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Since the EU Referendum, lawyers and the public have asked when the Government would start the process of exit from the EU and what , in substantive terms, Brexit would mean. This post, together with George Peretz’s post “The Great Repeal Bill: a giant Henry VIII clause? “, seeks to provide some answers.
As a consequence of the Prime Minister’s speech to the Conservative Party Conference on 2 October, we are beginning to see what the UK Government’s opening gambit on Brexit might mean. But the Prime Minister has made clear that she will not disclose the detail of the negotiation as it unfolds. Whatever the stated aim and whatever the starting point, be prepared for stormy water and a change of course. Anyone previously involved in interstate negotiations will recognise that life is full of surprises.
First, as to timing of notice to the EU, the giving of notice under Article 50 will take place by the end of March 2017. The question whether giving of notice requires an act of parliament before Article 50 can be triggered is about to be litigated. If the claimants are right, the UK Courts could order/declare that the Secretary of State should introduce primary legislation, which would be constitutionally innovative. It would mean that, by the effective date of Brexit, at least three acts of parliament would have been necessary to give effect to withdrawal from the EU.
Secondly, the Prime Minister announced the introduction of a Great Repeal Bill, which would mean that the European Communities Act 1972 would no longer apply from the date when the UK leaves the EU. That is hardly a surprise , given that the 1972 Act provides for the supremacy of EU Law over UK domestic law.
Thirdly, as to the content of the Great Repeal Bill, the Prime Minister said: “ As we repeal the [1972 Act] , we will convert the acquis – that is, the existing body of existing EU Law – into British law. When the Great Repeal Bill is given Royal Assent, Parliament will be free –subject to international agreements and treaties with other countries and the EU on matters such as trade – to amend, repeal and improve any law it chooses. But by converting the acquis into British law, we will give businesses and workers maximum certainty as we leave the European Union. The same rules and laws will apply to them after Brexit as they did before. Any changes to the law will have to be subject to full scrutiny and proper Parliamentary debate.”
This passage helpfully recognises the complexity of repealing, amending, improving and/or re-enacting EU Law. Those laws are contained in the EU treaties some of whose provisions are directly applicable; in regulations which are directly applicable, but whose enforcement machinery may already be contained in domestic laws; in directives which have been incorporated into domestic law. There are also questions about the fate of broader horizontal EU legal concepts such as the doctrine of direct effect. Even if EU Law were to be swept away, there are frequently international treaty obligations which sit behind EU Law, for example, in the environmental law field (the Aarhus Convention or the Strategic Environment Assessment Protocol) or in the aviation field (the Chicago Convention) .
Does the passage mean that , by the time of the enactment of the Great Repeal Bill, Parliament will already have decided which laws were to be re-enacted and which laws were to be amended, repealed or improved? Is it practical for the process of reconsidering EU laws and of consulting on changes to be completed within a two year time frame ? If not , the answer must be that the acquis would be re-enacted lock, stock and barrel, subject to further amendment over the ensuing years. That would be the only way to ensure the “maximum certainty” that the Prime Minister seeks.
But, fourthly, if a lawyer is advising a client who is thinking more strategically in a longer time frame , what might the amendments, repeals or improvements comprise? Lawyers might find some of the answers in the Government’s own Balance of Competence Reviews carried out in each policy sector by Government departments between 2012 and 2014. This was a serious attempt by the Coalition Government to ascertain how, in the view of stakeholders and commentators , the balance between EU competence and national competence should be articulated.
Fifthly, for the future, the Prime Minister said three things:
(a) The future was to be a global future;
(b) “It is not a… negotiation to establish a relationship anything like the one we have had for the last forty years or more. So it is not going to be a “Norway model” . It’s not going to be a “Switzerland model”…. I want it to include cooperation on law enforcement and counter-terrorism work. I want it to involve free trade in goods and services . I want to give British companies the maximum freedom to trade with and operate in the Single Market – and let European companies do the same here…”
(c) But ….we are not leaving the [EU] only to give up control of immigration again. And we are not leaving to return to the jurisdiction of the European Court of Justice”
That seems a clear signal that the UK will not seek to retain membership of the EEA. The UK has also recognised the shortcomings of the Swiss model, involving the negotiation of an endless stream of individual bilateral agreements, which the EU has itself criticised. Moreover, in signalling that the UK will not accept free movement of workers , that is surely a tacit acceptance that full access to the Single Market has been abandoned since free movement is likely to be a non-negotiable pre-condition of full access to the Single Market. Finally, without rulings by the CJEU, it is difficult to see how the uniform application of EU laws that do apply to the UK in the future can be guaranteed.
It is challenging to predict what the Brexit endgame will produce. Yet in practical terms, lawyers need to try to manage legal risk in an environment where a future legal framework has yet to be articulated . Given the significant uncertainties ahead, lawyers should not be afraid to raise their concerns and suggested solutions with the Government now. In that way, lawyers, acting with their clients, can start to influence thinking in a positive way.
This text is based on a talk given at a workshop for lawyers at Eversheds LLP on 4 October. Other panellists at the workshop were David Unterhalter SC, Peter Oliver and Professor Panos Koutrakos.