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What is a "hard brexit"?

Editorial Staff

We have considered what a "soft brexit" means (here) and in this article, we look at a "hard brexit" also known as a "no deal brexit."

The idea that the UK could literally just walk out of the EU and never look back was always a ridiculous notion. The UK's adoption of EU law since 1974, when in a referendum Britons voted to remain in the EU, is a significant part of the fabric of society and its legal framework. There is no precedent for a country leaving the EU and whatever happened after the UK served on the EU its notice under Article 50 of the Lisbon Treaty (2007, known in the EU as LEU), which says that it is to withdraw from the Union, everyone was in uncharted waters.

While the media has, largely, allowed itself to be directed by special interest groups and by those who are opposed to the UK leaving the EU, the headlines have been, broadly, of scare stories that have been based upon supposition and conjecture. We know this because, at the risk of repeating ourselves, there is no precedent and no one had every drawn up a plan for when a company either leaves voluntarily or is thrown out. There is literally no plan.

A hard "brexit" under which the UK was suddenly no longer associated with the EU is not only impossible, even if it were possible, it would not be practicable. If the UK were to pass legislation that says "at midnight on exit day, all EU derived law will be repealed in its entirety" the UK would become, in the strictest meaning of the term, almost a lawless society.

But a hard "brexit" would go even further: it would mean that the UK was no longer part of the Single Market and that, in many ways, would have a negative impact on many businesses, it would perpetuate existing negative impacts and, in other ways, it would have a positive impact. Not all members of the Single Market are members of the EU. There is a kind of "adjunct" class of membership, the European Economic Area, in which members take on some but not all of the EU laws, mainly those around trade and commerce but the EU has been demanding that, to gain the benefits of access to the EU's large internal market, the members of the EEA adopt more than purely trade-related laws.

The first thing about a hard "brexit" is that the UK would no longer contribute to the EU budget. This is sold as a good thing but in fact it's not all good. There are EU facilities that greatly benefit all countries in the EU, including the UK. For example, in the world of preventing terrorism, intelligence sharing is key and Europol is at the forefront of intelligence sharing in relation to terrorism and other international crime including trafficking in people and drugs. The European Arrest Warrant is an incredibly vital tool that has removed the ease with which successful criminals in one country can move to another and be, to a great extent, beyond the reach of the police where the offence was committed : the Costa del Crime is now consigned to history but a hard "brexit" would mean that UK criminals could, once more, disappear into the EU with relative impunity. It is in the UK's interests to continue to be a full member of, and therefore contribute to, such schemes, including engagement of British nationals in those organisations.

Under a hard "brexit" the UK and EU would fall back onto World Trade Organisation rules until a bilateral trade deal were done. "Hard borders" would be imposed. Mostly, this means longer queues at ports and longer delays at airfreight depots. But it's not as big a deal as it sounds because due to security concerns, the level of attention to all cross-border movements is already at an all-time high. Even so, this is the biggest stumbling block in some people's view: the island of Ireland has a border which is little more than a line on a map. The Republic of Ireland (RoI) and Northern Ireland have one of the world's most porous borders and no one wants to see that changed. The RoI and the UK are outside the Schengen Area but they have a private arrangement that has created something very similar on the island. Flights and ships between the RoI and the British mainland remain subject to border controls and although a passport is not required for citizens of the RoI and the UK to travel between the two countries, official identification is, including something proving citizenship (which is more than residence).

Under a hard "brexit" passport control would become far more complicated. For example, EU electronic passports are accepted in the UK because there is a central database. Under a hard "brexit" Britons would not be on it and EU passport holders would not pass through the autogates without special measures being adopted (as they have been in Australia, for example, where certain foreign passports are accepted at autogates). It has already been established that UK citizens will be regarded as citizens of a visa-free "third country" for entry to the EU after exit day although the new border controls which create something similar to pre-clearance, will not, in fact, come into effect until later in 2019. There is no reason why, at least in relation to current "pink" passports could not be regarded as free from this requirement if the political will were there. It isn't.

In the case of a hard "brexit," the UK would have to negotiate with other countries for visa-free travel (an EU passport gives visa-free access to much of the world: a UK passport does not, currently, exist and under EU laws, while the UK is part of the EU, it cannot negotiate bi-lateral deals). Under a hard "brexit," in theory all existing EU passports held by UK citizens would be cancelled on exit day leaving millions stranded around the world until new documents can reach them and recent experience shows that the passport office's only experience of crises is to create them with some passports taking as long as three months to be produced. It is extremely unlikely that this will be the case.

It is clear, then, that a genuine "hard brexit" is not in the interests of the citizens of the UK and despite brinksmanship over the Irish border question and in the EU over who knows what, the fact is that a deal with be done because it it isn't the UK might as well turn the lights out. It is equally important that the deal is not the ultimate in soft deals because, at that end of the scale, things would be equally bad but in a very different way.

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