Report of the Symposium on 'Brexit and the EU: Legal and Institutional Perspectives'
The Institute of European and Comparative Law (IECL) and the EU Law Discussion Group (EULDG) organised a symposium on ‘Brexit and the EU: Legal and Institutional Perspectives’ on Friday 23 February 2018. The event was generously sponsored by Monckton Chambers. An initiative by Professor Stephen Weatherill, this event was organized by the convenors of the EU Law Discussion Group, Alix de Zitter and Konstantinos Sidiropoulos, with the support of the IECL, and was made possible by the generosity of Philip Moser QC and Piers Gardner from Monckton Chambers.
On 23 June 2016, the voters of the UK chose to leave the EU in a historic but also divisive referendum. On 29 March 2017, Article 50 TEU was triggered through a declaration signed by Prime Minister Theresa May and submitted to the President of the European Council, Donald Tusk. This initiated the two-year negotiation period leading to Britain's expected withdrawal from the EU in March 2019. Almost one year after the invocation of Article 50 TEU, the future shape of the agreement between the UK and the EU couldn’t be more uncertain. Is there going to be a hard Brexit? Soft Brexit? Some even go as far as to question the possibility of Brexit altogether.
In this confusion, and having new issues to discuss compared to one year ago, the aim of the symposium was to discuss the substantive legal issues arising from Brexit—namely on free movement and common policies—as well as the institutional issues pertaining thereto, including political and administrative challenges. The objective of the symposium was to provide both an EU and a UK perspective regarding the potential implications of Brexit.
To achieve this, we were fortunate to have brought together some of the most prominent academics and practitioners, as well as two DPhil in Law students from the University of Oxford, who exchanged their legal views and perspectives on Brexit. The discussion took place in two panels.
The first panel, where the substantive legal issues were analysed, was chaired by Professor Sir David Edward QC. Professor John Temple Lang initiated the discussion by explaining the potential impact of Brexit on the free movement of services within the Internal Market. Philip Moser QC from Monckton Chambers employed the example of the free movement of lawyers as a case-study, thus illustrating John’s analysis. Following this, Professor Tamara Hervey from the University of Sheffield explained the legal and policy aspects of Brexit for health care, and Bojana Vitanova analysed Brexit and the digital single market. Finally, Professor Stephen Weatherill drew the interesting distinction between ‘free trade, permission to trade, and freed trade’. The common theme arising from all the presentations in the first panel, and the subsequent discussion, is that Brexit is detrimental; it is detrimental to the free movement of services in the UK, for the freedom of establishment of lawyers, for health in the UK, and for the consumer. But the risks of Brexit vary significantly depending on the type of Brexit envisaged.
In the second panel, chaired by Professor Sir Francis Jacobs QC, the panelists analysed the institutional, political, and administrative challenges of Brexit. Professor Kalypso Nicolaidis explained how Brexit can be seen to reflect the partial loss of the principle of mutual recognition. Dr Tobias Lock from the University of Edinburgh presented the challenge of ‘getting transition right’, that is, the next steps in the negotiations; in particular, he explained how a transitional arrangement could be found and how it could be agreed in a constitutional manner. Then, Professor Antonios Kouroutakis from IE Law School assessed the Henry VIII clauses in the EU Withdrawal Bill, as well as the political and legal safeguards therein. Focusing on the UK-law side, Mikołaj Barczentewicz gave a presentation on the entrenchment of retained EU law and of the Withdrawal Agreement in UK law. Finally, the second panel concluded with Professor Paul Craig’s assessment of the legal challenges of the Withdrawal Bill, and his proposed solution.
The symposium concluded with the extremely interesting speech by Mr Alexandre Holroyd MP (France), who shared a different, more politically-oriented approach to the predicaments of Brexit.
The symposium was a golden opportunity for leading experts to present their views and discuss them with their peers and students. We were delighted to welcome such a great group of speakers, the discussion was interesting and intense, and those attending enjoyed it. If the tone of much of the analysis was rather gloomy, this is because anyone who examines Brexit at the level of informed detail and analytical precision, rather than through vague homily and breezy deception, is unavoidably gloomy.