An à la carte Brexit simply isn't possible

With the CJEU in recess, it has been a quiet summer in terms of court judgments. Not so, of course, so far as Brexit negotiations are concerned. In general, I have tried to steer clear of the whole Brexit discussion, but as the dust begins to settle slightly it seems reasonable to consider some of the issues that are emerging.

The biggest difficulty with the tone of discussion is that it largely proceeds on the basis of a set of oversimplified assumptions. Take for instance the debate about ‘the single market’ and ‘the customs union’, as if these were separate and clearly defined things. They are not. Within the EU, the ‘customs union’ forms part of the single market. The customs union is about the removal of financial barriers to trade within the Union: duties and charges which operate like duties. But it is not an end in itself: it forms part (within the Union) of a set of interlinked provisions which include provisions to eliminate non-tariff barriers, so that within the TFEU the provisions on the customs union form one chapter in the provisions dealing with the free movement of goods, and those dealing with measures of equivalent effect form another.

And, of course, the provisions dealing with the elimination of measures of equivalent effect in turn raise acutely the question of the barriers posed by disparate regulatory requirements, which in turn takes us into the realm of standards harmonisation.

The same applies to any attempt to make hard distinctions between, say, free movement of services and free movement of persons. The cross-border provision of services can sometimes involve rights of physical free movement directly. Even where it does not, any rational system for the free provision of services rapidly raises questions that begin to come close to sensitive issues of sovereignty. For instance, can one sensibly divorce free movement from consumer protection? Once again, then, one rapidly runs into questions of harmonisation and regulatory cooperation. Indeed, can (or should) one really divorce such questions from questions of the free movement of workers: can transnational organisations which provide services in multiple places really function effectively if their personnel cannot move easily from state to state?

Looking at the matter merely technically – that is, quite apart from any question of what either side might be willing to agree – the idea that one could ‘remain in the customs union’ while ‘leaving the single market’ seems almost senseless. What is, on the other hand, conceivable is that one could remain in a customs union (of some sort), or continue to participate in an area in which at least some barriers to free trade in goods are outlawed. The EEA shows that this is possible. But although such an area might mimic some aspects of the acquis, the precise form it would take is difficult to predict.

One might think that some sort of ‘transitional’ arrangement is more viable. After all, we are in a sense in a transitional arrangement at the moment. But the difficulty with such a plan is that it becomes unstable as soon as one begins to consider how the present system should be adapted.

Take, for instance, the jurisdiction of the CJEU. Within the current system, the CJEU’s jurisdiction provides an important guarantee that the rules will be properly and impartially applied. One may think it is obvious (and surely it is) that the UK will not submit to the jurisdiction of the CJEU itself after it leaves the Union, for the CJEU will by then be a body on which the UK has no voice. But it equally seems hard to imagine that the Union could accept a situation in which there was no such body, and because of the way that the CJEU understandably safeguards its own constitutional position within the Union, ad hoc arrangements such as arbitration are very unlikely to pass muster. Again, that is not a political observation, but a fact of legal life as far as the EU is concerned.

Given time, and sufficient common purpose, those problems are soluble. But the stocks of both commodities are low. It is critically important to understand that, whatever the solution might be, it cannot be found by supposing that the parties can dine à la carte: “I’ll take the customs union, but without the single market. And can I substitute arbitration for the CJEU?”

As in any mature legal system, the elements of the EU’s constitution are linked together in complex ways. Although any post-Brexit settlement, including any transitional arrangement, may take its inspiration from aspects of what is already there, it is bound to be something new and fundamentally different. Quite apart from the huge political difficulties of arriving at any consensus, that point seems fundamentally true simply as a technical legal point. As things stand, the public discourse on this topic seems to risk missing this basic fact.

Paul Stanley QC is a barrister at Essex Court Chambers