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705: Brextrication and planning

News and ViewsBlogsPlanning Act 2008705: Brextrication and planning
705: Brextrication and planning
2 Comments Angus Walker

By Angus Walker

Today’s entry reports on the implications of the referendum result.

On Friday morning it was announced that on a 72% turnout, the UK electorate voted to leave the European Union by 51.9% to 48.1%. The individual UK local authority results ranged from Boston in Lincolnshire with a 76.5% vote to leave to Lambeth in London with a 78.6% vote to remain.

After saying we are not a nation of quitters, David Cameron is standing down, a third of the shadow cabinet has resigned, and a second, successful, referendum on Scottish independence is likely. A petition started before the referendum  by a leave supporter for a second referendum in the event of a close vote now has over 3.7m signatures. Are we all going to hell in a handbasket? Not necessarily.

In legal terms, the actual moment when leaving the EU formally starts is when the UK notifies the EU of an intention to leave under article 50 of the Treaty on European Union. From that point, in the absence of an agreement to do otherwise (by all 28 EU countries, note), a deal must be concluded within two years. David Cameron has said he will not take this step and is leaving his successor to do so, so there’s a three month breathing space.  Will the next PM actually take that plunge, which will occasion further falls in financial markets?

In fact, it is likely to be longer before the trigger is pulled because the EU and the UK will want to have their ducks in a row first, although there are reports that the EU won’t negotiate until the UK triggers article 50, leading to an impasse.  There is no provision for the rest of the EU to chuck the UK out, so they’ll just have to wait. A colleague of mine has coined (it has no hits on google at the time of writing) the word ‘brextrication’ for the process of untangling ourselves from the EU, which I will now steal.

The deal (the ‘withdrawal agreement’) that is eventually reached will decide how much of EU law we agree to follow in exchange for access to more or less of the single market of the remaining 27 EU countries. Thus it could end up as anything from exactly the same as now, to very little – although not nothing, because some obligations arise from separate conventions independent of membership of the EU. An example of that is the Aarhus Convention, which requires public participation in environmental decision-making, so environmental impact assessment lite will have to carry on in some form.

The only example of a territory leaving the EU so far is Greenland, which voted to leave the EU in a referendum on 23 February 1982 (53/47) and actually left on 1 February 1985.   The treaty for doing so thus took nearly three years to take effect – despite being only two pages long, just covering fishing.  The UK one is likely to be considerably longer in both senses.

We don’t yet know where on this spectrum of keeping or discarding EU legislation we will end up as we don’t know who will be running brextrication from the UK side. If the new Prime Minister voted remain on Thursday, I would have thought his or her diffidence towards leaving the EU will mean we stay near the status quo end of the spectrum, backed by a Parliament where 75% of MPs voted to remain.  If a different PM, perhaps following a general election, has a different view, who knows?  The eventual deal will have the status of a treaty and will have to be approved by parliament.

Let’s not forget either that the referendum result is a threat to the EU too. It may reform itself in a looser way, or even collapse, which would have a lesser or greater effect on the legislation it has created, from the other direction to the UK’s standpoint.

One immediate example that I have already been asked about is the revised environmental impact assessment directive passed in 2014 and required to be implemented in member states’ legislation by May 2017. Theoretically, the UK would still have to implement it as it won’t have done the brextrication deal by then, but practically, is the EU really going to take enforcement action against a state that is committed to leaving?  Then again, the deal may require adhering to the directive.

On a side note, can the Scottish Parliament veto Brexit?  I don’t think so.  There is a process of ‘legislative consent’, whereby the parliament gives its consent to the UK Parliament deciding an issue that is normally devolved to it, but leaving the EU is not devolved to Scotland.  Changes to the devolution settlement occasioned by leaving the EU may require legislative consent, but not the issue of leaving itself.

The short term effect of the referendum vote on planning is, then, not legal but primarily driven by economic uncertainty. The initiation and progress of projects will be dependent on economic confidence, which will certainly be dented by the result, but those on both sides of the vote will want to maintain it as much as possible. To an extent there is a positive feedback loop – having less confidence leads to even less – so maintaining it is all the more important.

However, to tie the economic back to the legal, there are certain things that the government could and should do to maintain confidence beyond just saying ‘keep calm and carry on’.  Here are some suggestions for the contents of a declaration, which I urge the government to make as soon as possible.

  1. Planning legislation, including that derived from EU law, will stay in place while brextrication is carried out
  2. The legislation will stay in place for at least two years (even if brexit occurs sooner) – or a stated longer period
  3. Any changes proposed to happen after that will be subject to public consultation
  4. Any changes will not affect projects already in progress (with a clear definition of ‘in progress’)
  5. Decisions will continue to be taken on time where there is a deadline and within target timescales where there isn’t
  6. The earliest date for changes will be updated quarterly, with the expectation that it will move further away (and will never be sooner than previously announced)
  7. The UK government will continue to abide by EU legislation applying to it until the deal is done
  8. The UK government will continue to implement EU legislation that it is required to until the deal is done
  9. The UK government will continue to abide by judgments of the Court of Justice of the European Union until the deal is done
  10. Existing and forthcoming government funding decisions will not be reversed, reduced or delayed because of the referendum decision

Let us work together to minimise uncertainty and maximise confidence in what are very uncertain times.  Do get in touch if you have any specific brexit or brextrication questions.

27 June 2016

2 Comments

  • Angus Walker says:

    Hi Dee

    You are right that the UK would lose a lot of its bargaining power if it triggered the article 50 process as it could just be ‘timed out’ by the rest of the EU after two years, but (perhaps aware of this) the EU don’t want to negotiate until the UK triggers the process, so an impasse at the moment.

    Angus

    • Company Name: BDB
  • Dee says:

    If article 50 is ‘filed’ and negotiations begin, wouldn’t the UK lose some of its power. In that scenario what would stop the EU just waiting until the 2 years is up, forcing the UK to agree to less favourable terms? Would the sensible option be to negotiate BEFORE submitting a50?

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