Descending the circles of "Brexit" : toxicity of future EU-UK relations and the road to EU re-accession?

Kenny, Mel (2022) Descending the circles of "Brexit" : toxicity of future EU-UK relations and the road to EU re-accession? Columbia Journal of European Law, 28 (1). pp. 36-100.

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Abstract

"Brexit" confronts the UK with multiple challenges: for its constitutional settlement, economic prospects and territorial integrity. Inter alia, Brexit represents challenges for the identity of the peoples of the UK; for the idea of the UK as a voluntary Union of the Four Nations; and for the coherence of the UK's "unwritten Constitution." The magnitude of these challenges is greatest in the two UK Nations which voted in 2016 to remain within the EU: Scotland and Northern Ireland. The extent to which the UK has, as a consequence of Brexit, become constitutionally "unhinged" can be seen in the contours of the two central elements of the process: The Withdrawal Agreement and the Trade and Co-operation Agreement. These arrangements were originally hailed as providing an "Oven-Ready" deal by the Prime Minister in 2019; were then signed-off by the same Prime Minister in 2020; only to be dismissed by the self-same Prime Minister as "ludicrous" shortly before their planned implementation in 2021. Moreover, the UK negotiators, while careful, on paper, to leave Northern Ireland within the EU Single Market, have produced not a sovereign triumph of coherent post-Brexit trading arrangements, but an economic disaster package, especially for Scotland. Beyond the immediate supply chain disruption and labor shortages these arrangements have led to in Great Britain, their differentiated application in Scotland and Northern Ireland appears to possess a specific Machiavellian logic: to pamper Northern Ireland while crushing the Scots. Rather than shoring up the Union these arrangements fuel Secession, another "unspoken" outcome of Brexit. This paper assesses the likely trajectory of future EU-UK relations as the UK moves away from the "punchbowl" equilibrium it achieved within the EU to the altogether more fractious, unstable and toxic relationship announced in the 2021 UK Command Paper. The paper goes further to assess, in the light of the EU Commission's reaction to the Command Paper, the consequences of Brexit on the territorial integrity of a "United" Kingdom in which Scotland and Northern Ireland are faced with ever starker choices between Composite Status, the search for new Governance settlements, Secession and eventual re-accession to the EU.

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