The Elements of a Post-Brexit Settlement

By Sir Alan Dashwood QC

This is a summary of Sir Alan Dashwood’s paper, ‘The Elements of a Post-Brexit Settlement’, which can be downloaded in full here

It is time to start thinking about the possible elements of a post-withdrawal settlement. A solution that caters for the UK’s economic needs ought to be attainable, if it also plays to our country’s particular strengths, which make it a far more important partner for the EU than any other European State.

Continuing membership of the internal market for goods and services must be the primary goal. A “hard Brexit”, which entailed coming out of the internal market and trading with the EU on the basis of WTO rules, or negotiating a free trade agreement (FTA) with the Union, would almost certainly damage the UK’s services industries, especially financial services, since these are especially vulnerable to protectionist measures posing as prudential regulation.

Even a far-reaching FTA like the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada would not provide a level of market access for services, especially financial services, and a level of legal protection against discrimination, comparable to that enjoyed by the UK as an EU member. Nor would UK businesses qualify for “passporting” (enabling them to operate without undergoing fresh certification) under such arrangements.

In broad terms, the solution should consist of full participation in the internal market, subject to some curbs on free movement, and with “add-ons” in the form of a degree of continuing participation by the UK in certain other EU policy areas.

The following categories of persons should continue to enjoy unrestricted rights of free movement and of equal treatment: persons who have already exercised rights of free movement under the Treaties before a specified date (the date on which the Article 50 notice is given, for instance); workers accepting offers of employment actually made; persons exercising the right of establishment or freedom to provide services; the self-sufficient; students; and visitors to the United Kingdom.

New controls would be imposed on people coming to the UK after the prescribed date to look for jobs.  Controls might consist of a combination of practical measures to ensure that those claiming the status of job-seeker are genuinely looking for employment and have a reasonable prospect of finding it, and that they can easily be removed if they are unsuccessful. This would sit together with some kind of emergency brake mechanism that would be triggered when the volume of those arriving is perceived to be creating serious socio-economic problems (with agreement under the withdrawal settlement that the conditions for operating the brake currently exist) A precedent for such a mechanism can be found in the EEA Agreement.

The debate over our relationship with the EU should extend beyond the Single Market as there are other areas of EU action which it is in the UK’s interest to remain involved in, and also very much in the interest of the 27 that we should. Principally these are: research; the Erasmus exchange scheme for students; security and justice; and the common foreign and security policy (CFSP). This may also furnish a quid pro quo for the acceptance by the remaining Member States of a brake on migration.

The UK should approach the forthcoming negotiations with the EU with confidence. Our aim should be to preserve the closest possible relationship that is compatible with the decision that the UK should cease to be an EU Member State. The technical issues involved may be challenging, but they are not so hard as to defeat the ingenuity of lawyers, so long as there is a political will to compromise on both sides of the negotiation.