Campaign Times


Beginning today, I will be adapting and serialising chapters from Brexit Time. During the EU referendum campaign, the ‘purdah’ rules on pre-election political announcements shaped Brexit Time and influenced the timing and flow of political events. Before returning to these Campaign Times, it is worth reflecting briefly on the events of last week and how rules on ‘purdah’ continue to shape Brexit Time.

60 seconds. Four minutes. Accounts differ, but either way, the leaders of the EU27 took little time to adopt the guidelines for the negotiations of the UK’s withdrawal from the EU, at a special European Council meeting.

The guidelines confirm the gulf between the position of the UK and the EU on the sequencing of these negotiations. For the UK – inspired by the hopeless optimism of Brexiteers – everything is possible and up for negotiation from the outset. For the EU, the Article 50 negotiations and the future relationship negotiations are different things with progress on the former being necessary before starting discussions on the latter. All this in the wake of a meeting between Theresa May and Jean-Claude Juncker earlier in the week, widely reported to have increased fears that no deal will be struck given the unrealistic – even ‘delusional’ – expectations of the UK government.

In any event, the negotiations will not start immediately. It remains for the Council to agree and adopt the negotiation directives to be given to the European Commission as the Union’s Brexit negotiator. And with a general election now underway in the UK, the EU will have to wait until 9 June before discussions can commence with whoever occupies the top government posts after the election.

Elections – and referendums – interrupt the normal conduct of political business. Pre-election or ‘purdah’ rules, restrict what governments announce and what decisions they take. Theresa May’s decision to call an early election has triggered these rules. One early consequence was the government’s bid to use the election to delay publication of its air pollution plans, despite ClientEarth’s earlier successful High Court legal challenge: the bid failed.  However, the pre-election rules have had a more direct impact on UK-EU relations. Citing pre-election restrictions, on 25 April, the UK government informed other Member States that it reserved its position on a vote on a package of EU spending measures pending the outcome of the election. The reserve, however, has been interpreted as less the necessary consequence of domestic purdah rules and more an attempt to flex political muscle before Brexit negotiations get underway. The move has clearly annoyed the UK’s EU partners. Jean-Claude Juncker’s Head of Cabinet, Martin Selmayr tweeted that: “Now, we’ll have to apply FULL PURDAH RECIPROCITY. Talks with UK, formal or informal, will start only after 8 June’. In other words, the UK’s own rules will be used against it.

* * * * *

Adapted from Chapter 5: Campaign Times

For those agitating for a referendum on the UK’s relationship with the EU, the 2016 referendum had been a long-time coming. A combination of forces and events had brought the UK to this moment in time. Yet this ‘moment’ was equally a series of more specific campaign times, structured by law – the combined effects of the Political Parties, Elections and Referendums Act 2000 and the European Referendum Act 2015 – and by politics.

An important restriction on the conduct of government during the referendum campaign arose from Section 125 of the 2000 Act which prevented the government and other bodies whose expenses are paid out of public funds from publishing material relevant to the referendum or to issues relevant to the referendum question. This period of ‘purdah’ applied for the four weeks leading up to the date of the referendum. However, when introduced to Parliament, the European Referendum Bill had proposed disapplying section 125. But as a sign of the divisions with the Conservative Party and as an effect of the slim majority obtained by the Conservatives in the 2015 election, an Opposition amendment reinstating the purdah rules attracted the support of a sufficient number of rebel Conservative MPs to amend the Bill.

The date of the referendum had not been resolved by the European Referendum Act. It simply provided for a referendum to be held by 31st December 2017, leaving it up to minister to decide by regulations the precise date for the referendum.

In many ways, it would have made sense to hold the referendum in September 2016. Indeed, there would be a considerable advantage in having the campaign run through August when Parliament would be in recess and normal government business would be quieter making it easier to apply the rules on purdah. A September plebiscite would also give the Prime Minister more time, if necessary, to undertake the reforms and renegotiation that would precede the referendum. But aside from the potential delay that a September referendum might entail, the main reason for avoiding September was the fear that newspaper and television headlines could be dominated by a summer refugee crisis. The consequence was that opinion crystallised around a June referendum. Even if the deal on the UK’s ‘new settlement’ had to wait until the February 2016 European Council, there would be enough time for the referendum campaign.

On 3 March 2016, the European Union Referendum (Date of referendum etc.) Regulations 2016 designated 23 June 2016 as the date of the referendum. That meant that the ten-week ‘referendum period’ – significant in triggering the campaign rules of the 2000 Act – would commence on 15 April 2016.

The Leave campaign had a difficult start to its campaign not least because it was not clear until days before the referendum period began who would be entitled to be the lead campaigner. Before the purdah period kicked in on 27 May 2016, there would also be six weeks of the referendum campaign during which time Government could actively pursue its policy of remaining in the EU, and contest the claims and assertions of Leave campaigners. This also gave the Government a clear deadline by which to publish reports in support of its position. Particularly noteworthy in that regard was an analysis released by the Treasury days before the purdah deadline in which it was predicted that Brexit would create a recession, loss of jobs and a currency devaluation. The report was heavily criticised by Leave campaigners, who challenged the economic assumptions behind the report and indeed, the role of ‘experts’ in public decision-making. At a more institutional level, it was even suggested that a traditionally sceptical Treasury had been overtly politicised towards supporting a Remain vote. For other observers, while the Treasury analysis itself was consistent with the analytical standards of departmental reports, the presentation of the findings on the Treasury website in ways that echoed the political spin placed on the report by the then Chancellor had drawn the civil service more directly into the political arena. The negative reactions to the work of the Treasury would later be criticised as a ‘consequence of departmental cultural hubris’ in a report prepared by Lord Kerslake, the former head of the Civil Service.

The campaigns ended when voters went to the polls on 23 June. At 7.01 on 24 June 2016, Jenny Watson the Chief Counting Officer for the referendum and Chair of the Electoral Commission announced the referendum result. 17,410,742 votes were in favour of Leave; 16,141,241 were in favour of Remain. The UK had voted to leave the EU.

Brexit Time will be published by Cambridge University Press in June.

Election Time


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.