Hard Brexit, Soft Brexit, Train-Crash Brexit: these are all labels that have been bandied around; but what do they mean, and more importantly what are their consequences?
A Hard Brexit is commonly understood to mean leaving the single market, the customs union and the oversight of the Court of Justice of the European Union so that the United Kingdom can take back control of its sovereignty, trade and laws. It places the value of self-determination above the possible benefits of having a say, but not a determinative voice, in the creation of regulations that govern the largest trading block in the world; it also denies the idea that the whole of a unified European Union is greater than the sum of its individual parts – at least in so far at the United Kingdom is concerned. A Train-Crash Brexit is considered to be just more of the same, notably leaving without any form of on-going relationship or the wish to have such a relationship that might ameliorate any transition from the state before to the situation after the 29th March 2019.
In contrast, a Soft Brexit refers to a situation in which the United Kingdom has reached some sort of agreement on a range of matters so that the situation after the 29th March 2019 closely mimics the situation that existed beforehand. How close is a matter of debate and negotiation. Typically, though, the implication is that, for example, there would be no disruption to the free flow of goods and services. This would require the United Kingdom to comply with the current, and any future, trading regulations promulgated by the European Union. Likewise, the United Kingdom’s relationship with the remaining members of the European Union would be overseen by, and be subject to the jurisdiction of, the Court of Justice of the European Union. However, critically, the United Kingdom would no longer have any say in the development of those regulations and, prima facie, have no rights of representation or audience before the Court of Justice. The first consequence arises because the United Kingdom would no longer be part of the decision-making bodies that propose and pass those regulations; while the second consequence arises simply because only lawyers from Member States of the European Union have those rights of representation and audience – as such, if the United Kingdom were a party to any proceedings before the Court of Justice it would have to be represented by lawyers from one of the remaining Member States of the European Union. Further, to be allowed to trade freely, it is commonly assumed that the United Kingdom would have to pay handsomely to enjoy that benefit.
This is the archetypical “Pay, but no Say” scenario.
As a matter of logic and economic reality, the Soft Brexit scenario makes no sense. It is clearly a far worse deal than the current situation, and it delivers none of the supposed advantages of a clean break as envisaged by a Hard Brexit.
Therefore, a Soft Brexit is a false hope.
It would be better either to leave cleanly … or to re-consider the whole matter and to stay a full member of the European Union in which the United Kingdom has an important say in what it gets for its money.
The European Union is going through a traumatic time at the moment, for example with Catalonia threatening to declare independence from Spain. Maybe the threat of Brexit can be used to galvanise the European Union into addressing some of the issues that it faces – such as the free movement of its citizens, which legitimately concerns many parts of the Union – while retaining the benefits that flow from taking a wider view of matters.
Michael Edenborough QC
15th October 2017