Get out the back, Jack? make a new plan, Stan?

5 July 2016 by Rosalind English

… well there aren’t exactly fifty ways to leave the European Union, but from the vociferous debate in legal as well as political circles we might be excused for thinking there are a great deal more. Today’s Times reports that “1,000 people join legal fight against Brexit” to ensure that parliament votes before the government formally triggers the exit procedure from the EU. David Pannick will argue the challenge. But against such a legal heavyweight is former law lord Peter Millett, whose letter published in yesterday’s Times declares that the exercise of our treaty rights is a matter for the executive and the triggering of Article 50 does not require parliamentary approval. So whom are we to believe?

In her guest post Joelle Grogan has speculated upon the possible future for rights in the immediate aftermath of the referendum so I won’t cover the same ground. I will simply draw out some of the questions considered in two reports produced before the result of the referendum was known: 1. House of Lords EU Committee Report (HL138) and the more detailed analysis by Richard Gordon QC and Rowena Moffatt: 2 “Brexit: The Immediate Legal Consequences”.

1. The House of Lords EU Report

Is Article 50 the only means of leaving the EU?

States have an inherent right to withdraw. It would be inconceivable that the member states of such a close economic arrangement would force an unwilling state to continue to participate. The significance of Article 50 therefore lies not in establishing a right to withdraw but in defining the procedure for doing so.

However, the European Act 1972 cannot simply be repealed without reference to Article 50. Even if the UK sought to rely on the Vienna Convention one the Law of Treaties in order avoid breaching international law, that Convention has to be read in the light of the specific procedures for treaty change laid out in the EU treaties.

The negotiation process

The UK is under an obligation to notify the European Council, although Article 50 is silent on the timing of any such notification. The provision does specify that the European Parliament has the power to give consent to any draft withdrawal agreement and because of this, the report concludes that the Member States would have the greatest influence over the negotiations, rather than the EU institutions. As one of the experts giving evidence to the HL Committee predicted:

As regards the withdrawal agreement, MEPs will no doubt seek to protect the interests and vested rights of Union Citizens living in the UK. And one would hope that UK MEPs would have the same concern for [the estimated 2 million] UK citizens resident in other Member States.

If the new arrangement with the EU does not include free movement of people, there will need to be put in place arrangements to protect those with acquired rights, that is, permanent residence in other EU countries or the UK after five years. These rights entail, significantly, access to schools, health care and social security.

There will be strong bargaining positions. For example, an east European country may have no particular interest in the future of fisheries, but it would have a very obvious interest in the position of its nationals in the UK and future access to the UK and such a country

might want to block a deal on fisheries unless [it gets] what [it wants] on transition and future access for its nationals.

If the tensions caused by these negotiations drag the process beyond the two year limit dictated by Article 50, the UK will be out. Should the UK be forced to withdraw unilaterally in this way it will need to fall back on the trading terms of the World Trade Organisation. Tariffs would naturally apply between the UK and the EU, and the question of acquired rights would be handled unilaterally. In such an event the UK may well introduce unilateral immigration controls on EU citizens, and vice versa, individual member states of the EU could introduce immigration controls on resident UK citizens. It would therefore be in the interests of many people to achieve a negotiated settlement rather than risk a unilateral fall-out.

The role of the UK parliament

Although treaty negotiations is an exercise of the Royal Prerogative – in practical terms, the government acting on its own without the involvement of parliament – the future trading relationship is so important that there should be a more flexible arrangement between parliament and the executive.

2. Brexit: The Immediate Legal Consequences

A number of interesting questions are considered in this lengthy paper and the following summary cannot do justice to it.  Much of the report deals with issues in respect of the devolved governments, and the possible scenarios in relation to freedom of movement. All this has received plenty of coverage elsewhere and the outcome is unknown, so I will pick out the questions that seem salient to me.

Where will we stand vis a vis those laws which we have decided to retain post-withdrawal when it comes to litigation? Will the case law of the European Court still have the value of precedent? Not if the ECA were repealed, Section 3 of which renders the status of CJEU judgments as binding.

Unless legislation specified the status to be accorded to CJEU judgments the domestic courts would have to decide how far to take them into account when determining questions of EU law.

Whether or not the influence of the CJEU on domestic law is a good thing is a matter of opinion (see Marina Wheeler QC’s posts on this point here and here).

The doctrines of direct effect and direct applicability, which have meant that EU law has operated directly in this country without implementing legislation, are imported via Section 2 of the European Communities Act. The section also encompasses those EU laws (Directives) that do not have direct effect, making it possible to give these effect in domestic law via secondary legislation such as statutory instruments. Would simple repeal of the ECA achieve the objective of retaining those parts of EU law which the government wishes to retain, while getting rid of others? Yes, say the authors of this report. What will be left after repeal of the ECA (and its all-important Section 2, the sole source of authority for the doctrine of supremacy of EU law) is primary legislation that transposes EU law. This implementing primary legislation can be left on the statute and amended, or repealed piecemeal.

In that fashion there can be proper parliamentary scrutiny of how EU law is amended or repealed after Brexit.

As for all the EU directly effective and applicable rules that are dispatched when the ECA is repealed, do we necessarily want to throw the baby out with the bathwater? The authors give an example of the Competition Act 1998, which is based on a series of EU regulations and directives.

Competition law thus affords and example of all the elements of the sources of EU law in UK law that would need to be addressed … and that would in no way be resolved by a repeal of the ECA.

… The core point is that in many discrete areas of domestic law such as competition law, EU law is integral to the operation of that law.

Comment

One might wonder why all these difficulties are presented as being so insurmountable as it took a mere Act of Parliament with a Henry VIII clause (section 2) to import the whole of EU law, past and future, into domestic law as well as a concept hitherto unknown to our unwritten constitution, the doctrine of  supremacy. I’m not sure the authors of this report really answer this question.

The difference between deploying a Henry VIII clause on accession and the position post Brexit is that judgements as to which parts of EU law to retain and which to remove would not in substance be scrutinised by Parliament.

One might quibble that precisely the same lack of parliamentary scrutiny was the effect of the original Act, which may be one reason why the referendum produced the result it did.

Postscript

In their post on the subject, the UK Constitutional Law Association considers the fate of the ECA after the withdrawal process is completed. It would not have to be formally repealed, they say, because at such a time it would effectively be a “dead letter”.

Some might argue that there would be no … conflict [between the ECA and the Article 50 withdrawal] since the 1972 Act does not regulate the process of withdrawal, and because the executive act of withdrawal leaves the statute formally untouched. However this would be a very formalistic analysis in circumstances where the undoubted intention of the UK in triggering the Article 50 process would be to effect the opposite of that which the 1972 Act is designed to achieve.

For this reason, they contend, Article 50 cannot be an exercise of the prerogative powers alone; parliamentary approval via an enabling statute would be needed before the Article 50 withdrawal process can be triggered. The long thread of (mostly) erudite commentary on this post includes this observation:

A governmental decision on Article 50, notified to the Council, would be an intra vires exercise of prerogative powers. ..clearly within the competence of HM government.

…Notifiying a decision under Article 50 doesn’t itself affect any statute, or the common law, or the Scotland Act… or devolution or anything else relating to the rights of the people of the UK. Nor even does ceasing to be a Member State up to two years afterwards.

The commentator, Greg Callus, argues that the ECA would have to be repealed by an Act of Parliament; “there is no question of the ECA being repealed by another method. But that doesn’t mean that an Act of Parliament is required to deliver the Article 50 letter”.

As for the European Communities Act 1972, the government would clearly have to amend the Act so that sections 2 and 3 ceased to give effect to directly applicable EU law adopted after the date of UK withdrawal. As for the pre-withdrawal EU Directives and Regulations, and domestic law implementing them, it is a matter for the government and parliament to decide which to jettison, and which to keep.

There’s also a practical point. Imagine the Article 50 letter was delivered to the Council tomorrow, with no Act of Parliament. What prospect would you give a judicial review holding that it was ultra vires, because (even though approved by a referendum, and the largest vote for a single option on a ballot paper in our history) Parliament hadn’t approved it? I’d say 20% at best. Judges are not as anti-democratic as some at Policy Exchange would have us believe …

Other commentators agree, in somewhat stronger terms.