Brexit

European Union Act 2011:

s2-4, 6 - Sets a requirement for a referendum to be held before a government can agree to change in EU treaties that confer more power on the EU.

s7 - Sets a requirement for an Act of Parliament to be enacted before the UK can agree to a number of specified decisions.

s18 – Political assertion of parliamentary sovereignty with a UK centric interpretation of the UK’s membership in the EU.

‘Directly applicable or directly effective EU law … falls to be recognised and available in law in the United Kingdom only by virtue of that Act [ECA 1972] or where it is required to be recognised and available in law by virtue of any other Act.’

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The Referendum:

General Use of Referendums in the UK:

Referendums are generally scarce in the British political sphere. This is because a referendum ultimately undermines the sovereignty of Parliament by giving authority directly to the people.

When ‘the referendum really comes, the sovereign Parliament must go’. [1]

Referendums are, however, quite common in former British colonies and overseas territories transitioning to independence. They are also a feature commonly seen in devolution models.

The use of referendums has increased over the years. [2] However, only two UK wide referendums have been held (to date).

In Miller (No 1), the Supreme Court held that the result of a referendum is only advisory, unless very clear language is used in the legislation to say otherwise.

Advantages of Referendums:

• Direct democracy – using the voter to settle complex issues.

• Safeguards against controversial policies.

Disadvantages of Referendums:

• Creates division.

• Opposite of democracy – we vote in representatives, not on the law directly.

• Political elites set the question and interpret the result. This empowers the government, not the people.

Brexit Referendum:

Held on 23rd June 2016, the UK voted on its membership within the EU.

Prior to the referendum, Nicola Sturgeon called for a ‘double majority’ which would require a majority in each of the devolved nations for the UK to leave the EU. The House of Commons rejected this idea.

Results:

Question: ‘Should the UK remain a member of the EU or leave the EU?’

UK: 52/48 for Leave

Scotland: 62/38 for Remain

Wales: 52.5/47.5 for Leave

N Ireland: 56/44 for Remain

‘Euro-scepticism was an English rather than British phenomenon’. [3]

Results surprising as in the 1975 referendum, the Scottish majority for remaining in the EEC was significantly lower than the UK-wide majority. By 2016, the results had flipped, with Scotland producing the strongest remain vote within the UK.

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Withdrawal Process:

Notification of Intention to Withdraw (Article 50 [4]):

Art 50(1) - Article 50 provisions to allow any member state to withdraw from the EU in accordance with its own constitutional requirements.

Art 50(2) - The withdrawing member state shall notify the EU so that negotiations and agreements can commence between the member state and the EU Council.

Art 50(3) - EU treaties shall cease to apply to the withdrawing member state from the date that a withdrawal agreement is entered into, or 2 years after the notification to the EU if no agreement is reached.

In Miller (No 1), it was questioned whether the royal prerogative of entering treaties extended to include withdrawing from treaties to give notice under article 50.

The Supreme court, by a majority of 8:3, concluded that it could withdraw from the treaty but could not alter domestic law with prerogative powers, so an Act of Parliament was required to invoke Article 50. The 1972 Act did not explicitly give ministers the power to do this without Parliament’s approval.

Lord Reed dissented, saying he could not see how invoking Article 50 would directly affect domestic law, but initiate negotiations. Giving notification does not in itself after EU rights or the effect given to them in domestic law, nor does it prevent Parliament to legislate before the treaties cease to have effect. Also argues that the 1972 act impliedly gives ministers the power to notify.

Devolved Governments Side-lined:

Article 50 was notified to the EU without consultation or consent of the devolved legislatures.

‘Devolved administrations should be fully engaged’ in the Brexit process. [5]

‘While the devolved bodies exercised voice, its impact at Westminster was muted’. [6]

‘Brexit has had a negative effect on the relationship between the centre and the devolved regions, in particular Scotland and Wales’. [7]

In Miller (No 1), the UK Supreme Court decided that the Sewel Convention, though given statutory recognition in the Scotland Act 2016, was a statement of political intent rather than a legal obligation to consult the devolved legislatures. Therefore, the government is not required to get consent of devolved nations before triggering Article 50.

The decision was ‘not surprising but at the same time not inevitable’; ‘structural position of the Supreme Court, as a UK institution which essentially replicates the balance of power in the territorial constitution, may undermine its ability to construct an account of the constitution which acknowledges its plural and contested nature ‘. [8]

EU (Notification of Withdrawal) Act 2017:

The act enabled the Prime Minister to notify the EU of the UK’s intention to withdraw under article 50, as recommend by the Supreme Court in Miller (No 1).

European Union (Withdrawal) Act 2018:

s1 – European Communities Act 1972 repealed.

s2-4 – Providing legal continuity for a functioning statute book when the UK leaves the EU.

‘Retained EU Law’:

s2(1) – EU-derived law on exit day will be retained as UK domestic law after exit day (EU directives).

s3 – Direct EU law on exit day will become UK domestic law after exit day (EU regulations).

s4 – Directly effective EU law on exit day will become UK domestic law after exit day (Treaty provisions).

Estimated up to 25,000 EU measures were domesticated. [9]

Retained law is categorised into ‘principal’ and ‘minor’, which is used to determine Parliament’s ability to amend the retained EU law.

Supremacy:

s5(1) – Supremacy of EU law does not apply to any EU law made on or after exit day.

s5(2) – Supremacy of EU law continues to apply on or after exit day between pre-exit day retained EU legislation and domestic law.

Delegated Legislation Powers:

s8 - Powers to government ministers to retain, amend or repeal retained EU rules as domestic law to ‘prevent, remedy or mitigate’ any ‘failure of retained EU law to operate effectively’.

Minister has to make a written statement to the House of Commons.

s8(5) – Henry VIII clause that regulations created under s8(1) are Acts of Parliament (subject to exceptions in s8(7).

s8(7) – regulations under s8(1) cannot –

s8(7)(a) – raise taxes

s8(7)(b) – make retrospective provisions

s8(7)(c) – create new offences

s8(7)(f,g) – amend or repeal the Human Rights Act or any devolution statute

‘an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw’. [10]

Scrutiny:

Schedule 7 – the default position for regulations made under s8 is the negative resolution procedure.

After the minister has made their statement, sifting committees in the House of Commons and House of Lords can make a recommendation as to the correct procedure (affirmative resolution procedure). If a time period lapses, the regulation passes without scrutiny.

‘following the UK’s departure from the EU, the Act will, for a considerable time to come, form the constitutional basis of a significant element of domestic law’. [11]

‘The result is that while the Act equips Parliament to exercise a degree of influence in this area, the non-binding nature of sifting committees’ recommendations denies Parliament anything approaching true control in this regard.’ [12]

Devolved Nations:

Scottish and Welsh Reactions to EU (Withdrawal) Act:

Both nations objected to the bill and took the joint position that powers should be repatriated in accordance with established patterns of reserved competence, and that common frameworks should be established via consensus and collaboration.

The amended bill returned EU powers with devolved competence to the devolved nations, but subject to a UK-wide regime of redistributing powers.

Wales dropped their objections, but the Scottish Parliament still did not consent. The EU (Withdrawal) Act was still enacted, despite the Sewel Convention.

In the Scottish Continuity Bill case, the Bill gives continuity of the effect of EU law in devolved nations post-Brexit. The UK government challenged that the Bill encroached on reserved matters.

The UK Supreme Court decide that the Bill is not entirely outside of the competency of the Scottish Parliament, but some provisions are outside of its powers.

Before the judgement, the UK government added the EU (Withdrawal) Act to the list of provisions that are protected from modification by the Scottish Parliament. As a result, many provisions of the bill now became outside of the remit of the Scottish Parliament’s powers.

This reaffirms Westminster’s sovereignty. [13] Even if the UK government lost, the UK parliament could merely legislate contrary to the ruling.

Northern Ireland:

’It may already be too late for a re-design or even a re-tweaking of the Belfast Agreement. Brexit may be its death-knell.’ [14]

NI Protocol in the Withdrawal Agreement:

The Northern Ireland Protocol pushes EU-UK checks to the Irish Sea Boarder, avoiding checkpoints along the Irish land border. N Ireland continues to follow the EU’s customs and ‘single market’ rules, unlike the rest of the UK, so there are checks between goods transported between Ireland/N Ireland and the rest of the UK.

European Union (Withdrawal Agreement) Act 2020:

The Act implements the withdrawal agreement between the UK and EU that was reached in October 2019 to ensure EU rules are still applied as before until the end of the implementation period.

European Union (Future Relationship) Act 2020:

Implements the agreements between UK and EU. [15]

Other Brexit Legislation:

Sector-specific primary legislation related to EU law has been subsequently passed. [16]

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References:

[1] Charles McIlwain (1910) [2] See referendums on an alternative voting system (2011); Scottish Independence (2014) and Brexit (2016) [3] Ford and Goodwin, ‘Understanding UKIP: Identity, Social Change and the Left Behind’ (2014) Vol 85, Iss 3 The Political Quarterly 277-284; 31; Henderson et al., ‘England, Englishness and Brexit’ (2016) Vol 87, Iss 2 The Political Quarterly 187-199; Wyn Jones et al., ‘England and its two Unions’ (2013) Institute for Public Policy Research 17–19 [4] Treaty on European Union Art 50 [5] Theresa May, Lancaster House Speech (17 January 2017) [6] Paul Craig, ‘Chapter 4’ in Jeffrey Jowell and Colm O’Cinneide (eds), The Changing Constitution (9th edn, Oxford University Press) [7] Paul Craig, ‘Chapter 4’ in Jeffrey Jowell and Colm O’Cinneide (eds), The Changing Constitution (9th edn, Oxford University Press) 114 [8] McHarg and Mitchell, ‘Brexit and Scotland’ (2017) 19 British Journal of Politics and International Relations 512 [9] Vaughne Miller, ‘Legislating for Brexit: directly applicable EU law’, House of Commons Library, Briefing Paper, No. 7863 (12 January 2017) 4 [10] HL Constitution Committee [11] Mark Elliott and Stephen Tierney, ‘Political Pragmatism and Constitutional Principle: The European Union (Withdrawal) Act 2018’ (2018) Forthcoming in Public Law, University of Cambridge Faculty of Law Research Paper No. 58/2018 [12] Mark Elliott and Stephen Tierney, ‘Political Pragmatism and Constitutional Principle: The European Union (Withdrawal) Act 2018’ (2018) Forthcoming in Public Law, University of Cambridge Faculty of Law Research Paper No. 58/2018 [13] McHarg and Mitchell, ‘Brexit and Scotland’ (2017) 19 British Journal of Politics and International Relations 512 [14] Dickson in Jeffrey Jowell and Colm O’Cinneide (eds), The Changing Constitution (9th edn, Oxford University Press) 267 [15] See Trade and Cooperation Agreement (TCA); Agreement on Nuclear Cooperation; Agreement on Security Procedures for Exchanging and Protecting Classified Information [16] See Taxation (Cross-Boarder Trade) Act 2018; Sanctions and Money-Laundering Act 2018 etc.

Cases Mentioned:

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

Re UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill [2018] UKSC 64

R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41