Richard Gordon QC and Alastair Sutton present their new Constitution Society report – Negotiating Brexit: The Legal Landscape. Brexit is a development of substantial political, economic and constitutional importance to Europe as a whole. Its effect will greatly influence both internal and external relationships of the United Kingdom for many years. Negotiating Brexit: The Legal Landscape covers the Brexit negotiations to date, including detailed sections on the EU’s Mandate and Position Papers, the EU Withdrawal Bill and the impact of the Brussels negotiations on the devolved governments.
This report, launched on 7th November in the House of Lords in an event hosted by Lord Tyler, focuses on the Brexit negotiations from both a domestic and an EU perspective. In contrast to most of the coverage of Brexit in the UK (whether by academics or the media) much of the analysis here is from a European perspective, including an outline of the framework provided by EU law and procedure for the implementation of Article 50 of the Treaty on European Union.
This paper explores the differing approaches in negotiating Brexit. The EU is well prepared for the negotiations and has issued several foundational documents including Guidelines, Negotiating Directives (‘mandate’) and several Position Papers which inform its approach.The EU regards the continuation of the acquis (the body of EU law since 1958 up to the present day) as important in areas of continuing relevance (such as citizens’ rights). With that stipulation comes the necessary continuing jurisdiction of the Court of Justice of the European Union (‘CJEU’).
The UK approach to negotiating Brexit is more pragmatic, less well prepared and more preoccupied with political considerations than the EU. It does not appear to discern the difference between the parties’ differing perspectives.