There is much confusion and arguments about what “deal” the UK government needs to make with the EU for Brexit to be successful.
But what is this “deal”, and why all the talk about it?
At the time of the pre‐referendum arguments, those who wanted to stay in the EU were saying, “Outside of the EU Britain will be isolated”. And those who wanted to leave the EU responded, “We shall make such a deal with the EU, that we'll have access to the single market, and full control of our borders, and we shall have many deals all over the world”.
It is this “battle of ideas”, combined with the way Article 50 of the Treaty of Lisbon was drafted, that gave rise to the idea that to leave the EU, the UK government needs to agree with the EU a comprehensive deal which will define the relationships between the UK and the EU once the UK ceases to be an EU member.
We have dealt with the defects of Article 50 in Brexit Mess — How to Sort It Out and showed that the negotiations should be limited only to the continuation of the current commitments by the parties.
We have also shown that, if the negotiations are limited only to the continuation of the current commitments by the parties, Brexit can be completed in 1 to 3 months in The Earliest Date of the UK Leaving the EU rather than 2 or more years.
Here we'll discuss whether a comprehensive deal with the EU to “replace” the current relationships is necessary at all and what will be the position of the UK government once the UK becomes independent.
The moment the UK officially ceases to be a member of the European Union nothing will happen — except that the legal status of the relationships with the EU will change.
The consequences of the cessation of membership is that the British government will no longer be bound by the laws and regulations of the European Union, and will not be able to have direct influence on the internal affairs of the European Union.
But any relationships between the UK and the EU after that will be subject to the general international law, and any specific agreements that the UK government will find necessary or beneficial to conclude with the EU.
These specific agreements will arise not out of a need to “replace” the EU treaties (“to make the best of Brexit”), but out of the geographical proximity between the two entities, which leads to conflicting situations (fishing rights, etc), or specific cooperation opportunities (specific trade arrangements, common projects, etc).
That is, normal relations between independent states, which happen to be neighbours. Nothing to do with the EU membership, or “Brexit”.
There is no need for a special agreement at government level for British businesses, or individuals, to trade with businesses and individuals within the EU countries. And some British companies are “multinational”, they operate in EU countries and in non‐EU countries without government level agreements.
If to look at what goods are sold today in British shops, one will see goods from China, Korea, Japan, India, Brazil, USA, South Africa — none of which countries are members of the EU.
Yes, there are some EU goods as well, but European goods were sold in Britain even before the creation of the EU.
As far as movement of people, there will be a change, but it does not need a government level agreement. Citizens of EU countries will not be “barred from entering the UK, or deported”, but their entry to the UK, and rights of stay, will be subject to the same rules as that of non‐EU citizens.
The same will happen to UK citizens wishing to travel, work, do business, or study in EU countries.
It is possible to have special visa rules for citizens of some of the EU countries. But this is not necessary for Brexit, and would be done only, if beneficial. And it does not need to be bi‐lateral.
In short, there is no need for a comprehensive single “deal” which will somehow “replace” the present EU membership.
But there will be good cooperative relationships with EU countries. Just as it should be with all the countries of the world.
These relationships might, or might not, give rise to different specific agreements. Such agreements will be made (and unmade) at different times, as and when the need arises. And they will arise not from a desire to “make Brexit a success”, so as to prove the “stayers” wrong, but because of the requirements of the time.
But, if not a comprehensive “super‐deal” about the post‐Brexit relationships, then what deal needs to be struck between the UK and the EU to make Article 50 work?
To answer that question one needs to understand the process of termination of an agreement — in general.
The relationships between the EU and the composing it member states are governed by “treaties”, i.e. agreements between the European Union and each of the member states.
Article 50 of the Treaty of Lisbon, is the termination clause, in accordance with which a member state of the EU can leave the EU.
Leaving the EU means ending all the relationships comprised in the EU membership.
By it's very nature a termination clause cannot be dependent on some future relationships between the parties, because that would mean not “termination” of membership, but “continuation” of membership on different terms.
This is also confirmed by the EU Trade Commissioner, who said, “First you exit, and then you negotiate the new relationship, whatever that is”. That is, the negotiations of Article 50 are about how to complete the exit procedure, not about any future relationships.
Agreements create relationships between parties, and some of these relationships cannot be terminated instantly, but need time to terminate them in an orderly way.
Termination clauses of agreements normally make provisions for such orderly termination. (This is what these clauses are for).
Typically, a period of time is specified, allowing the parties to bring all the outstanding transactions between them to a close. And this is all that needs to be agreed between the UK and the EU, to complete the withdrawal process, in accordance with Article 50.
This agreement about the time during which the current pre‐Brexit transactions will continue after the termination date should not be seen as a “deal”, in the sense of “getting the best bargain”, but as a mutual agreement to enable the parties to end the relationships between them in an orderly way.
Was it right to decide the issue of UK membership of the EU by a referendum?
Yes, it was. Being a member of an organization in itself is neither good, nor bad, neither right nor wrong. It is a matter of choice. And in case of a choice by a group of people some of whom are for leaving and some for staying, resolving the issue by a referendum is the right way of making a decision.
Decisions by vote are not a way of finding the best choice, they only show that the majority are in favour of a particular choice.
Leaving the EU will have different effect on different people.
For the majority it will make little, or no difference. For those, whose businesses or careers are closely connected with the EU, this could mean a major change in their lives — a change of business, or career. For others leaving will open up new opportunities. But similar situation happens when there is a change of government as a result of a general elections: some lose, some gain, and many are not affected.
If people want to be governed by votes, they need to learn to accept results of referendums or elections for better or for worse.
And, yes, it would be possible to have a referendum on re‐joining the EU, but it should not be done before Britain had left the EU, and at least 5 years have passed since the leave.
It is certainly wrong to keep one referendum after another until everybody is pleased with the decision. There will always be people who disagree.
While it was appropriate to discuss and even argue about merits and demerits of leaving the EU, before the referendum, once the decision is made, the leave procedure must be completed. And this procedure has no connection with what laws the UK government will pass after the leave.
Attempts to make the leave procedure dependent on some agreement or undertaking by the UK government about future laws will only cause unnecessary delays, discredit the government, and lead to bitterness and controversies which will last for years.
Nor such agreements or promises are even capable of being kept. Any future laws cannot be enacted until the leave procedure is complete. And, because they will be subject to parliamentary debates, there is even no certainty, that they will be enacted.
And it is impossible to know with certainty whether the proposed laws are even necessary or beneficial until the leave has taken place, because the conditions in the country which will be prevalent at that time is impossible to predict.
So, the arguments about the post‐Brexit future should be left to the time when this future becomes the present, and when the post‐Brexit UK government will start proposing the post‐Brexit laws.
The present preoccupation with a “Brexit Super Deal” is just another political game of “Making Brexit Work”. This game has nothing to do with the real needs, but is the result of political stances, which, once adopted, politicians find difficult to abandon.
The “Making Brexit Work” game should be stopped as soon as possible. The leave procedure should be completed without any “deals” about the future.
Once Britain is out of the EU, the UK government will proceed to govern Britain by British laws, which will be enacted not to “Make Brexit Work”, but because they are necessary or beneficial within the circumstances which will prevail at the time.
These post‐Brexit laws will have nothing to do with Brexit, because once the Brexit leave procedure is complete, Brexit will be over. It will become a past historical event, and will have no relevance for the life after Brexit.