Brexit Time: an introduction

The idea behind this blog is that the UK’s withdrawal from the EU is shaped by, and through, time. The referendum on 23 June 2016 was a particular moment in time. But it was also a product of time: of political, economic, social and legal conditions that made a referendum – and its result – possible. We are now living in a time after the referendum in which nothing has changed but everything has changed. There will be a time when the formal process for withdrawal from the EU under Article 50 TEU will be triggered. There will then be a time for negotiations. And at some future time, the UK will leave the EU. So will begin another time: time after Brexit. Brexit Time is a personal reflection on how the process of withdrawal from the EU is unfolding.

Election Time

32793569023_e96c931c84_z

The 2016 referendum result left a yawning accountability gap.

A government which had campaigned for a Remain result was left to implement a vote for the UK to Leave. The Prime Minister which had chosen to hold a referendum resigned, with a new Prime Minister emerging not from a general election but from an internal leadership election within the Conservative Party. The governing party’s manifesto commitment to maintaining the UK within a Single Market has been abandoned by the new Prime Minister in her negotiating objectives for the UK’s post-Brexit relationship with the EU.

Meanwhile, the Parliament that enacted the EU referendum legislation doesn’t know how to hold the government to account for its implementation of the referendum result. Parliamentarians would not themselves, by and large, have voted for Brexit and many – including within the governing party itself – do not support the ‘hard’ Brexit being pursued by the government. MPs find themselves pushed and pulled between the competing forces of their own beliefs, party discipline and the preferences of their constituents.

It is time for a new government and a new Parliament. Theresa May has announced her intention to introduce into Parliament a motion that if passed by two-thirds of MPs will allow for an early election on 8 June 2017. It will be a defining election politically and constitutionally.

Politically, for the Conservatives, Theresa May’s hand will be strengthened in Brexit negotiations if she wins a general election. The timing is ideal as no real Brexit negotiations will get underway over the next few months so instead of kicking her heels, the PM is seeking to augment her domestic political position with a view to using that to her advantage once EU negotiations get underway. Importantly, were the Conservatives to increase their majority in the Commons, the PM would also be in a better position at the end of the negotiations knowing that the risk of parliamentary veto would have all but gone away. Election time and Brexit time dovetail very neatly for the Conservatives.

As for the other UK parties, this is the one and only time to seek to either stop Brexit entirely or to try and create a consensus about what sort of Brexit a future Prime Minister should seek. The Liberal Democrats should be the primary beneficiaries of this election in picking up seats from Labour in Remain constituencies like Cambridge which Labour took from the Lib Dems in 2015 and which they stand no chance of retaining in an election in June. The Lib Dems will also hope to repeat their bye-election victory in Richmond by picking up some seats from Conservatives. Nonetheless, unless the Lib Dems are in a position to form a coalition government with other Brexit-opposing parties, it is difficult to see how they can prevent Brexit happening.

It is hard to avoid the conclusion that a June election will be anything but apocalyptic for the Labour Party. It may be the moment when Labour finally rids itself of its failing leadership but it will also come at an enormous price in terms of its future capacity to survive and win elections. Disaffected centre-Left voters will drift towards other parties including the Liberal Democrats.

Perhaps surprisingly, this may also be the moment when the UKIP flush is finally busted. Having failed to secure electoral success at general elections in the past – including 2015 – UKIP may well find itself with no MPs whatsoever in a new Parliament.

But the obvious political and constitutional threat lies with Scotland and this is where Theresa May is making her biggest and riskiest gamble. If the SNP were to repeat the sort of electoral success they saw in 2015 – returning 56 out of 59 MPs – on an electoral mandate for a second independence referendum, then it becomes difficult to see what can or could stop Scotland separating from the UK. The Prime Minister is gambling that the SNP’s electoral surge has peaked. But it is hard to imagine that an election in June will wipe out the SNP’s dominance among Scotland’s MPs even if it loses the odd seat here and there. By calling this election, Theresa May is potentially sacrificing the union between Scotland the rest of the UK in the hope of strengthening not just her Brexit negotiating hand but also her own political position and that of her party. Rightly or wrongly, if the complaint in Scotland has often been that voters end up with a government and policies for which they do not vote, an election on 8 June may simply confirm that impression, making the case for, and likelihood of, independence all the greater.

Election time, Brexit time, independence time.

The Taming of Control – the Great Repeal Bill

After a nine-month hiatus, Brexit is now underway. On 29 March 2017, the United Kingdom’s Prime Minister Theresa May sent the European Council President Donald Tusk a letter notifying the European Council of the UK’s intention to withdraw from the European Union in terms of Article 50(2) TEU. The very next day, Theresa May’s Secretary of State for Exiting the EU David Davis unveiled a White Paper setting out the aims of a Great Repeal Bill (GRB). The intention to introduce legislation to repeal the European Communities Act 1972 – the domestic legislation that gives effect to EU law in UK law – had been trailed at the Conservative Party conference in October 2016. But as well as repealing this piece of domestic legislation, the intention behind the Bill is to domesticate existing European law in UK law as of the date when the UK leaves the EU. In  her Lancaster House speech in January 2017, Theresa May set out the aim behind the legislation:

The same rules and laws will apply on the day after Brexit as they did before. And it will be for the British Parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.

It is through the GRB that Theresa May intends to respond to the apparent desire of voters to take control over laws. But in seeking to domesticate EU law into national law on ‘Brexit Day’, the UK government is taming control.

I have written elsewhere about the technical challenges that will face the government in incorporating the acquis in domestic law. Others have written eloquently on the devolution and delegated rule-making aspects of the GRB. This post focuses on some selected key issues raised by the White Paper.

Convert and Preserve

In order to domesticate the EU acquis the GRB seeks to covert directly applicable EU law into domestic law and to preserve rules that are already incorporated into UK law through secondary legislation by replicating the 1972 Act as a legal basis for these secondary acts with the GRB. The aim is to ensure legal certainty and clarity at the point that the UK leaves the EU. But much like the emerging position on immigration, rather than Brexit leading to a fundamental change, it is likely to mean that much will carry on as before. It is a curious feature of recent referendums in the UK – including the Scottish independence referendum – that the radicalism of the change being sought is tempered by political statements as to how much will remain the same. Nonetheless, it is the idea that the UK Parliament will in the future be able to decide what it will or will not keep that underlines the claim of restoring ‘control’. Yet it is a control that is displaced to another time and without any clear indication of the circumstances upon which that control might be exercised.

One change is clear – the EU Charter of Fundamental Rights will not be a source of norms against which the legality of UK measures within the scope of EU law will be open to challenge. As to the interpretation of EU-derived rules in a manner that is consistent with fundamental rights, the implication is that it will be domestic standards in the form of the Human Rights Act will condition that interpretation.

The Implications of a ‘No Deal’

It is important to recognise the implications of the GRB in terms of what will happen to tariff and non-tariff barriers after Brexit. It is only through the conclusion of a WTO-compliant trade agreement that the UK and the EU would be able to continue trading on a tariff-free basis. It is accepted by the Prime Minister in her letter to Donald Tusk that failure to come to such a deal will result in the imposition of tariffs on WTO terms. That would be a bad deal for both the UK and the EU. But what is also clear from the White Paper is that even if there is no deal, the UK will still adopt the EU acquis in domestic law. The White Paper states:

The Great Repeal Bill would also support the scenario where the UK left the EU without a deal in place, by facilitating the creation of a complete and functioning statute book no longer reliant on EU membership.

After decades of complaints about Brussels ‘red-tape’, the UK Government is now seriously stating that it will countenance not only increased costs from tariffs but also the full application of all the regulatory norms and standards applicable to trade in goods and services after Brexit as a matter of domestic law. And this from a Conservative Government that has argued for free trade and reductions on the regulatory burdens on business.

How to Incorporate

As noted previously, EU rules that are not directly applicable are already transposed into UK law. As for directly applicable rules, the intention is not to transpose these rules as if they were directives: there will be no ’copying’ of the rules into domestic instruments. Rather, the White Paper states that:

… the Bill will make clear that EU regulations – as they applied in the UK the moment before we left the EU – will be converted into domestic law by the Bill and will continue to apply until legislators in the UK decide otherwise.

This is in effect what section 2(1) of the European Communities Act already does: it treats these regulations as a source of domestic law. The only difference seems to be that it is only those regulations that existed before Brexit Day which will be given this effect.

The Influence of the Court of Justice

A key manifestation of taking back control over laws is that the UK will not be bound by the jurisdiction of the Court of Justice after Brexit. Despite it being almost impossible to find specific let alone numerous examples of judgments with which Brexiteers disagree – or would disagree so much as to make leaving the EU the inevitable consequence – removing the jurisdiction of the Court has become a central plank of Brexit policy. It is, therefore, noteworthy that the White Paper states that:

To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.

This is a modification of what is in section 3(1) of the European Communities Act 1972. It is interesting that the GRB felt it necessary to say anything about this at all. It could simply have left it to the discretion of counsel and courts to see what use they made of CJEU jurisprudence as a guide to interpretation.  But it seems clear that the issue is not just about the UK now having control over EU law, it is about the UK Government having control over UK courts.

As to the capacity of UK courts to depart from existing CJEU case law, the GRB states:

… we propose that the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court.

In other words, UK courts will not have the freedom to depart from this case law and the Supreme Court itself will normally be bound by such precedent departing only ‘when it appears right to do so’. The circumstances upon which a logic of appropriateness would drive the Supreme Court to drift from CJEU jurisprudence in the post-Brexit world is a thesis to be written.

But in trying to lay down a marker – the CJEU jurisprudence as of Brexit Day – the GRB now creates confusion as to what to do with post-Brexit CJEU case law. On the one hand, the implication would be that it is not appropriate to refer to such case law given the more explicit instruction as regards pre-Brexit case law. On the other hand, the policy behind the GRB is to ensure consistency and certainty with the law remaining the same unless and until Parliament decides otherwise. One option could be that a principle of interpretative homogeneity should apply with it being for Parliament to correct any interpretations and applications of EU-derived law with which it wishes to depart. That would seem to be consistent with the general approach of the GRB.

Final Thoughts

For voters who wanted the UK to remain in the EU, the risk was how much would change after the UK leaves. For those who wanted the UK to leave the EU, the hope was that, indeed, much would change. Both sets of voters may be surprised at the efforts being placed on seeking continuity in governance. For Remain voters, while this may afford some comfort, it will simply reinforce the view that the better way of keeping things the same was for the UK to remain a Member State of the EU. For Leave voters, the outcome may be more ambiguous. On the one hand, post-Brexit continuity would seem to be a rebuttal of ‘Project Fear’ claims about the risks from leaving the EU. On the other hand, the taming of control rather than the taking of control may well lead some to conclude that Brexit is an incomplete political project.

 

This post is cross-posted on the excellent Verfassungblog by kind permission of Max Steinbeis.

Our Inauthentic Union

And so it begins. The withdrawal letter has been delivered. The trigger has been pulled. The obligatory presidential tweet has been sent. Article 50 is engaged.

Today’s political and media attention is, unsurprisingly, focused on the next stages in the Article 50 process. The European Council President Donald Tusk has already announced that he will convene a meeting of the European Council – meeting as the EU27 – on 29 April to determine the guidelines that will shape the negotiations. In light of these guidelines, the General Affairs Council is scheduled to meet on 16 May and it will establish the negotiating mandate to be given to Michel Barnier and his team of European Commission negotiators. As early as next week, the European Parliament will consider a draft resolution setting out its key demands for the negotiations.

It’s all very structured. There are dates and timeframes. Institutions have their roles. There is a process set down in law. It is orderly and constitutional. This is what the UK is engaging with. This is what the UK is leaving behind.

Meanwhile, the UK is a constitutional mess.

The UK Parliament legislated for a referendum without giving the government the legal authority by which it could act on a vote for the UK to leave the EU. The UK Supreme Court insisted that the UK government obtain legislative authorisation to trigger Article 50 rather than using prerogative powers. And so it made Parliament complicit in Brexit rather than leaving responsibility with the government.

Parliament duly went through the motions, failing to clothe this naked Brexit with any amendments that might have shaped either the process or substance of Brexit. Having demanded that the Executive act accordingly to law, the Supreme Court passed the buck to an Executive that controls the Commons, unimpeded by a bloated and impotent unelected Lords. If the fabric of the Palace of Westminster is overdue a renovation, it is nothing compared to the fragility and frailty of the democracy it contains.

The UK’s withdrawal from the EU is being steered by a Prime Minister that has not faced a general election as leader and who has shredded her party’s manifesto commitment to keep the UK in the Single Market.

Power-sharing in Northern Ireland is stalled with the possibility of direct rule hanging over it. Brexit has destabilised Northern Ireland with some seeing this as an opportunity to make its inhabitants choose between a united Ireland inside the EU or a United Kingdom outside of the EU.

Following its symbolic motion to reject the triggering of Article 50, the Scottish Parliament has now voted in favour of seeking permission to hold another independence referendum on the pretext that the UK’s withdrawal from the EU constitutes a material change since the 2014 referendum.

One divisive referendum begets another and another while our parliamentary democracy observes the chaos with utter bewilderment. What must our European neighbours think of us?

We have no process to manage this chaos. We have no structures and institutions to manage the domestic repercussions of Brexit.

And if the complaint about the EU is that it is overly-constitutionalised, then the complaint about the UK is not just that it is under-constitutionalised, it is apparently de-constitutionalising.

As the UK moves to end a membership of a European Union that voters felt was no longer in the UK’s interests, it has to confront its own political union, and a growing sense among many of its its members that this union and its values feel increasingly constitutionally inauthentic.

Multiple Choice: Indyref#2 and Brexit

With the parliamentary process on the EU Withdrawal Bill reaching its climax, speculation has intensified over when the Article 50 TEU notification will be sent by the Prime Minister. That speculation increased when it was announced that the Prime Minister would address the Commons on the outcome of last week’s European Council on Tuesday rather than the normal Monday statement. Were the Bill to be passed on Monday, that would give Theresa May the green light to announce the triggering of Article 50. However, Downing Street has ruled out a quick triggering of Article 50. While delaying a few more weeks buys the Government time in terms of the two-year negotiation window, it would be highly desirable to avoid a clash between the notification of the UK’s withdrawal from the EU and the meeting of leaders in Rome on 25 March to commemorate 60 years of the Treaty of Rome establishing the original European Economic Community. That gathering will see EU leaders in reflective mood following not just the UK’s referendum but also the European Commission’s recently published White Paper on the Future of Europe. However, a coincidental lobbing of the Brexit grenade wouldn’t do much to get the negotiations rolling on an amicable basis while taking the fizz out of the celebratory prosecco.

An editorial in The Independent counselled against an early triggering of Article 50 on the basis that to do so in the lead up to the Scottish National Party’s Spring conference might force the party’s leader and First Minister Nicola Sturgeon into calling for another independence referendum. But perhaps because the First Minister knew that this might not hinder a Prime Minister that seems intent on doing Brexit her way, and in order to avoid appearing reactive, today, Nicola Sturgeon has thrown her own political grenade by announcing that she will seek another independence referendum to be held in the Autumn of 2018.  This will entail seeking an agreement with the UK government and a section 30 order to authorise the Scottish Parliament to hold such a referendum. The difficulties associated with that process have been set out by Stephen Tierney.

In making her announcement, the First Minister has said that the independence referendum will offer Scottish voters a clear choice for the end of the Brexit process: between a ‘hard Brexit’ with the rest of the UK and an independent Scotland with its own relationship with the EU. However, both sides of that choice may be anything but clear.

On the ‘hard Brexit’ side a great deal depends on how one defines a ‘hard Brexit’ compared to a ‘soft Brexit’. Either you start from the perspective of a single type of soft Brexit, with everything else a variation of hard Brexit (which would then give the Scottish Government a wide scope to depict a number of outcomes as ‘hard Brexit’) or you start with a single model of hard Brexit, with everything else a softening of that position. To take the former approach, one might define soft Brexit simply as an EEA-style association agreement that includes a Customs Union and Single Market participation. To take the latter approach, a ‘no deal’ scenario would be one way of conceiving of a hard Brexit.

In respect of the ‘no deal’ hardest of Brexits, if the weekend papers were rife with gossip about when Article 50 might be triggered, then in more substantive terms their focus was on the report of the House of Commons Foreign Affairs Committee on what happens if there is ‘no deal’ at the end of the process. Together with submissions on behalf of the Bar Council, I gave evidence published in the report on what the risks might be in terms of non-tariff regulatory barriers and the absence of structures for administrative and regulatory cooperation. Although the Prime Minister has said that she would prefer ‘no deal’ to a bad deal, as the report highlights, the absence of a deal may be particularly bad and not simply because of the imposition of tariffs.

So the penalty default of leaving the EU with nothing ought at least to suggest that the hardest of Brexits might be avoided. It just may not be the softest of Brexits in terms of an EEA-style association agreement with the EU to keep the UK in the Single Market and the Customs Union: the preferred option of the Scottish Government as set out in its December 2016 ‘Scotland’s Place in Europe’ (‘SPiE’) White Paper. The point, then, is that Scottish voters may well have different preferences as to the choice between leaving with no deal or leaving with a Deep and Comprehensive Free Trade Agreement: there are choices on the ‘hard Brexit’ side and they would need to be apparent at the point when the referendum was taking place. This may be what is driving the First Minister’s timetable in that if Michel Barnier is right that the window for negotiations is only really 18 months, by October 2018, the shape of Brexit may be much clearer.

Where there is also uncertainty is on the other side of the choice: independence AND not ‘hard Brexit’. The issue of time and timing is again, crucial.

An independence referendum sometime in October 2018 would likely leave only six months until the UK formally left the EU around March/April 2019. If one recalls the first independence referendum, the Scottish Government had claimed that following a vote for independence, it would conduct its independence negotiations over 18 months. At the time, this timetable was regarded as, at best, ambitious and, at worst, merely wishful thinking. But assuming the same timetable, that would mean that – as part of the UK – Scotland would be outside the EU for at least a year and if the UK left without a deal, it would be a very hard Brexit. Indeed, the harder the Brexit the more one might imagine that a vote for independence might come about in the first place. So voting for independence will not, in the short term, necessarily immunise Scotland from the effects of a hard Brexit.

However, it is conceivable that the UK will exit the EU with some sort of deal and with a transitional framework pending negotiation and conclusion of a more comprehensive trade and cooperation deal. Indeed, a transitional framework might very well be useful in persuading an electorate to vote for independence with the buffer that pending that outcome, much will stay the same. Yet there are two difficulties with piggybacking on a holding-pattern UK-EU transitional framework. Firstly, it pegs the timing of independence to the length of the UK-EU transitional framework. So long as Scotland remains inside the UK following an independence vote, the transitional arrangements will apply. If it left the UK, it would have induced its own hard exit. Secondly, it simply begs the question as to what future relationship an independent Scotland would have with the EU.  The ambition is likely to be ultimately for EU membership. It may be that a Scottish government might be able to use a transitional framework to negotiate its way out of the UK but it is not necessarily guaranteed that it could also use that period to negotiate its way into the EU. The synchronicity of the detachment from the UK and attachment to the EU could well be elusive.

A variant of this use of a transitional framework could be to take on board the Scottish’s Government’s idea of a more differentiated Brexit. The argument for a differentiated approach had been premised on Scotland remaining part of the UK but with a different relationship with the EU. In the context of a vote for independence, the suggestion might be that Scotland and the rest of the UK would have different transitional paths in recognition of their different ultimate destinations.  But in essence this would be a crypto-accession process for Scotland while it remained part of the UK and it may be hard enough to get an agreement on a transitional process for the UK as a whole without adding in another level of complexity.

Another option for a Scottish Government would be to pursue a quick entry to EFTA and an early accession to the EFTA-EU EEA Agreement. Albeit falling short of a Customs Union it would give an independent Scotland a trade agreement with the four EFTA states and the trade deals negotiated by them, as well as preferential access to the EU Single Market. The question is whether it would be quicker and easier to negotiate getting into EFTA and the EEA during a transitional period when the UK has left the EU but Scotland is still inside the UK, or whether the same efforts could bring about EU membership at the end of a transitional period.

Given all these uncertainties, it is unhelpful to say that the electorate in Scotland will face a choice between a hard Brexit or independence and much more will need to happen over the next 18 months to clarify what sort of Brexit the UK will get and what sort of future EU/EFTA cooperation an independent Scotland can both seek, and obtain.

Three Knights, Six PIPs

The fallout from the Supreme Court’s ruling in Miller keeps coming. As the previous blog discussed, parliamentarians are seeking to clothe the Government’s bare Brexit Bill – introduced to give effect to the Supreme Court’s insistence on statutory authorisation for the triggering of notice under Article 50 – with amendments intended to enhance parliamentary oversight of the withdrawal process. This week the Bill reaches its committee stage in the House of Lords, after which it will become clear what amendments, if any, will make it onto the face of the Bill and which of these, if any, will be accepted by the Government.

The Article 50 Bill seeks to close the loop on what Parliament omitted to do with the European Referendum Act 2015: to equip the Government with the legal power to begin the withdrawal process. The Supreme Court accepted the argument that once this process began, the UK’s withdrawal from the EU would lead to a loss or variance of rights which had made available in domestic law through the European Communities Act 1972. As such, only Parliament had the authority to authorise a process which could lead to the loss or variance of these rights.

In a recent intervention by a group of leading lawyers, including Sir David Edward (former judge of the Court of Justice), Sir Francis Jacobs (former Advocate General) and Sir Jeremy Lever – collectively the ‘Three Knights’ – it is suggested that Parliament’s involvement is not limited to the triggering of a notice of withdrawal under Article 50, paragraph 2. If, as they contend, a withdrawal decision must be taken in accordance with ‘constitutional requirements’ – the wording of Article 50, paragraph 1 – and if the UK’s constitutional requirement is for Parliament to give statutory authorisation for a loss or variance of rights, as it will not be known what rights will be lost or varied until the end of the Article 50 process, Parliament must legislate to either approve a withdrawal agreement or to allow the UK to leave without such an agreement. To put is simply, fidelity to ‘constitutional requirements’ does not begin and end with the triggering of notification; it continues through to the end of the process. The authors of this Opinion view this as the necessary implication of the Supreme Court’s ruling in Miller.

There is much that may be tempting, normatively, in this enhanced level of political control over Brexit. But there are six Potential Interpretative Problems (PIPs) that emerge from the Three Knights Opinion.

Problem 1 – Chronology

The words ‘constitutional requirements’ are only used in paragraph 1 of Article 50 in terms of the taking of a decision to withdraw. No further mention is made of it in respect of the notification obligation under paragraph 2, or the final withdrawal under paragraph 3. One interpretation of the Three Knights Opinion is that it assumes that the decision to withdraw has not yet been formally taken and only happens at the end of the process and so attracts the need to comply with ‘constitutional requirements’. However, as my colleague Mark Elliott has also pointed out,  that would change the sequence and chronology of Article 50 from decision, notification, withdrawal to notification, decision, withdrawal.

Problem 2 – Gap between Law and Politics.

It is not just that the sequence of things changes, the implication is that the decision to withdraw has not yet been made legally, even though a notification of an intention to withdraw could already have been sent. While politically the decision may have been made – after all we have a minister and a government department for Exiting the European Union, – if fidelity to constitutional requirements bites when a decision is made to withdraw, it follows that this decision has not yet been made or has only been made conditionally or contingently. That may not be a problematic interpretation for lawyers but for voters and politicians, that a decision to withdraw was made in accordance with a referendum for which Parliament had enacted legislation might have been thought enough to satisfy constitutional requirements.

Problem 3 – The ‘Silence’ of Article 50(3)

What has always been striking about Article 50 is that it stipulates that a withdrawal agreement can be concluded, by a Qualified Majority Vote of the Member States (with the consent of the EP). Unlike other provisions of the treaty including the treaty amendment process under Article 48 TEU which expressly require domestic approval in accordance with constitutional requirement, this language is entirely – and one has to assume consciously – absent from the wording of Article 50, paragraph 3. To read across the wording of Article 50 into the ‘silence’ of  paragraph 3 in the way that the Supreme Court did with regards to paragraph 2, would not only further stretch the wording and structure of Article 50, it would introduce wording that appears to have been deliberately omitted.

Problem 4 – defeating the logic of Miller

The crux of the Opinion is the idea that it is only at the end of the process when it is clear whether the UK will have a withdrawal agreement or not and what rights will be protected or lost. As such, this is the point when the UK’s constitutional requirements bite. However, the more that this is true, the more that it undermines the very logic at the heart of Miller, namely the acceptance of Lord Pannick’s analogy that once Article 50 is triggered, the bullet hits the target and the loss or variance of rights becomes inevitable. If the Three Knights are right – and their Opinion also rests on an assumption that Article 50 notification is revocable – then it is less clear that the claimants in Miller ought to have succeeded in their Article 50 litigation.

Problem 5 – We Have Constitutional Requirements

If there is a concern about what constitutional provisions ought to bite at the end of the Article 50 process, as the Three Knights Opinion makes clear, we do actually have constitutional practices which have been enshrined in legislation. The most relevant are the provisions of the Constitutional Reform and Governance Act (CRAG) 2010. This Act builds on a previous convention that the Government must lay the text of a treaty before Parliament before ratification. It acknowledges the potential risk that the Executive could enter into binding commitments under international law through treaties that Parliament could fail to give effect to in national law. Thus, Parliament is given sight of the treaty before it is ratified. Under the terms of CRAG, a resolution in either House of Parliament can delay, but only the House of Commons can block if it continually resolves that the treaty not be ratified. These domestic constitutional requirements are not, however, merely interesting examples of analogous constitutional practices that are triggered once international negotiations produce an agreement. These ARE the constitutional requirements provided by domestic law. They deliberately stop short of ceding control and power to Parliament to dictate what is or is not acceptable from the point of view of the loss or variance of domestic rights before the Government finalises its negotiations. The Executive does not negotiate according to a mandate set by Parliament. Rather Parliament exercises scrutiny over negotiations and has control before ratification. This is a question of constitutional design with which one can argue, but it is what it is: the constitutional requirements that currently apply.

Problem 6 – From Description to Prescription

Article 50, paragraph 1, describes a state of affairs: the decision to withdraw from the EU. It describes a right that exists in international law. As regards the ‘constitutional requirements’ that apply to a decision, it again describes a state of affairs: it assumes that states have constitutional arrangements and that decisions are taken in accordance with them. It would be quite wrong from both a domestic and an EU law perspective to read this as prescribing particular constitutional requirements. But equally, it becomes problematic to use this description as a bootstrap for suggestions that the UK should have certain constitutional requirements in the absence of compelling domestic legal arguments explaining what these requirements are and how such requirements are triggered. What would make the Three Knights argument more compelling is actually to detach the claim for parliamentary approval from the wording of Article 50 entirely. This would rightly acknowledge that what is or is not a constitutional requirement can only be answered by the domestic legal order as indeed are the circumstances which trigger those domestic constitutional requirements. This would also avoid linking the proposal to the difficult issue of when, legally, a decision to withdraw is made.

Viewed in this way, it may well be that UK constitutional law imposes constitutional requirements right across the notification, decision and withdrawal stages. But for the reasons given, it may not be possible to argue that statutory authorisation is needed at the decision stage because it undermines the argument for statutory authorisation at the notification stage. And the argument to read in constitutional requirements at the end of the process has to be reconciled with what UK law DOES already say in terms of CRAG, as much as what Article 50 DOESN’T say about adoption of a withdrawal agreement in accordance with national constitutional requirements.

The Three Knights Opinion is a provocation to think about the design of constitutional requirements but as it stands the Three Knights Opinion has its PIPs.

This post is based on remarks made to the Law Society, Copenhagen, Denmark 27 February 2017.

Clothing Bare Brexit

The Supreme Court has decided that Parliament must provide statutory authorisation before the Prime Minister serves notice of the UK’s intention to withdraw from the European Union in terms of Article 50 TEU. A Bill – the European Union (Notification of Withdrawal) Bill – was presented to Parliament on 26th January 2017 and is due to complete its second and third readings by 8 February.

Lawyers will pick over the Supreme Court’s judgment for all its constitutional nuance. And as my colleague Mark Elliott explains, there is plenty in the judgment to discuss. Yet the outcome of the judgment – in strict legal terms – was always going to be narrow and technical. Either the Government could exercise prerogative powers to give notice under Article 50 or it needed statutory authorisation. Having already been embarrassed by its lack of a plan for Brexit, the Government was now being exposed by the Supreme Court as legally naked in offering a referendum without having the legal power to act on a vote for the UK to leave the EU.

Parliament must now stitch together some legal clothing to cover the Government’s bare Brexit. The Supreme Court itself indicated that Parliament could ‘content itself with a very brief statute’ [para. 122].  And indeed, the Bill presented this week to Parliament is positively skimpy. It consists of two clauses, with clause one stating:


(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European 
Union, the United Kingdom’s intention to withdraw from the EU.

(2) This section has effect despite any provision made by or under the European 
Communities Act 1972 or any other enactment.

So has the victory of the lead claimants in the Miller case proved somewhat hollow? In media interviews this week, Gina Miller stressed that the point of the case was to ensure Parliament played its role. Yet there appeared to be a clear distinction between, on the one hand, Parliament being asked to give formal statutory authorisation to begin the withdrawal process and, on the other hand Parliament’s role in scrutinising the negotiation and conclusion of the withdrawal agreement and any other associated agreements on the UK’s future relationship with the EU. In any case, since the referendum, both Houses of Parliament and their select committees have launched enquiry after enquiry, seeking to hold the Government to account for its Brexit strategy. Noting the power which the European Parliament has to give its consent to a withdrawal agreement under Article 50, the House of Lords European Committee has been trying to ‘bootstrap Brexit’ by demanding that the UK Parliament have at least the same level of scrutiny and oversight as that of the European Parliament. Viewed in this light, it was, perhaps, less obvious what the outcome of the Supreme Court case would add to Parliamentary oversight beyond what Parliament itself was capable of achieving.

But if the Supreme Court ruling represented the law of politics, there is also a politics of law. A Bill to authorise the triggering of Article 50 was always going to bring to the fore the tension between the referendum as an exercise in direct democracy and the role of MPs in a system of representative democracy. Having provided the legal authority for a referendum, by what political authority could or should MPs collectively decide not to give the Prime Minister the authority to trigger Article 50? As a Government Bill, the Government will expect Conservative MPs to back its leader and vote to trigger Article 50. The Labour leader has given his own party a three-line whip to support the Bill, prompting one shadow Cabinet member Jo Stevens and one shadow spokesperson Tulip Siddiq to resign from the Opposition front bench.  MPs from the Scottish National Party – whose MPs did not vote in favour of holding the EU referendum in the first place – will vote against the Bill. Liberal Democrat MPs have threatened to vote against the Bill unless it contains the possibility for a referendum on the final Brexit deal. Beyond the party positions, for individual MPs there is the dilemma of whether to act simply as the delegate of their constituencies – voting for or against the Bill in line with the dominant local Leave or Remain sentiments – or to act as representatives, constrained only by their conscience and the demands of party discipline. It seems likely that the Bill will be passed, but the process will expose the difficulties in reconciling the politics of the popular mandate with the politics of parliamentary democracy.

But there won’t simply be a vote on the Bill as presented to Parliament. Already amendments have been tabled seeking, amongst other things, to give Parliament the power to approve any withdrawal and future cooperation agreements; to put the role of the Joint Ministerial Committee – the forum for the representation of the interests of the devolved governments – on a statutory footing; and to suspend the coming into effect of the Act unless both Houses of Parliament have approved the Brexit White Paper which the Prime Minister has promised to place before Parliament.

And so, the political parties, MPs and the Lords will clothe the Article 50 Bill with a range of amendments which the Government will seek to remove. If we thought that the Brexit negotiations were going to be like a game of cards, we probably didn’t imagine it would be an exercise in Strip Poker.

Brace! Brace! Britain is Exiting the Single Market

The year began with the outgoing UK Ambassador to the UK complaining that we didn’t yet know the UK Government’s negotiating objectives for Brexit. In her speech at Lancaster House in London on 17th January, the British Prime Minister Theresa May has given some stronger indications of her government’s direction of travel for the UK’s future relationship with the European Union. The headline political message is that the UK will be outside the Single Market.

In more formal legal terms, what this means is that the UK will not seek any type of association agreement with the EU. This will disappoint those, like Andrew Duff, for whom such an arrangement offered the softest of Brexit landings. Association agreements can be concluded between the EU and a non-Member State or an international organisation. The EU has a large number of these agreements including with countries in the EU’s Mediterranean near-neighbourhood like Israel, Morocco and Tunisia. In June 2014, the EU agreed an association agreement with Ukraine, including an extensive free trade agreement together with structures for policy and political cooperation beyond trade.

The difficulty with association agreements is that they require the unanimous consent of all EU Member States’ governments for signature, and can only formally enter into force once ratified in all Member States according to their own constitutional requirements. In the Netherlands, a citizen-initiated referendum – a result of the Dutch Advisory Referendum Act 2015 – put to voters the question of whether they were for, or against, the adoption of the Approval Act that would ratify the Ukraine agreement. On 6 April 2016, the electorate rejected the deal (albeit on a low turnout). This was only the second referendum to be held in the Netherlands on EU issues and, like the first – the referendum on the Constitutional Treaty held in June 2005 – it saw the rejection of what was on offer. So from a legal point of view, embarking on an association agreement would entail certain risks of delay or even failure and so create the kind of uncertainty that the Prime Minister made clear – as one of her twelve objectives for Brexit – had to be avoided.

The other obvious association agreement model is that which the European Free Trade Association has with the EU in the form of the European Economic Area agreement (Switzerland does not participate but has its own series of bilateral agreements with the EU). It became clear following the referendum that the EEA model – sometimes known rather reductively as the ‘Norway’ model was a potentially attractive option, whether as the end result or even as a transitional step to allow the UK to weather the ‘Brexit Storm’.

The EEA agreement entails the four freedoms that underpin the Single Market, but does not include a Customs Union – so EFTA states are free to pursue other trade agreements (EFTA currently has 27 free trade agreements). Participating EFTA states also have access to the EU’s research programmes like Horizon 2020 that allows for pan-European research collaboration and researcher mobility. But this level of engagement requires contributions to be paid with Norway making annual contributions of over €800 million.  The combination of free movement of workers and contributions to the EU effectively ruled this option out for the UK government. After all – and a point repeated by Donald Tusk in a tweet response to the PM’s speech – the Single Market was regarded by EU leaders as ‘indivisible’ such that the UK could not cherry-pick which bits it did or did not want.

Instead what is on the cards is a comprehensive free trade agreement. And despite the much-repeated phrase of a ‘Bespoke Brexit’ it is much more likely to be a Canada Copy. The Canada-EU agreement (CETA) is a very extensive free trade agreement. So extensive it was treated as a ‘mixed’ agreement because it was considered to stray beyond matters within the exclusive competence of the EU under the Common Commercial Policy (CCP). The precise scope of the CCP has been a matter of legal debate. But rightly or wrongly as a matter of political practice it was conceded by the European Commission that CETA was a mixed agreement and so required not just signature by Member State governments but also domestic ratification (much like association agreements). It will be recalled that there was a hiatus when the Belgian Walloon Parliament initially withheld its consent, raising concerns about the protection of labour and environmental standards as well as the novel dispute-resolution mechanism contained in the agreement. Legal challenges were also brought before the German Constitutional Court in a failed bit to halt German approval of the provisional application of the CETA agreement.

In an Opinion given in late December 2016, Advocate General Sharpston offered the European Court of Justice her view of the scope of the EU’s exclusive competence under the Common Commercial Policy. If accepted, it will give a relatively wide scope to that exclusive competence – trade in goods, trade and investment in renewable energy, trade in services and government procurement (excluding certain transport services), foreign direct investment, commercial aspects of intellectual property rights, competition law, trade in road and rail transport services to name some of the key areas. This would give Theresa May’s government a useful template as to how ambitious a free trade agreement could be and still fall within the scope of the EU’s exclusive commercial policy competence and so avoid some of the pitfalls and risks of domestic ratification.

None of which, of course, resolves the fundamental issue of whether the free trade agreement can be negotiated in parallel with the withdrawal agreement or whether it necessarily has to follow Brexit, when the UK will become a non-Member State. There will not, in my view, be a single Brexit agreement but rather a bundle of agreements and the next stage of clarification that is required is around the structure and sequencing of that bundle of agreements.

But if the approach which the British Prime Minister has set out is guided by certain legal considerations, it is at heart an attempt to translate the reasons behind the referendum result into a political programme for Brexit.

The referendum was not a general election. It did not elect a political party into power to deliver Brexit based on an election manifesto. UKIP wasn’t even directly linked to the lead campaign for Leave but was instead linked to other organisations including Leave.EU. The lead campaign was run by an organisation, Vote Leave. While some of the politicians associated with that campaign are now in government, Vote Leave has absolutely no responsibility for what will now happen. Indeed, one of the more dubious responses to the referendum result has been the Vote Leave Watch campaign which attempts to hold Vote Leave to account for promises made during the campaign. It is the government that needs to be held to account. The normal way in which a government is held to account is through the election process and through parliamentary oversight.

Although parties are not bound by their election manifestos in any legal sense, they are judged on them politically. David Cameron won the 2015 general election with a Conservative Manifesto that promised to ‘safeguard British interests in the Single Market’ and to ‘extend the Single Market to new areas like digital’, concluding that ‘we say: Yes to the Single Market’. A Conservative government under a new leader – and without a general election – is now saying ‘No’ to the Single Market.

The UK government’s direction of travel will also put the UK and Scottish Governments on a collision course. On 20 December 2016, the Scottish Government published its plans for ‘Scotland’s Place in Europe’. Its priorities are continuing UK participation in the Single Market – through the EEA – and the Customs Union. If that objective could not be obtained for the UK, then it proposed that a deal should be sought that would allow Scotland to participate in the EEA (it being accepted that the whole of the UK had to be either in or out of the Customs Union).

Not only did Theresa May make clear that the UK was leaving the Single Market and the Customs Union, she also wants to ‘Strengthen the Union’ with a plea ‘to face the future together’ and, more pointedly, the demand that ‘no new barriers to living and doing business within our own Union are created’. The Scottish Government’s plan is being discussed at the Joint Ministerial Committee (EU Negotiations) – the forum being used by the UK Government for formal talks with the devolved administrations – on 19th January but it is difficult to imagine circumstances in which Theresa May’s government will seek to carve out a special deal for Scotland. The Prime Minister’s speech is a way of backing the Scottish First Minister Nicola Sturgeon into a corner to either back down on her bid for a differentiated Brexit or to come out fighting for an independent Scotland.

As for parliamentary oversight, the key point in the Prime Minister’s speech is that the final agreement with the EU will be put to a vote in both House of Parliament. This is consistent with the view – and one put forward by the House of Lords EU Committee in its report on parliamentary scrutiny of Brexit – that the provisions of the Constitutional Reform and Governance Act 2010 would be triggered by a withdrawal agreement. But aside from the legalities, there are good reasons for the Government to engage with Parliament.

In the judgment to be delivered by the Supreme Court on 24th January, we will learn whether Parliament needs to give statutory authorization for Article 50 to be triggered. While much attention will be paid to the Supreme Court’s reasoning, in the end, the outcome is binary: either a statute is needed or it is not. If it is required, then Parliament will need to legislate to begin the withdrawal process. The political parties appear to accept that they do not have a mandate to block the legislation. The Liberal Democrats, however, may attempt to tag on a requirement for a second referendum before withdrawal takes place and any new agreement replaces the UK’s existing membership of the EU. To do so would be a mistake. It would suggest that Theresa May’s Brexit Government can only act on a direct mandate from the people through a referendum rather than being – like any government – primarily accountable to Parliament. If it is necessary to go back to the people it should be through a general election. If the Supreme Court decides that Parliament is not required to give statutory authorization, the arguments for parliamentary oversight of the Brexit negotiationsremain unchanged.

Of course – and as the Prime Minister herself made clear – the UK may end up with no deal at all if something acceptable to both sides cannot be agreed. That won’t be a hard landing. It will be a crash landing. Brace, brace.