Brexit: Through the Looking Glass
Professor Federico Fabbrini
Followers of the Brexit story have learned to expect the unexpected. From the result of the June 2016 referendum – which defied pollsters’ expectations – to the April 2017 decision of Prime Minister May to call a snap election – which turned into a boomerang; from the December 2017 late night diplomatic accord on a joint report, to the November 2018 deal on a 585-page withdrawal agreement with a connected political declaration on the framework of future EU-UK relations, to its subsequent rejection in Westminster in January 2019, Brexit analysts have been repeatedly surprised by unexpected shifts and turns in the saga.
Yet one would be mistaken to think that the Brexit process is purely chance and cabal. Rather, the push and pull emerges from the intricate relationship between law and politics in the process of withdrawal of the UK from the EU. Brexit is a deeply political process – but one heavily constrained by law. The legal dimension is clearly visible on the EU side: the mechanics of withdrawal (from notification to the 2-year ticking clock) are set in Article 50 TEU. The acquis communautaire conditions the ability of the negotiators to accord ad hoc diplomatic solutions (from the transition to the Northern Irish backstop). And it is well-known that whatever is agreed must pass muster before the European Court of Justice, which – as the institution tasked with the role to ensure that “the law is observed” – could well be called to rule on the legality of the deal.
The legal dimension is prominent in the UK too. This may be paradoxical in a country without a written constitution, yet the UK Supreme Court ruling in Miller vs Secretary of State for Exiting the EU of 25 January 2017, which judicially reaffirmed the role of the legislature in Brexit, reminds us that in the UK laws limit the ability of political institutions to manage the withdrawal process in a purely political fashion. The exercise of power by Westminster in rejecting the Brexit deal on 15 January 2019 spectacularly revealed the legacy of parliamentary sovereignty. And devolution, with its grant of autonomous power to the regional governments of Scotland, Wales and Northern Ireland, represents another constitutional constraint – albeit thus far much less impactful – on the UK road toward leaving the EU.
As such, it is crucial to observe the dynamics of Brexit both through a legal and a political lens – without of course obliterating the economic one, which inevitably underpins electoral dynamics, media reports, and political parties’ programs. Much uncertainty remains in the process of UK withdrawal from the EU – and many surprises are to be expected still. But what remains fairly certain is that law and politics will be the twin driving forces of the process, channeling the Brexit negotiations and shaping their outcomes.
Federico Fabbrini is Full Professor of EU Law at Dublin City University (DCU) and the Founding Director of the DCU Brexit Institute. He is the editor of The Law & Politics of Brexit (Oxford University Press 2017), and the author of two monographs with Oxford University Press.