Table Of Contenti
THE LAW & POLITICS OF BREXIT
ii
iii
The Law & Politics
of Brexit
Edited by
FEDERICO FABBRINI
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1
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Table of Contents
Foreword vii
Acknowledgments ix
Table of Cases xi
Table of Legislation xiii
List of Abbreviations xix
List of Contributors xxi
1. Introduction 1
Federico Fabbrini
PART 1: BREXIT: POLITICS, PROCESS, AND
PROSPECTS
2. The Political Mantra: Brexit, Control and the Transformation of
the European Order 25
Kalypso Nicolaïdis
3. The Process: Brexit and the Anatomy of Article 50 49
Paul Craig
4. The Prospects: The UK Trade Regime with the EU and the
World: Options and Constraints Post-Brexit 71
Giorgio Sacerdoti
PART 2: BREXIT AND CONSTITUTIONAL CHANGE
IN REGIONAL PERSPECTIVE
5. Brexit and the English Question 95
Stephen Tierney
6. Brexit and the Scottish Question 115
Sionaidh Douglas- Scott
7. Brexit and the Northern Ireland Question 139
John Doyle and Eileen Connolly
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vi Table of Contents
PART 3: BREXIT AND CONSTITUTIONAL CHANGE
IN EUROPEAN PERSPECTIVE
8. Brexit and the EU Economic & Monetary Union:
From EMU Outsider to Instigator 163
Michele Chang
9. Brexit and the EU Area of Freedom, Security, and Justice:
Bespoke Bits and Pieces 183
Deirdre Curtin
10. Brexit and the EU Internal Market 201
Catherine Barnard
PART 4: BEYOND BREXIT: RELAUNCHING
THE EU?
11. Brexit and Euroskepticism: Will “Leaving Europe”
be Emulated Elsewhere? 221
Marlene Wind
12. Brexit and EU Institutional Balance: How Member States and
Institutions Adapt Decision- making 247
Uwe Puetter
13. Brexit and EU Treaty Reform: A Window of Opportunity
for Constitutional Change? 267
Federico Fabbrini
Index 293
vii
Foreword
Danuta Hübner
It is undeniable that the referendum of 23 June 2016 opened a new stage
in European, as well as British politics, marred by uncertainty and, possibly,
varying degrees of expectations, both on the part of the EU and the UK. The
negotiations concerning the terms of leaving the Union by one of its impor-
tant members will be complex and challenging.
Although ostensibly focused on intricate points of law, they will not be
detached from the vagaries of politics. For it is quite obvious to everybody that
recourse to a referendum did not appear as a result of immaculate conception,
but was an outcome of political calculation on the part of the Conservative
Party and Prime Minister David Cameron. It turned out that what was to be
just a ploy in the internal British game became a historical fact that is about
to change the political landscape of the United Kingdom as well as that of the
European Union for generations to come.
As someone said: “Be careful what you wish for. Wishes are brutal, unfor-
giving things”.
And now, one year after that fateful decision, here we are, in the unforgiv-
ing world of Brexit and its unpredictable politics, beginning the most difficult
negotiations of contemporary history. Their outcome is highly uncertain for
the EU, the UK and, most importantly, our citizens. And yet the parties
should be wary of entering the negotiations with trepidation and ill-f eeling,
because this would diminish their ability to lead the process in an orderly
fashion. The process itself is complex enough and no additional burden need
be added to it.
Both the EU and the UK must do everything to reduce the uncertainty
that will accompany the difficult negotiations ahead.
On this point, it is of prime importance that everything should be done
to protect the interests of all who are or will be affected by the negotiations.
I mean here, first and foremost, the citizens of both the EU and the UK. The
Union is the Union of citizens. They should not live in fear of losing their
rights— also their right to transparent negotiations that would have conse-
quences for them and their families.
One year on, apart from putting our minds to the difficult task of negotiat-
ing ahead, coming out of the initial shock and starting to absorb its conse-
quences, is the right moment to begin to understand why Brexit did actually
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viii Foreword
happen, what led to it, as well as to look at what lies before us. Negotiations
are one thing, and complex enough. But also, in the EU, Brexit challenges us
with developing a quite new set of constitutional questions, and a necessity
of finding further possible paths for national and European development and
integration.
Brexit, thus, as a sui generis phenomenon, is not only a brutal political
reality, but also an inviting object of multi-f aceted scholarly investigation in
the areas of British and European politics, economics, law, as well as cultural
studies. In time, certainly many volumes will appear on the causes, motives,
and (mis)calculations that led to Brexit, as well as on the negotiating process
itself.
The book that you have in your hands is the first comprehensive study that
makes it easier for the reader to comprehend the complexity of the law and
politics of Brexit. It is an indispensable compendium of knowledge on all
key substantial issues that will impinge on the new post- Brexit settlement in
Britain and in the European Union.
Leading political scientists, lawyers, and economists, under the capable
editorship of Professor Federico Fabbrini, have taken up the task of explain-
ing why Brexit happened, what are the prospects for the negotiations, what
are the regional and European ramifications, and what all this means for the
future of Europe, beyond Brexit.
There is a wealth of expertise here, which will certainly turn out to be a
treasure trove for all scholars, students, and practitioners of European and
British politics, its past, present, and future.
ix
Acknowledgments
This volume is the result of a research project I have undertaken since my
appointment as a Full Professor of Law at the School of Law & Government
of Dublin City University (DCU)—i ronically, on the day of the Brexit
referendum. Special thanks are due to Alex Flach and his team at Oxford
University Press— Natasha Flemming, Natalie Patey, and Liz Davey—f or
making sure the publication of this volume could happen in record time.
The book chapters were first presented at a Conference hosted at DCU on
April 20– 21, 2017. The Conference was opened by Charles Flanagan (then
Minister for Foreign Affairs and Trade of Ireland) and concluded by Danuta
Hübner (President of the Constitutional Affairs Committee of the European
Parliament)— who honored us by kindly agreeing to write the Foreword to
the volume. The DCU Conference was made possible by the generous spon-
sorship of a number of partners: the Bertelsmann Stiftung in Gütersloh,
Germany; the Centro Studi sul Federalismo in Turin, Italy; the Reinholdt W
Jork og Fond in Copenhagen, Denmark; and Matheson Law Firm, in Dublin,
Ireland. A special thank you goes to Joe Beashel, Flavio Brugnoli, Katharina
Gnath, Tim Scanlon, and Stefani Weiss for their trust and engagement. My
friends Graham Butler, from the University of Aarhus and Matteo Scotto
from Villa Vigoni (the Italian- German Center of European Excellence) also
contributed materially and immaterially to the event at DCU, and I want to
thank them warmly here.
I am particularly grateful to DCU and my colleagues there for support-
ing the Conference project out of which the book stems. The President and
Deputy President, Brian MacCraith and Daire Keogh, kindly agreed to intro-
duce the Conference, and the Dean of the Faculty of Humanities John Doyle
and the Head of the School of Law & Government Gary Murphy continu-
ously supported the idea of inviting a large crowd of international speak-
ers to discuss Brexit at DCU. Moreover, a number of colleagues from the
School of Law & Government and DCU contributed to the Conference,
either by acting as panel chairs and papers discussants, or by assisting in the
organization and the marketing of the event. Their participation was valuable
and I want to name them here, in alphabetical order: Eimear Brady, Michael
Breen, Monica Cappelletti, Ronan Condon, Stephen Coutts, Brenda Daly,
Aisling De Paor, Karen Devine, John Doyle, Robert Elgie, James Gallen,
Katy Halpin, Tom Hickey, Ken McDonagh, Iain McMenamin, Tanya Ni
Mhuirthile, Gary Murphy, Roderic O’Gorman, Eoin O’Malley, John Quinn,
