whether the UK can in fact leave the EU, for example it is argued that the Northern Ireland peace accord, the Good Friday Agreement should prevent this step.

For me, as an academic interested in relationship between money law and geography, the most interesting question relates to the implications of Brexit for London as a financial centre. Is being part of the EU single market crucial for the UK or not?

Brexit leads to some very practical questions for lawyers advising clients. UK citizens working in other EU Member States and citizens of other EU member states living and working in the UK want to know what their rights are.

Business lawyers need to think about how to identify the risks a business is subject to, and how to deal with or minimize risks. As the law changes they need to think about how to adjust to new rules. And they need to imagine how the law may evolve and react, for example by responding to proposals for changes to the law, and by thinking about what you can do with contract terms when the unexpected happens.

From the perspective of contracting, Brexit is a lesson in the need to plan for the unexpected. Of course this only leads to the next question of how you do this. But lawyers do need to be thinking about the question we started with: will Brexit break the EU?


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