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In Memory of the UK’s Membership of the European Union: 1973 - ?

In light of the UK’s vote to leave the European Union, this article by Saif Gilani (2nd year LLB) analyses the timeframe needed for the UK to withdraw from the EU, considering the key legal and political obstacles which must first be overcome.

“In Memory of the UK’s Membership of the European Union: 1973 - ?”

Article 50(3) of the Treaty on European Union (TEU) states that “the legal consequence of a withdrawal from the EU is the end of the application of the Treaties and the Protocols thereto in the state concerned from that point on”. As such, following the Brexit vote on June 23rd 2016, many media outlets have prematurely earmarked April 1st 2019 as the day when the UK will free itself from the influence of the EU. Nevertheless, a plethora of constitutional issues have surfaced which could have the effect of prolonging this process. By considering the most pertinent of legal and political obstacles to Brexit, existing at a domestic, devolved and supranational level, this essay will assess whether a longer timeframe is needed for the UK to duly leave the EU. In such a context, one must consider the most effective way for the UK to trigger its withdrawal. Thereafter, the negotiation process with regards to the divorce between the UK and EU will be analysed.

A unilateral withdrawal from the EU, by repealing the European Communities Act 1972, which currently legitimises the UK’s membership, would be the quickest route to termination. This is possible by virtue of the principle of Parliamentary sovereignty: as stated by Dicey, the UK Parliament can make or unmake any law it deems necessary.[1] Furthermore, it has been stated by Frank Vibert and Gunnar Beck that repeal of the 1972 Act can be justified under international law, specifically Article 65(2) of the Vienna Convention on the Law of Treaties of the UN (VCLT): “unilateral withdrawal from an international treaty may occur where there has been a fundamental change in circumstances, typically requiring just a three month withdrawal notice”.[2] Therefore, Vibert and Beck claim that the vote to leave the EU satisfies the “fundamental change” requirement. However, this conclusion is misplaced. The term “fundamental change” is applicable only to exceptional cases.[3] Since other, less severe, withdrawal mechanisms exist, surely Brexit cannot be considered as “exceptional.” Notwithstanding Parliamentary sovereignty upon which Parliament may ignore such legal basis, unilateral withdrawal would be calamitous, for leaving on such hostile terms would prevent the UK from negotiating a transition agreement with the EU. Furthermore, it may jeopardise any future trade negotiations. In the absence of such agreements, EU law which has direct effect would immediately lapse, creating a temporary legal vacuum.[4] Therefore, while this would be the quickest route, it would not be in the best interests of the UK.

Instead, Article 50 of the TEU details the preferred route for the UK to withdraw. As opposed to the Vienna Treaty, reliance upon Article 50 involves procedural, rather than substantive, requirements. Upon triggering Article 50, the Member State has an obligation to notify the EU of its intention to withdraw and also compels the EU to take steps to negotiate a withdrawal agreement. With the opportunity to negotiate with the EU, Article 50 can be considered a more amicable withdrawal mechanism. As a result, it is in the UK’s interest to follow this route, despite the fact that it will take substantially longer than a unilateral withdrawal. Therefore, analysing the timeline for Brexit warrants a deconstruction of the Article 50 provisions.

The first point to consider is that a decision to withdraw must accord with the UK’s “own constitutional requirements”.[5] Considering that the result of the Brexit referendum is only advisory, a formal decision to withdraw from the EU has not yet been taken.[6] Nevertheless, there is a political obligation to give effect to the electorate’s decision. Consequently, recent concern has not been whether the decision must be taken, but whether the onus lies with Parliament or the Executive to initiate such proceedings. Indeed, this was the subject of the Supreme Court case, R (Miller) v Secretary of State for Exiting the European Union.[7]

In this case, the Government asserted that, in order to follow the UK’s constitutional requirements, the Executive must take the formal decision to withdraw. Thus, it was argued that the Royal Prerogative must be used as the vehicle for initiating the withdrawal proceedings.[8] This argument was based on the fact that it is the Executive’s prerogative power to provide for the entry into and withdrawal from international treaties.[9] The opposing (and successful) case centred upon the notion that the 1972 Act confers EU law rights upon individuals.[10] Since prerogative powers cannot be used when the effect is to remove rights, it was argued that Parliament must take the decision to leave the EU.

Is the judgement in favour of the claimant correct? Of clear contention is the issue of Parliament’s intention when enacting the 1972 Act and whether exercise of the Royal Prerogative would contradict such intention. On one hand, the use of the prerogative to withdraw from the Treaty would have the effect of ending the UK’s membership. On the other hand, it was accepted by the court that the 1972 Act is intended to enable membership of the EU. Therefore, it could be argued that the exercise of the prerogative power would frustrate the will of Parliament, as was externalised through the provisions of the 1972 Act. This suggests a conflict between the purposes of these sources of law, where using the prerogative would prevent the effective operation of the 1972 Act. In such instances of a conflict, it is a well-established rule that the Royal Prerogative is available only in cases not covered by statute.[11] Therefore, in order to preserve Parliamentary sovereignty, ensuring that Parliament’s intention is not overridden by the Executive, it was successfully argued that withdrawal from the EU requires an Act of Parliament to repeal the 1972 Act.[12] This suggests that Parliament must trigger the decision to withdraw from the EU.

It can, however, be said that this misinterprets Parliament’s intention in enacting the 1972 Act. As stated in the dissenting judgement by Lord Reed, there is actually no conflict between the prerogative power and Parliament’s intention. Lord Reed stated that the Act “simply creates a scheme under which the effect given to EU law in domestic law reflects the UK’s international obligations under the Treaties, whatever they may be”.[13] In other words, interpreting the Act literally, Parliament’s intention in enacting the legislation was to ensure that “from time to time” the UK could discharge its obligations as afforded by the relevant EU Treaties.[14] As a result, using the prerogative power to withdraw from the EU would not contradict this purpose as there would simply be no relevant EU Treaty by which the UK must abide. As per the wording of the statute, the absence of any applicable Treaty means that no obligations exist which the UK must discharge. This shows how there is in fact no conflict between the prerogative power and Parliamentary will: withdrawal from the EU, as a result of the prerogative, is separate to Parliament’s intention of conferring EU rights to individuals so long as the UK is a member of the EU. As such, this provides a rationale to justify the use of the prerogative power to trigger Article 50.

What about the contention by the Supreme Court that EU law has become a direct source of UK law, so utilising a prerogative that relates to international sources of law is not even applicable? With regards to this conclusion, Lord Reed provides an interesting dissent, stating that EU law is actually a distinct source of law, applicable to the UK as a separate body of law by virtue of the 1972 Act. Therefore, it maintains its status as a foreign treaty for which the prerogative is still applicable.

Both judgements are contingent upon the respective approach taken as regards to Parliament’s intention over the 1972 Act. Since the Supreme Court rejected the appeal, the issue is concluded as a matter of law. However, recent circumstances suggest that a basic Bill will be put forward and a three-line whip will be imposed on MPs to force them to pass the Bill, with few amendments.[15] If, indeed, the Bill is subject to little Parliamentary scrutiny, then the Supreme Court’s judgement, although legally required, will be considered unnecessarily cumbersome and time-consuming. There is strong political force to suggest that this should not be the case. The majority in the Supreme Court used the following analogy in their judgement, which can also be used to justify political intervention: “To adapt Lord Pannick’s metaphor, the bullet will have left the gun before Parliament has accorded the necessary leave for the trigger to be pulled.”[16] In the UK’s parliamentary democracy, it would be undemocratic for the “trigger” to be pulled without any meaningful Parliamentary influence on such a monumental constitutional issue. As a result, it is in the interest of the country to use such Parliamentary time to agree a mandate for the Government’s negotiations within the EU.[17] While potentially time-consuming, it will ensure that the interests of the whole country are represented.

Similarly, much debate has been made as to whether the devolved legislatures, particularly the Scottish Parliament, ought to have an influence on proceedings.[18] While s.29(7) of the Scotland Act 1998 recognised the retention of the UK Parliament’s right to legislate with regards to devolved matters, it was envisaged in the Devolution Guidance Note 10 that consent (in the form of a Legislative Consent Motion) ought to be required by the Scottish Parliament in such circumstances concerning legislative competence (referred to as the “Sewel Convention”). Indeed, leaving the EU would likely require an amendment of s.29(2)(d) of the Scotland Act 1998.[19]As a matter of legal necessity, does the Westminster require the approval by Holyrood before triggering Article 50?

This was the second point of contention in Miller, with the Supreme Court exploring the issue in two stages: having regard to s.2 of the Scotland Act 2016, is the Convention justiciable? If so, does the legislation, indeed, fall within the Sewel Convention? It was submitted by the Lord Advocate that the wording of “constitutional requirements” encompasses laws and also conventions, thus warranting the consent of the Scottish Parliament. However, the judges unanimously asserted that the Convention is not justiciable, so the second question was not explored. The lack of justiciability was concluded by making reference to the wording of s.2, stating that “the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.” The lack of authority in the phrase “not normally,” suggests that s.2 puts Sewel into statute as a convention,[20] a controversial point which has since been afforded judicial recognition in Miller. Concluding that Sewel remains a convention rather than a legal provision, the judges affirmed the non-justiciability with regards to conventions. This confirms the notion that while the courts may recognise the operation of conventions in deciding legal questions, they cannot enforce them as a matter of law. Instead, this is a matter for Parliament.

However, while the courts cannot enforce the Convention, there still exists strong normative reasons to gain consent by the devolved bodies, particularly Holyrood. So far, the operation of Sewel can be considered a success. For example, a Legislative Consent motion was deemed necessary prior to the enactment of the recent Scotland Act 2016, a statute of significant constitutional concern. The issue, therefore, is whether the circumstances surrounding Brexit warrant a deviation from such a long-standing political practice that recognises the need to afford a degree of self-governance to the devolved institution. Theresa May is of such a view, stating that “Because we voted in the referendum as one United Kingdom, we will negotiate as one United Kingdom, and we will leave the European Union as one United Kingdom”.[21] This reasoning is based on the premise that derogation from Sewel will serve to protect harmonisation within the UK. Nevertheless, following on from the proposal mentioned with regards to the UK Parliament, it is desirable that Holyrood also gets a vote on triggering Article 50. In doing so, MSPs will have the opportunity to have legislative input and raise possible concerns about the impact of Brexit on devolved issues (for example, education). But again, this is entirely contingent upon a detailed Bill being put forward by the Government.

Therefore, from a legal perspective, one need not expect any further delays in this regard to triggering Article 50. However, to ensure an effective Brexit, extensive and effective consultation should be sought by the devolved bodies with regards to the negotiation process, irrespective of any delays this may cause. This will ensure that the views of the UK, at a domestic and a devolved level, will be duly considered. 

 

However, it has been said that the “Supreme Court’s judgment, far from being the beginning of the end, is — at most — merely the end of the beginning.”[22] Having established the most effective method of initiating proceedings, an analysis of the timeline of Brexit would be incomplete without examining further difficulties which could arise after triggering Article 50.

While consultation with the devolved bodies should be sought, it is not a procedural requirement as a matter of law. Instead, the first requirement is that once the UK is satisfied that its constitutional pre-requisites for triggering Article 50 have been met, Article 50 states that notification must be made to the European Council of its intention to withdraw. Thereafter, in the absence of the UK, the European Council will agree negotiation guidelines so as to provide itself with a clear mandate. Once agreed, the European Commission will negotiate on behalf of the EU with the UK, seeking to come to an agreement on its divorce. Lastly, the European Council must vote by a super-qualified majority (72% of participating states) plus a simple majority by the European Parliament and the Council of the European Union. This presents the possibility of a Member State vetoing a proposed deal (but not the withdrawal itself). While the negotiation process can be extended beyond the two year deadline, subject to a unanimous agreement by the EU, this is by no means a guarantee. This suggests that the UK may be without a transition agreement in place by the end of negotiations. Evidently, contrary to that of triggering Article 50, the procedural expectations are relatively clear - however, they are extensive.

Such proceedings may in fact serve as the largest obstacle to the UK Government. Indeed, the easier the negotiations, the quicker the withdrawal process. However, the primitive nature of these provisions, as the UK is the first member state to consider triggering article 50, has created uncertainty. This is linked to the difficulty in reconciling the interests of the UK with that of the EU. On the one hand, it is in the UK’s economic interest to maintain free movement of goods, with a report stating that it increases GDP by an additional 4 per cent.[23] On the other hand, comments from the Maltese President, Joseph Musket, have made it clear that the UK will not be permitted to cherry-pick aspects of EU membership, such as refusal to comply with the principle of the free movement of persons.[24] Indeed, this reflects the difficulties which will arise during the discussion process. Therefore, while the negotiation process presents few legal obstacles to proceedings, timetabling the UK’s formal exit is made difficult by virtue of the politicised nature of negotiations. The prospect of a political stalemate will most probably delay the UK’s withdrawal.

Thus, it is not surprising that experts have estimated a ten year timescale for the UK to eventually free itself from the influence of the EU and assert itself as a fully independent nation. Compliance with the legal requirements is not enough; to make Brexit a success, in spite of the extensive delays that may be experienced, much emphasis should be put on overcoming the political obstacles to Brexit. With regards to the issues arising in the UK Parliament, “Vote Leave, take back control[25] was the slogan used to persuade the UK public to vote for Brexit. It is thus ironic that even after a vote which was supposed to return power to the UK Parliament, questions still arise as to the sovereignty of the UK’s legislature. If Parliamentary sovereignty is to be politically respected, then MPs should get a meaningful say on the negotiations between the UK and the EU. Should Theresa May secure a simple majority in the UK Parliament and devolved bodies, she will then need to persuade 72% of participating EU states to accept her draft deal, a very bureaucratic exercise.[26] With all the inherent complexities, we can expect the Brexit process to run beyond April 1st 2019, most probably even into the next Parliamentary session.

 

 

 

 

 

[1] A.V.Dicey, The Law of the Constitution, 1st edn. (London, 1885), pp.39-40

[3] Case concerning the Gabčíkovo Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7 para 104

[4] Article 288 Treaty of the Function of the EU

[5] Art.50(1) TEU

[8] These powers encompass the “residue of powers which remain vested in the Crown”. (Miller, at para. 47)

[9] Miller, at para. 55

[10] s.2(1) 1972 Act – i.e. the rights of UK citizens to benefit from employment protection such as the Working Time Directive

[12] Miller, at para. 43

[13] Miller, at para. 185

[14] European Communities Act 1972 s.2(1)

[16] Miller, para 94

[17] For example, to debate issues such as European Economic Area membership.

[19] An Act of the Scottish Parliament must be compatible with EU law. Although legally possible, maintaining such provision would be redundant.

[20] Devolution (Further Powers) Committee, New Powers for Scotland, para.58

[22] M. Elliott, Available at https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-miller/

[24] Malta currently holds the presidency of the Council of European Union

[25] See http://www.voteleavetakecontrol.org/

[26] Art.50(4) TEU

 

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