Brexit Shmexit – what does it really mean?
By Greg Scott, Memery Crystal LLP
On Thursday 23 June some 72% of eligible UK voters voted, by a majority of 52% to 48% to leave the EU. Those of us living in the UK will have heard little else over the last few days other than fevered analysis by so called “experts” as to what this vote means and the implications, both for the UK and our European neighbours. The purpose of this note is to help you understand the reasons for and the implications of this vote and how it might impact the decisions of your clients who already operate in the UK or who are considering acquiring or investing in UK businesses, whether as a bridge to Europe or otherwise.
What does the vote mean?
Contrary to Fox News’ assertion in the early hours of 24th June that Britain was voting to leave the UN (although who knows what may lie ahead?), citizens of the UK voted by a narrow majority to leave the EU. As a country whose constitution is, in typically British fashion, unwritten and held together by a number of customs and conventions, it may not surprise you to learn that this referendum does not, per se, bind the UK Government. Indeed, our elected MPs are, in large majority, in favour of remaining within the EU. Moreover, even if the UK Government is minded to accept the expressed will of its citizens, there is no single button that it can press to magically bring about withdrawal from the EU. The starting gun will be fired by serving a notice to leave under Article 50 of the Lisbon Treaty. That then provides a minimum two year period during which the complex relationship between the EU and the UK (built up over the last 40 years or so through a combination of treaties and binding EU legislation) will need to be picked apart. So, for the time being the UK remains part of the single market in the European Economic Area (“EEA”) and subject to all EU laws and provisions which we have not already opted out from. That will remain true this time next year and it will very probably remain true this time in two years’ time. So, at the risk of undermining the much-quoted mantra that “markets hate uncertainty”, there is the certainty, at least for the short to medium term that nothing much will change.
The bigger issue of course is what the UK’s relationship with the EU will be after it has withdrawn and for business, perhaps the single biggest issue is access to the single market. A key factor driving the attractiveness of the UK as a centre for Europe-facing businesses is the combination of all the other advantages of the UK (low rates of corporation tax which might go even lower, a wide network of international tax treaties, an efficient legal system for settling business disputes, the English language, time zones and education/infrastructure, to name but just a few) allied with access to the EEA single market. More of this below.
Why did we vote to leave?
Most law firms have ignored this issue, regarding it as not relevant for decision making of their clients or of little practical consequence. However, I believe it is important to understand the motivation of Leave voters and how Parliament will seek to implement their wish as this will inform our domestic politics over the next two years and of course, the tenor and priorities of our negotiations with the EU which will, in turn, influence the outcome.
The voting patterns for Leave/Remain were striking in two fundamental respects, namely the generational divide (young people are pro-Remain and older people are pro-Leave) and the regional divide with London and Scotland (for different reasons wrapped up with a sizeable successionist view) being pro-Remain and poorer communities being more pro-Leave.
Common themes driving the Leave vote included:
- Sovereignty - joining any supra-national organisation (think NATO, the UN) will inevitably require you to compromise and to subsume some of your rules and regulations to those of the higher entity. However, feeling had been growing for some time that the EU was run by an unaccountable and bureaucratic elite and that there was a growing “democratic deficit” whereby rules having significant economic or constitutional effect were being passed by people that no-one here had voted for or even heard of.
- Immigration – although the recent waves of refugees from North Africa and the Middle East have very little to do, on one level, with the EU, the EU’s patent inability to find cross-border solutions which addressed the concerns of the front-line sovereign states (such as Austria and Hungary) both eroded faith in the ability of the EU as a supra-national institution and created a febrile atmosphere here in the UK towards immigration in general. Access to the EEA single market requires free movement of goods and people. Whilst the large majority of British citizens have welcomed the contribution of the EU’s East European immigrants in doing jobs that frankly, they were not prepared to do and whilst many acknowledge that this has been of net benefit to the UK economy, there has also been a growing concern that the immigration is uncontrolled (which, in the single market is, by definition, true), has exacerbated unemployment in poor communities and has strained public services such as schools and hospitals. This was undoubtedly an important factor of persuading a number of people to vote Leave.
- Red Tape – whilst very big, international businesses were generally pro-Remain, smaller businesses were far more ambivalent to the EU citing the growing time and cost burden of complying with EU-derived employment and environmental rules.
Will the UK actually leave the EU?
This may seem like a stupid question but as explained above, the only thing we know for sure at the moment is that a small majority of UK voters have given a non-binding view to the UK government that they wish to leave the current version of the EU. However, it seems that many Leavers are already regretting their decision and did not really think that they would win. Moreover, it is far from clear how the EU itself will change over the minimum two year negotiation period. It is not inconceivable that one or more further states (The Netherlands, Denmark?) will hold referendums to leave and that even if they do not leave, this will strengthen the collective demand from countries outside the Germany/France/Italy core for reform within the EU. If that happens, the UK government might find that EU Mark II is much preferable to EU Mark I and that voters should consider backing that as an alternative to leaving all together. Another referendum anyone?
How will Brexit affect the UK economy and business?
It is far too soon to be able to say how the UK economy will be affected in the long term. In the short term, it is clear that both the UK stock market and sterling have fallen significantly and are likely to remain volatile in the short term. This appears to have been driven by two factors. The most important of these is uncertainty but there is also a real concern that Brexit will damage the UK economy (particularly the City of London which pays a disproportionately high amount of tax to the UK Treasury). There is also the justifiable concern that domestic political volatility will not help businesses. The big fear is that business decision makers will simply sit on their hands while they ride through the current volatility and will postpone investment decisions until the path ahead looks clearer. That would weaken demand and growth with the consequential fall in confidence also hitting personal consumption.
At current historically low rates, Sterling’s recent precipitous fall makes UK assets cheaper for US buyers, both to buy and to run. Conversely, repatriating UK profits will yield less. I am not an FX expert so I will resist the temptation of trying to predict where the Sterling/US Dollar rate will be in six months or a year’s time.
EU law affects every aspect of UK business, both through Directives having direct effect and also through secondary UK legislation which has been brought it to give certain other Directives the force of law. We have endeavoured to highlight very briefly below how leaving the EU might affect business in different sectors and in different ways.
Financial Services/Asset Management
Leaving the EU would present an opportunity for deregulation – there has long been inherent opposition in the UK to the more regulatory tendencies of the EU. However, we might also lose passporting rights which have been valuable for larger listed companies seeking to raise funds across EU states. This could also affect the asset management sector if and to the extent that funds cease to qualify for UCITS and AIFMD passports.
If we leave the EU, we would lose the benefit of any trade agreements between the EU and third party states such as the negotiation currently being conducted between the EU and the US on the Transatlantic Trade and Investment Partnership (although prospects of that being concluded any time soon are in question). The UK would have to negotiate a more patchwork network of bi-lateral agreements and it is impossible to say at this stage whether that would be to the overall advantage or disadvantage of businesses trading with those countries. Some have even suggested that once free of the EU straight-jacket, the UK could apply to join NAFTA.
Short term reaction to Brexit has been the suspension, to date, of 4 large commercial property funds (including today's reported suspension of trading by Henderson). Will other funds follow? For US investors, the three most pressing macro issues are:
• will a lower rate of Sterling make these assets cheaper?
• will the current volatility and uncertainty feed into a UK recession which reduces demand for UK property with a consequential reduction in prices and/or yields?
• will London lose its lustre as a safe haven for international investors?
The UK already has a less regulated regime for employment than many other EU states such as France and Spain. Leaving the EU might, subject to the nature of any future UK government, suggest further deregulation which could be attractive to business owners.
EU trade marks have become increasingly popular and leaving the EU may require owners of those trademarks to re-register under a new UK regime and seek separate registrations to protect their products and services sold and supplied into the EU.
There has been little friction between the policies promoted by the EU and the UK in this area and there is unlikely to be much substantive change if and when we leave.
Similarly, the UK has tended to pursue a similar track to the EU and any business looking to supply goods or services into the EU will still have to abide by relevant EU rules. An important theme of EU competition law has been to prohibit individual states from giving state aid to key sectors and on more than one occasion, this has caught tax incentives which the UK Government have sought to give to funders of smaller, UK-based businesses. Leaving the EU may enable a more progressive regime of tax breaks to come into force which could in turn, stimulate retail investment in growing businesses.
Existing contracts may well contain references to the EU in terms of defining territory. These may have to be looked at again. Similarly, parties may wish to consider inserting conditions or termination rights or variation clauses in the event that the UK ceases to be part of the EU at any given time. Finally, EU rules on which states courts have jurisdiction in given circumstances may cease to apply and this will have to be addressed in choice of law and jurisdiction clauses in contracts.
Published: Juli 2016; Photo: Colourbox.de - Flik47