Brexit – after the UK General Election: has hubris led to nemesis or catharsis?

20 Jun 2017

1. The UK General Election was confidently called in order to provide the Government with a stronger mandate for its hard-edged Brexit negotiation strategy. In fact , the UK Government’s position in Parliament has been weakened. There is now increased uncertainty . Yet, notwithstanding the result and ensuing discussion to secure a parliamentary majority, there are a few preliminary pointers which could usefully be taken into account by lawyers in in the absence of any adequate clarity about the UK Government’s negotiating strategy.

2. Practitioners will have observed the outcome of the General Election in the UK with some bemusement. Equally, lawyers and their clients will need quickly to analyse what is known and to make judgments about future legal risk accordingly.

What could lawyers usefully note about the constitutional aspects?

3. The EU/UK Brexit negotiations began on 19 June. The expectation was that the negotiations would begin by addressing the post-Brexit rights of EU and UK citizens, the size of the exit bill and the implications for the Republic of Ireland and Northern Ireland. It now seems to be accepted that a trade agreement or a transitional agreement will not be negotiated in parallel with the negotiations on the withdrawal agreement until sufficient progress has been made on the withdrawal agreement.

4.  The UK’s governing party, the Conservative Party, sought a strong mandate in the General Election for its Brexit negotiating strategy. Hubris or not, the expectation was that the Conservative Party would be returned with a larger majority than previously. In fact, as a result of the General Election,  the UK Government has no overall majority in the  House of Commons (the elected lower house of the UK Parliament), as it enjoyed before the General Election. That said, the Conservative Party has the largest number of members of parliament. To give it a working overall majority, the Conservative Party is negotiating a deal with the Democratic Unionist Party in Northern Ireland. The details of the deal are being worked out at the time of writing.

5. In parenthesis, it might be usefully noted that the public discourse on the arithmetic of votes in the House of Commons  seems   to have taken account neither of the Speaker’s and Deputy Speakers’ conventions on (not) voting nor the fact that Sinn Fein MPs do not take their seats at Westminster. Both are capable of having an impact on numbers in the voting lobbies.

6. The UK has a dualist tradition for the implementation of its EU and international obligations. Such obligations have to be expressly incorporated into UK domestic law in order to have legal effect. Incorporation is effected either by UK primary legislation (acts of the UK Parliament) or by secondary legislation made under powers conferred on the UK Government or on the devolved administrations by primary legislation. Without a reliable overall majority in the House of Commons, the successful passage of primary legislation cannot be guaranteed.

7. Against that background, there are two points to make. First companies and citizens need to have certainty that, post-Brexit, the UK will have effectively replicated the EU acquis in UK national law by virtue of the so-called Great Repeal Bill, as well as by virtue of several Brexit-related bills that are anticipated in respect of , inter alia, immigration and trade matters. Secondly, companies and citizens need to have certainty that their future rights which are agreed in the EU/UK withdrawal agreement under Article 50 are properly implemented into national law.

8. How can the desired level of legal certainty be delivered if the UK Government has no overall majority in the House of Commons and if, as is the case, the political parties are divided over what the Brexit negotiating strategy should be? The Conservative Government has hitherto argued (a) that the UK will not seek membership of the Single Market since the concomitant of membership of the Single Market would be that the UK could not maintain control over its borders and (b) that the UK wishes to leave the Customs Union, since membership would prevent the UK from negotiating bilateral trade deals with states which are presently third countries. But if it cannot get its legislation through the House of Commons (including a possible series of votes on the Queen’s Speech), some commentators would argue that the General Election has left the Government facing its nemesis.

What might an alliance with the dup mean for the parliamentary arithmetic?

9. The UK does not generally have coalition governments. But the party with the most MPS is entitled to try to form an alliance with another party or parties. The coalition between 2010 and 2015 was exceptional. In summary,  it is expected that, short of a formal  coalition, the DUP will support the Conservatives on the basis of a procedure called “supply” (voting with the Government where authority to spend money is required) and “confidence” (voting with the Government if Parliament is asked to approve a vote of no confidence in the Government).

10. The details of what the DUP will demand are not yet known. The question of the adverse impact of the negotiations on a highly sensitive peace process is a high priority for the EU and the UK. So far as Brexit issues are concerned, although closely aligned to the Conservatives, they are likely to demand a soft border with the Republic of Ireland. This would undermine the UK Government’s preferred negotiating strategy. Yet the two societies and economies are closely linked. If free movement by virtue of the Common Travel Area were stopped and  if tariffs were imposed in respect of cross border trade, with the resultant increase in border controls,  the consequences would be  serious , albeit presently  unquantifiable

Can lawyers presently prepare for an uncertain future?

11. Legal instability is inherent in the unpredictable substantive outcome of the EU/UK negotiations. But that instability is now exacerbated by the lack of clarity about whether the Conservative Government’s preferred policy (see above) is sustainable in the post-election environment.

12. With the parliamentary arithmetic so finely balanced, it is thought that the UK Government may have to soften its hard line stance. There have been calls for an attempt to build a cross party consensus. Might this lead to catharsis?

13.  With few exceptions, the Opposition parties are strong supporters of the advantages of the Single Market and of the Customs Union. That said, the Labour Opposition’s stance is nuanced. The Labour leadership has not committed itself to membership of the Single Market. But its Brexit lead is prepared to support membership of the Customs Union. Moreover, a reasonable number of Conservative MPs are themselves supporters of the Single Market, not least the  intake of  newly elected Scottish Conservative MPs. Yet the Scottish Conservatives also seek the UK’s withdrawal from the Common Fisheries Policy. Leaving aside the question whether the policy of withdrawal from the CFP would be wise, the UK may also close its territorial waters to non-UK fishing vessels. If so, the negotiations could become very difficult for EU Member States with large scale fishing interests such as Spain and Denmark. The inclusion in the Queen’s Speech of a Fisheries Bill will do nothing to alleviate concerns in other Member States until there is clarity about the scope of the bill, presently described as:  a bill to control access to its waters and set UK fishing quotas. The battle lines are being drawn.

14. There is also instability which flows from the length of the negotiating timetables, now accentuated by the absence of meaningful engagement during the UK election period.

15. Irrespective of the negotiations themselves and what they might mean, the UK Government will soon introduce legislation to give effect to the replication of EU laws in national law in readiness for the operative day of Brexit (paragraph 7 above). Aspects of these bills will be highly contentious and the parliamentary arithmetic, with or without DUP support, is unlikely to permit easy and safe passage.

16. For the moment, practitioners may have to plan ahead on the strength of more than one alternative. Since, notwithstanding the Conservative Party’s failure to gain a stronger mandate, they remain the party of government, practitioners will want to check the party’s published Manifesto for sign posts to an uncertain future. They will find no mention of the UK’s intended refusal to accept the jurisdiction of the CJEU in a post Brexit world. But they will find a reference to the need to increase protection from foreign takeovers for British companies. For a party that has been the champion of the free market and deregulation, is this the sign of protectionist things to come?

17. To conclude, it is too early to predict what the future holds . But unless the UK Government softens its hard line on its Brexit negotiation strategy , the result might be that it will face its nemesis in the UK Parliament. The Queen’s Speech on 21 June signalled eight Brexit related bills.  That is a complex bundle of contentious bills and the parliamentary  votes are likely to differ from topic to topic. The voyage ahead looks decidedly unsteady.