EU and CARICOM

Dilemmas versus Opportunities on Development, Law and Economics

Alicia Elias Roberts, Stephen Hardy, Winfried Huck

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000198836
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Investigating the unique EU-CARICOM legal relationship, this book explores

the major theme of globalisation, which shapes inter-regional organisations

individually and determines their relationship to one another. It evaluates how

EU-CARICOM relations have fostered trade, security and other development

measures, reflecting on the past, future and present of the Caribbean states that

are active in the EU-CARICOM framework.

Providing case studies on key issues such as immigration, tax and energy, it

examines the impact that the EU-CARICOM has on the slave trade and the

deportation of millions of people. Such bitter experiences still indirectly shape

culture, hopes and the economic framework of possibilities today; therefore, the

focus of the volume is on the issues which the constant stream of globalisation

creates. The book assesses many potential impacts that the agenda of the EU

and Brexit pending will have upon the EU-CARICOM relationship, given the

potential for these to create instability.

Overall, it highlights how the EU and CARICOM are representations for

multilateralism and serve as models that provide the basis for many successful

initiatives and agreements. In all new agreements and negotiations, the will to

accept the Sustainable Development Goals and thus to make inequality, climate

change and other goals of the SDGs the basis of an order that puts people

at the centre, are evaluated, and the global agenda 2030 and its impact on

EU-CARICOM.

Overall, it highlights how the EU and CARICOM are representations for

multilateralism and serve as models that provide the basis for many successful

initiatives and agreements. In all new agreements and negotiations, the will to

accept the Sustainable Development Goals and thus to make inequality, climate

change and other goals of the SDGs the basis of an order that puts people

at the centre, are evaluated, and the global agenda 2030 and its impact on

EU-CARICOM.

Part I
Brexit and EU-CARICOM relations

2
The impact of Brexit

In search of a new legal order?

Stephen Hardy

On 23 June 2016, the UK voted to leave the EU, or Brexit as it has become known. That new dawn brought the start of the search for a new order. But post-Brexit: what will it be?

In 1951 the founding six European countries signed the Treaty of Paris establishing the European Coal and Steel Community, followed shortly by the 1957 Treaty of Rome establishing the then European Economic Community (EEC), later the European Community (1986) and now better known as the European Union (EU). However, the UK belatedly joined on 1 January 1973, having had its original membership vetoed in 1963, following a Referendum in 1967.

The UK’s withdrawal from the EU, more commonly termed Brexit, is governed by Article 50 of the Treaty on European Union. Under Article 50, the invocation procedure required the UK to notify the European Council of its withdrawal, and thereafter the EU is required to negotiate and conclude an agreement with the UK, as a leaving State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the EU. The negotiation period is limited to two years unless extended, after which the Treaties cease to apply. Accordingly, British Prime Minister Theresa May notified the EU on 29 March 2017, invoking Article 50, and therefore, the UK had until 29 March 2019 to negotiate its withdrawal. On 25 November 2018, the EU ratified the UK’s withdrawal agreement.¹

1 <https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf>.

However, the invoking of the so-called ‘Article 50 procedure’ did not arise without controversy. A challenge in the courts caused the UK’s highest court in the Miller² case to declare that the UK government needed parliamentary approval to trigger Article 50. Subsequently, the UK’s Parliament overwhelmingly voted, on 1 February 2017, for a government bill authorising the British prime minister to invoke Article 50. Thereafter, the European Union (Notification of Withdrawal) Bill 2017³ proceeded through the UK’s parliamentary process. In any event, pursuant to Article 50(3), the EU Treaties will cease to apply ‘from the date of entry into force of the withdrawal agreement or, failing that, two years after’. Therefore, from 31 January 2020, the UK returns to its own sovereignty and its own legal order.

2 R (On the application of Miller) v. Secretary of State for Exiting the EU [2017] UKSC 5.

3 An Act since 26 June 2018.

Brexit: the changing legal order

The EU’s ‘new legal order’ was born in 1962 following the Van Gend en Loos⁴ landmark ruling of the Court of Justice of the EU (CJEU). This case not only illustrated the power of the jurisprudence of the CJEU, as it created the concept of direct effect, but it settled that the EU Treaty is directly effective in their application against the State. Therefore, this landmark ruling enabled a procedure of enforcement of European law at the national level. Accordingly, it reinforced the supremacy of EU law. Therefore, the most important piece of UK legislation that will be repealed upon the withdrawal of the UK from the EU (i.e. Brexit) will be the European Communities Act 1972, which provides for the supremacy of EU law. Repealing this UK statute will ultimately bring an end to the constitutional relationship that exists between EU and UK law. Moreover, the vast amounts of secondary legislation that have been passed with the objective and justification of implementing EU law will have to be reconsidered by the government.

4 C26/62, Van Gend.

Whilst the UK government intends to repeal the European Communities Act 1972 with the European Union (Withdrawal) Act 2018. Such seeks to convert all existing EU-derived law into domestic law, allowing the UK government to decide over time what laws it wishes to retain. This approach is intended to avoid the significant gaps and consequent uncertainty if all EU-derived law was repealed without replacement.

Within a commercial context, even if the UK decided not to retain any EU law, companies looking to trade in the EU would nevertheless still be required to comply with EU laws such as EU competition rules, regulations and standards. However, the UK will need to address EU provisions which regulate the relationship between EU Member States themselves or are based on reciprocity. More specifically, Brexit focuses all legal minds on the following:

1. legislation which relies on an EU regulator or grants jurisdiction to the CJEU;
2. numerous treaties which have been signed by the EU and are currently directly applicable in the UK by virtue of s. 2(1) of the European Communities Act 1972; and,
3. the fact that references in EU laws to actions being taken within the EU will not cover actions taken within the UK after 31 January 2020.

Consequently, due to these concerns, the EU (Withdrawal) Act 2018⁵ contains wide-ranging powers to amend EU-derived law by secondary legislation. In the UK government’s view, these powers will give sufficient scope to correct or remove laws that would otherwise not function properly post-Brexit. Whatever the UK Parliament legislates, since EU directives require implementation into UK law in order to have effect, this conversely creates the task for any UK government overseeing Brexit of deciding whether to embark on a process of reviewing Acts of Parliament and statutory instruments with a view to ascertaining whether or not to maintain, replace or repeal each piece of legislation. However, does this mean that the UK is in search of a new legal order?

5 <https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal.html>.

EU regulations rely on the principle of direct applicability, which means that unlike EU directives, they are directly implemented into UK law without the need for legislation from the UK Parliament. In this light, regulations are more powerful legislative tools for the EU because of their immediate applicability. Therefore, in many instances, amending regulations will likely be needed in order to take into account the UK’s new relationship with the EU. More significantly, the CJEU is currently the final arbiter on questions of the interpretation of EU law. That jurisdiction will cease on Brexit. Consequently, the EU (Withdrawal) Act 2018 sets out the future relationship between courts in the United Kingdom and EU law, including EU court decisions. UK courts, other than the UK’s Supreme Court, will continue to be bound by EU laws and court decisions made before Brexit. This is an attempt to preserve continuity given that previous CJEU decisions have influenced many areas of English case law, and similarly, the English courts have looked at the wording of EU directives for the purposes of construing UK legislation which was passed to give them effect. It is highly likely that the UK courts will move away from such jurisprudence once the UK is no longer bound by EU law and/or such decisions may be superseded post-Brexit.

Typically, in readiness for a change in legal order post-Brexit, the UK’s Department for Exiting the European Union has produced reports on the economic impact on 58 UK industries on leaving the EU.⁶ Notably, post-Brexit the decline in EEA immigration is likely to have an adverse impact on the British health sector. Further, there is overwhelming agreement among economists that leaving the EU will adversely affect the British economy in the medium and long-term. However, there is substantial uncertainty over how large the effect will be, with plausible estimates of the cost ranging between 1% and 10% of the UK’s income per capita. These estimates differ depending on whether the UK stays in the European Single Market (for instance, by joining the EEA – so-called soft Brexit), making a free trade agreement with the EU, or reverts to the trade rules that govern relations between all World Trade Organization members (so-called hard Brexit). Notably, in January 2018, the UK government’s own Brexit analysis showed that UK economic growth would be stunted by 2% to 8% for at least 15 years following secession from the EU, depending on the leave scenario.

6 <www.ft.com/content/f0c20820-7835-34d4-b736-a95d7ca972a2>.

Further, on 14 November 2018, the UK government published its draft withdrawal agreement from the EU.⁷ This caused two UK government ministers to resign.⁸ This document, consisting of 585 pages, covered the key areas involved in the UK’s withdrawal, including arbitration clauses, trade and the single marker ‘borders’ issue. An EU summit to discuss this draft text was convened on 25 November 2018. Subsequently, the EU accepted the UK’s withdrawal agreement. Yet, at the time of writing, this agreement is still to be assented to by the UK’s Parliament. Such parliamentary deadlock and rancour caused British Prime Minister Theresa May to resign in May 2019. Her successor as British Prime Minister, Boris Johnson, reaffirmed the UK’s commitment to Brexit after 31 January 2020.

7 <https://ec.europa.eu/commission/files/draft-agreement-withdrawal-united-kingdom-great-britain-and-northern-ireland-european-union-and-european-atomic-energy-community-agreed-negotiators-level-14-november-2018_en>.

8 Dominic Raab MP – the then Brexit Minister; and, Ester McVeigh MP – the Work and Pensions Minister.

UK post-Brexit: ‘in search of a new legal order’

A human rights deficit will be created by the UK government’s EU withdrawal. Namely, the UK’s Equality Human Rights Commission (EHRC) warns that ‘BREXIT will not protect people’s rights in the UK because it removes the EU charter of fundamental rights from UK law’.⁹ Whilst the UK government maintains that the charter will cease to be part of UK law when the UK leaves the EU, it also insists that UK rights will not be weakened following Brexit. Yet, the EHRC persistently asserts that rights will be lost where such rights do not have direct equivalents in other UK human rights law; for example, a freestanding right to non-discrimination, protection of a child’s best interests and the right to human dignity. Such legal implications of Brexit could potentially endanger the independence of the British judiciary, namely the UK government’s plans to grant British judges a wide discretion in deciding what weight to attach to decisions of the CJEU after the UK had left the EU jurisdiction.

9 <www.equalityhumanrights.com/en/our-work/news...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• List of contributors
• Foreword from the Editor-in-Chief for the gLAWcal Book Series “Transnational Law and Governance”, Routledge Publishing – Professor Paolo Davide Farah
• Foreword from the President of the Caribbean Court of Justice – The Honourable Justice Mr Adrian Saunders
• List of abbreviations
• Introduction
• Part I Brexit and EU-CARICOM relations
• Part II Trade and security in EU-CARICOM
• Part III Taxation and immigration in EU-CARICOM
• Part IV Sustainable development and regional governance issues in the EU-CARICOM
• Conclusions
• Index