Leaving the EU Brexit - Summary PDF

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Leaving the EU: BrexitLeaving the EU:  European Communiies Act 1972: o The ECA 1972 was the act that brought the UK into the EU and caused EU law to be implemented into naional law: o European Communiies Act 1972, secion 2: General implementaion of Treaies:  (1) All such rights, powers, liabiliies...

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Leaving the EU: Brexit Leaving the EU:  European Communities Act 1972: o The ECA 1972 was the act that brought the UK into the EU and caused EU law to be implemented into national law: o European Communities Act 1972, section 2: General implementation of Treaties:  (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties... are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly  [The reference to ‘without further enactment’ is crucial, as this means without Parliament.] o This direct imposition of EU provisions into UK law was most obvious in the case of Regulations which were incorporated into the legal system of the UK without any intervention by the domestic legislature. o Reasons for leaving the EU: o For many, it was the sense of loss of sovereignty, together with the jurisdiction of the ECJ (European Court of Justice) which caused their resistance to the EU. o Another factor in this argument was the expansion of the EU to include more states which would inevitably lead to the greater use of qualfied majority voting (QMV) to decide important issues and policies within the EU. To many, this represneted an unacceptable restriction on the power of the UK government and Parliament. o For others, the key complaint was the level of immigration into the UK. This included nationals of other EU states who were able to enter the UK under the freedom of movement principles as well as refugees from non-EU states. o For others, the perceived restrictions imposed by the European Court of Human Rights (particularly in relation to the deportation of foreign criminal were the principle cause for concern.  The referendum: o The vote on the membership of the EU was held on June 2016 under the provisions of the European Referendum Act 2015: o European Referendum Act 2015, Section 1:  (1) A referendum is to be held on whether the United Kingdom should remain a member of the European Union.  (2) The secretary of State must, by regulations, appoint the day on which the referendum is to be held…  (4) The question that is to appear on the ballot paper is 'Should the United Kingdom remain a member of the European Union or leave the European Union? o This was not the first vote to be held, and a vote was held in 1975, where people voted to remain. o In this vote, the result was 51.9% of the people voting to leave, and 48.1% voting to remain, with the turnout of 72.2%  Why did the referendum occur?

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The conservative party, had many 'Eurosceptics' people who were sceptical about the EU. For this reason, all Conservative leaders have had to deal with calls for a referendum from within their own party but, traditionally, have managed to ignore such requests as all of the other political parties were staunchly in favour of EU membership. However, with the rise of the UK Independence Party (UKIP), Conservative voters who wanted an EU referendum suddenly had a party to vote for which promised to deliver a referendum if elected. The fact that UKIP were highly unlikely to secure enough votes to deliver on this promise did not matter. The danger for the Conservatives was that a UKIP candidate standing in a constituency could split the ‘Anti-Labour’ vote, thereby allowing Labour to win. The answer for the Conservatives was to promise a referendum if they won the 2015 general election. The calculation was that Eurosceptic voters who might have defected to UKIP would now vote Conservative on the basis that (unlike UKIP) it was a party which could actually win the election and so deliver on the referendum promise. Remember that from 2010 to 2015 the Conservatives had been part of a coalition government with the Liberal Democrats and, at the time, the most likely outcome of the 2015 election was thought to be another Conservative/ Liberal Democrat coalition. Many suspected that this would have allowed the Conservatives to abandon the referendum pledge as part of the coalition negotiations with the staunchly pro-European Liberal Democrats (much as the Liberal Democrats had done with their election pledge to resist increases in student tuition fees in 2010). Ironically, the problem for the Conservatives came when they unexpectedly won the 2015 election and so were compelled to deliver the promised EU referendum.

In order to leave the EU, the country must adhere to Article 50 of the Lisbon Treaty: o 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements: Can’t be triggered without act of parliament. o 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. o 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. o 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State

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shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union. 5. If a State which has withdrawn from the Union asks to re-join, its request shall be subject to the procedure referred to in Article 49.

Constitutional Issues raised because of Brexit: o The government argued that it could begin the process of withdrawal by triggering article 50 using prerogative powers, but others believed that only Parliament had the constitutional legitimacy to take such momentous steps. o So, a case was brought about the government: Can the government use the crown’s prerogative power to give notice under Art 50 TEU? o R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (SC): o Facts: The Supreme Court was required to consider the steps required as a matter of UK domestic law before the process of leaving the European Union could be initiated. In particular, whether a formal notice of withdrawal can lawfully be given by ministers without prior legislation passed in both Houses of Parliament and assented to by the Queen. o The essence of the Government’s case was that the conduct of foreign relations — including entry into and withdrawal from treaties — is a matter that falls within the prerogative. Withdrawal from the EU treaties was therefore something that could be initiated by the Government using its prerogative authority. Moreover, said the Government, doing so would not cut across what Parliament had done when it enacted the 1972 Act, because Parliament had only ever intended for EU law, and rights granted by it, to be effective in the UK for as long as the UK remained a Member State. o Held. (8-3 Majority) The Supreme Court upheld the decision of the Divisional Court that the government did not have power under the royal prerogative to give notice under Article 50 for the UK to withdraw from the EU. The authority of primary legislation was required before that course could be taken. o Lord Neuberger: ‘the 1972 Act required ministers not to commit the United Kingdom to any new arrangement, whether it increased or decreased the potential volume and extent of EU law, without first being approved by Parliament... It would scarcely be compatible with those provisions if, in reliance on prerogative powers, ministers could unilaterally withdraw from the EU Treaties, thereby reducing the volume and extent of EU law which takes effect domestically to nil without the need for parliamentary approval.’ o Since EU law had become part of — indeed, a source of — UK law thanks to the 1972 Act, the EU law has status, so, getting rid of it is not a matter of foreign relations, meaning that its removal cannot be accomplished via the foreign relations prerogative. o When Parliament passed the European Communities Act in 1972, it endorsed and gave effect to the UK’s membership of the EU: having intended that the UK should be a member of the EU, Parliament had not intended the Government to be able unilaterally to take the UK out of the EU. The fact that a referendum had taken place and secured a majority in favour of Brexit did not affect this legal analysis: the significance of the referendum, said the Court, was political.

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Of the three judges who dissented on the question of whether legislation is needed, Lord Reed gave the fullest judgment. He argued that EU law is not a source of UK law, but is rather a distinct body of law, and that the 1972 Act merely gives effect to EU law in the UK to the extent that the UK’s treaty obligations require. If, said Lord Reed, the UK leaves the EU and therefore no longer has any relevant treaty obligations, that will not cut across the Act. Parliament had not intended that people in the UK should have or retain any particular EU rights, merely that UK and EU law should be aligned for the duration of membership.

Broader constitutional implications: It is doubtless Miller is a highly significant decision, both in terms of legal doctrine and its political ramifications. However, its wider constitutional consequences might turn out to be more contained than had perhaps been anticipated. Prerogative power: (more generally) o Miller raises — without clearly answering — questions about the extent to which prerogative power may be constrained by other treaty-based arrangements. o However, it seems likely that the shadow cast by Miller over the prerogative will be relatively modest. o That follows in large part because so much of the majority’s reasoning appears to rest upon the particularities of EU law and the way in which it has been accommodated at the domestic level (in particular by becoming an ‘independent source’ of domestic law). o It would be rash to suggest that Miller forecloses the possibility of other treaty-based arrangements being susceptible to a similar analysis, but Miller certainly does not drive a coach and horses through the foreign relations prerogative. Parliamentary sovereignty: o Nor — on the face of it, at least — does the judgment in Miller break significant ground in terms of parliamentary sovereignty. o Indeed, the majority is at pains to emphasise the centrality of that principle, to demonstrate that its judgment operates in the service of the sovereignty of Parliament, and to articulate the implications of EU membership in a manner that is compatible with — rather than, as Wade argued, an existential threat to — it. o Judicial analysis at apex court level has been scant over the last four decades as far as the implications of EU membership for parliamentary sovereignty are concerned, Factortame itself, perhaps surprisingly, having cast relatively little light on this matter. o The possibility arose of the Supreme Court in Miller, given the nature of the issues raised by the case, offering a more thoroughgoing, and perhaps even novel, analysis of these issues. However, the Court chose, perhaps wisely, to be economical in this area. o Sovereignty, we are told by the majority, is ‘a fundamental principle of the UK constitution’, and the ‘unprecedented state of affairs’ wrought by EU membership — having itself been brought about by Parliament — ‘will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute’.

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Thus the majority (like Lord Reed) rejects, any suggestion that the rule of recognition has been altered by EU membership. EU law, it follows, ‘can only enjoy a status in domestic law which that principle allows’. o This analysis is consistent with that advanced by Lords Mance and Reed in the HS2 case. HS2 arguably broke new ground so far as our understanding of how the EU primary doctrine and the sovereignty of Parliament can co-exist. But Miller does not take us substantially further in that regard. o The only real novelty is the majority’s view that Parliament is capable of legislating so as to institute a source of UK law that is independent of the legislation enacted to achieve that outcome — a conclusion that arguably presses even the ample notion of legislative supremacy beyond its logical boundaries. Devolution and the territorial constitution o If — as we now know it is — legislation is needed to trigger, or to authorise the triggering of, Article 50, then the question arises:  (1) whether such legislation falls within the Sewel Convention. If it does, then two further questions arise:  (2) whether the Convention is justiciable by the Court, and  (3) whether the Convention has been rendered justiciable by being transformed into a legal requirement by operation of the Scotland Act 2016. The Court answers questions (2) and (3) in the negative, and therefore declines to answer question (1). o According to the majority, judges ‘are neither the parents nor the guardians of political conventions; they are merely observers’: while they can ‘recognise the operation of a political convention in the context of deciding a legal question’, they cannot ‘give legal rulings on its operation or scope, because those matters are determined within the political world’. The thrust of the Supreme Court’s judgment in this area is as plain as it is broadly orthodox — that conventions are creatures of the political, not the legal, realm. o This, however, leaves the question of whether the Scotland Act 2016 has changed the status of the Sewel Convention. o It inserts a new section 28(8) into the Scotland Act 1998, glossing the latter’s stipulation that it ‘does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’ with the proviso that it is ‘recognised’ that the UK Parliament ‘will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’. (The Wales Bill, currently before Parliament, makes similar provision in respect of the Welsh Assembly.) o The Supreme Court concluded that this did not ‘convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts’, and that ‘the purpose of the legislative recognition of the convention was to entrench it as a convention’. o It is not entirely clear what, in this context, ‘entrench’ means, but it presumably means that the convention is, by legislation, politically entrenched in the sense that the legislation underlines and adds political weight to the convention, without going so far as to transform it into something other than a convention. Thus, while the majority did not doubt the ‘fundamental role’ of the Sewel Convention, ‘the policing of

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its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law’. This aspect of the case had the capacity to be the most constitutionally explosive. If (improbably) the Court had concluded that the law required devolved consent to legislation triggering Brexit, the political and constitutional implications would have been profound. However, although the Supreme Court declined to reach an immediately earth-shattering conclusion on this point, the conclusion it did reach still has the capacity to substantially destabilise the territorial constitution. That is so not least because it exposes section 28(8) of the Scotland Act — inserted in the aftermath of the Scottish referendum — for the smoke-and-mirrors exercise that it always was. The Supreme Court has now confirmed that statutory ‘recognition’ of a convention does not deprive it of its essential character as a convention. But in clarifying that point, the Court reveals the statutory provision to be nothing more than a political token in legislative garb. That conclusion will doubtless prove unpalatable to many. But nor does it remove the whole of the sting from arguments based on the Sewel Convention — for while the Court decided the Convention was not legally enforceable, it did not decide that the Convention was inapplicable. Indeed, the First Minister of Scotland has already signalled that, in her view, the Convention does apply, that the UK Government is thus politically obliged to consult devolved institutions, and that the Scottish Government will therefore ‘bring forward a Legislative Consent Motion and ensure that the Scottish Parliament has the opportunity to vote on whether or not it consents to the triggering of Article 50’. If, as is likely, the Scottish Parliament withholds consent, Miller ensures that that will not have the effect of legally blocking Brexit, but it will doubtless complicate the politics. For that reason, among others, while Miller is the last word on whether Article 50 can be triggered without UK legislation, it is far from the last word on what lies ahead, at least politically and constitutionally....