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The UK Parliament and the Brexit maze, by Christopher Muttukumaru

Brexit Update 30/11/2018


Brexit has involved comparative legal uncertainty hitherto. The issues are exceptionally intricate. Scenario 1 might confer a measure of legal certainty but is regarded as a sub-optimal outcome by many parliamentarians.




The hedge maze in the Giusti Palace and Gardens, Verona. Photograph Christopher Muttukumaru
The hedge maze in the Giusti Palace and Gardens, Verona. Photograph Christopher Muttukumaru
For UK and EU27 businesses and citizens, the legal uncertainty resulting from the Brexit maze continues in spite of publication of the EU/UK Withdrawal Agreement (“WA”) and the political declaration (“PD”) on a permanent EU/UK relationship[1].

The stage has now shifted to the UK Parliament. The Brexit debates on the WA and PD will begin on 4 December. They will culminate on 11 December. It is unclear how UK Members of Parliament will vote on 11 December. The process allows for scrutiny by the UK Parliament, step by step. The process may result in the comparative certainty offered by Scenario 1 (below) or for an extended period of uncertainty offered by the remaining scenarios.

There are at least six scenarios to consider in a legal context. In this short article, the scenarios are not an exhaustive list and the legal aspects should be treated as signposts.

Scenario 1 – the UK Parliament approves the EU/UK Withdrawal Agreement and the Political Declaration; and an EU (Withdrawal Agreement) Bill is then introduced for enactment by the UK Parliament.

Under the UK’s dualist legal tradition, an international agreement must be implemented into domestic law and must be ratified.
In the UK, the act of ratification is distinguishable from the associated act of implementation. Ratification is governed by article 2(1)(a) of the Vienna Convention on the Law of Treaties (the act by which a state signifies its consent to be bound by a treaty) and must be in accordance with Part II of the Constitutional Reform and Governance Act 2010[2].

The European Communities Act 1972 (“the 1972 Act”) was the act of parliament that gave effect to the UK’s membership of the European Community. The European Union (Withdrawal) Act 2018 (“EUWA”)  is the Act which will repeal the1972 Act and take the UK out of the EU on 29 March 2019, which is exit day.

As a pre-condition to ratification, EUWA also contains additional safeguards for Parliament to scrutinise the WA and the PD. Section 13(1) of EUWA provides that the WA may not be ratified unless the WA and the PD have been approved by a resolution of the House of Commons. This is colloquially referred to as the meaningful vote[3]. A simple majority will be sufficient to win the vote or votes.

If Parliament approves the WA and the PD on 11 December, an EU (Withdrawal Agreement) Bill[4]  (“WAB”) will be introduced to give effect to the WA. A draft of the bill has not yet been published. Even so, some of the relevant provisions are likely to include the following:
  • WAB would need to amend or suspend various provisions of the EUWA. Why? In particular, Article 127(1) of the WA provides for a transition period in which “Union Law shall be applicable to and in the United Kingdom during the transition period “.That means that “the Union law pursuant to paragraph (1) shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union”[5].
  • The EUWA would, therefore, be inconsistent with the Withdrawal Agreement since, for example, the EUWA creates new concepts of retained and converted EU law which may be amended for “deficiencies” as the laws are converted or retained in UK national law; it abolishes reliance on the Francovich principle; it sweeps away the jurisdiction of the CJEU; it requires the UK courts to adopt a different approach to application of post-exit jurisprudence of the CJEU which will no longer have supremacy over UK national law;
  • So, what will happen on exit day? EUWA will still repeal the 1972 Act. That will not, in my view, change because the political imperative will be for the UK (symbolically and legally) to leave the EU. But it should be noted that there is power to amend the meaning of “exit day” to align it with the date and time when the EU treaties cease to apply to the UK if other than 29 March 2019[6].
  • Instead, the UK will have a shadowy existence within the scope of EU law. The WA itself provides that references to the Member States will continue to include the UK[7] but that the UK will no longer participate in the decision-making and governance of the bodies of the Union[8] ; nor will the UK have the right to seek appointments to the EU institutions[9]; moreover, the UK Parliament will no longer be regarded as a national parliament of the EU[10].
  • But since EU law must continue to apply in the transition period, the WAB (once enacted) will amend the EUWA so that the effect of the 1972 Act is preserved for the duration of the transition period[11].
  • The WAB will probably define the end of the transition period as 31 December 2020. But the WAB will need to reflect the probability that the transition will be extended beyond that date[12]. Why? Leaving aside the political dispute over the Northern Ireland backstop in the WA, it is difficult to believe that the long-term EU/UK agreements will have been negotiated by then, not least if ten separate negotiating workstreams are set up, as anticipated by Michel Barnier.
  • EU regulations will continue to function in the UK as directly applicable law through the preserved effect of section 2(1) of the 1972 Act [13].
  • But so far as implemented directives are concerned, there may still need to be some changes to the implementing laws since there will be technical issues to reflect in the drafting, eg, references to the UK as a Member State may no longer be apt.
  • If the depositary of the WA does not receive notice before 30 March 2019 that the UK’s internal processes have been completed to ratify the WA, Article 185 of the WA provides that the WA will not enter into force on 30 March 2019.
  • That might mean that the UK Government will continue to twin track plans for a hard Brexit by making and laying any remaining statutory instruments which are needed to give effect to the EUWA[14].
  • In the EU, the probability is that, whatever happens in the UK, the draft WA will be sent to the European Parliament for its consent.
  • In the EU27, the Member States must themselves implement the WA, complying with such national constitutional steps as are necessary to give effect to the WA. Because Article 50 allows the Council to adopt the WA on the strength of a super-qualified majority, the probability is that any necessary constitutional hurdles will be minimised.
  • As for the PD, as a political declaration and not a binding instrument, it is unlikely to need formal ratification in the EU27. But, when the permanent agreements with the UK are concluded, they will be intergovernmental agreements and will require approval by the Member States in accordance with national constitutional requirements. That could include the holding of national referendums. There are recent examples of referendums on international treaties in the other Member States which have delayed the coming into force of treaties.

Scenario 2 If, on 11 December, the UK Parliament does not pass a resolution to approve the WA and PD under section 13 (1) of the EUWA, then there will be a step by step approach to follow.

The UK Parliament has wisely anticipated a number of contingencies and has elaborated the following approach:
  • A minister, within 21 days of the vote(s) to reject the deal, must make a statement setting out how the Government intends to proceed with the negotiations[15] That statement has to be debated in both Houses of Parliament on the basis of a neutrally drafted motion;
  • If the Prime Minister makes a statement by the end of 21 January 2019 [16] that no agreement can be reached with the EU, a minister must (within 21 days), make a statement on the way that the UK intends to proceed with the negotiations. That statement must also be debated by both Houses of Parliament on the basis of a neutrally drafted motion;
  •  If, at the end of 21 January 2019, there is no agreement in principle with the EU, a minister must make a statement to both Houses of Parliament within 5 days. The statement must set out how the Government intends to proceed with the negotiations. That statement must also be debated by both Houses of Parliament on the basis of a neutrally drafted motion;
  • Although both parties to the WA and the PD say that there is no scope to amend either, the UK parliamentary process raises the possibility of further negotiations. But a “no deal” scenario would damage both sets of parties. So a limited renegotiation could, in theory, happen if the UK and EU27 were to agree unanimously to do so.
  • There is nothing to prevent a second set of parliamentary votes on the WA and the PD.
  • If there is no deal and no renegotiation, the UK might proceed to a so-called hard Brexit under the EUWA on 29 March 2019. Legal aspects would include (i) taking any necessary steps under WTO rules, (ii) making and laying the remainder of the 800 statutory instruments to correct deficiencies and (iii) taking such other steps as might be necessary to regulate such matters as border controls and Customs checks.
  • The UK Government has published a series of so-called technical notices which will need careful scrutiny. For its part, the European Commission has published a series of Brexit Preparedness Notices.

Scenario 3. As a possible gloss on scenario 2, if the UK Parliament does not approve the WA or the draft PD, and assuming that neither side would want “no deal”, an alternative or adjunct to a hard Brexit under the EUWA could be a negotiation with the EU on a third way in the short term (the “bare bones” solution).

If so, then:
  • The aim might be to adopt a “bare bones” agreement with the EU, pending further negotiations. For example, in early 2018, the Commission itself suggested that, in certain circumstances, flights to and from the UK might be permitted if there were no deal on the basis of the bare minimum needed to keep air transport links open;
  • It might also be possible to strip out parts of the WA and create a new agreement as an emergency measure for a short period;
  • Any such agreements would need to be implemented into national law. Whether this could be achieved by 29 March is questionable.

Scenario 4 If the UK Parliament does not approve the WA or the draft framework for a future relationship, a further alternative could be a General Election.

If so then:
  • Time is against this scenario. Under Article 50, the treaties would cease to apply to the UK on the date of coming into force of the WA (which is 30 March 2019[17]) or, failing that, two years after the notice given by the UK unless the EU27 unanimously agree to extend the two-year period with the consent of the departing Member State.
  • On the assumption that the EU 27 were prepared to agree to an extension of time, the Article 50 notice would still need to be varied or revoked since it is based on a time period which expires on 29 March 2019.
  • At a national level, the UK would also need to amend the operation of the EUWA since it binds the UK to an exit on 29 March 2019;
  • A decision to hold a general election would have to comply with the requirements of the Fixed Term Parliaments Act 2011[18]. In essence this would require either that (a) the House of Commons should approve (by a two thirds majority) a motion that there should be an early general election or (b) the House of Commons should approve one of two types of motion to the effect that “this House has no confidence in Her Majesty’s Government”.

Scenario 5 If the UK Parliament does not approve the WA or the draft framework for a future relationship, an alternative could be a second referendum.

  • Time is against this scenario. The points under Scenario 4 (first three indents) would apply.
  • A second referendum would require powers under a new act of Parliament and then time to hold it. 

Scenario 6 If the UK Parliament does not approve the WA or the draft framework for a future relationship, an alternative that is being canvassed is called “Norway for Now”.

  • The UK could still leave the EU on 29 March 2019. If so, it would lose its membership of the European Economic Area (“EEA”) as an EU Member State; 
  • But the UK could seek to negotiate membership of the European Free Trade Association (“EFTA”) before 29 March 2019 – the Norway option. If so, it would retain membership of the EEA as an EFTA state. Negotiation would, however, take more time than is available before 29 March 2019. In turn, the points under Scenario 4 (first three indents) would apply;
  • There would need to be national implementing legislation in the UK;
  • The negotiating position of the EFTA states is unknown since the UK has not asked to join EFTA. Indeed, the UK Prime Minister has expressly ruled out the Norway option.
  • The national constitutional requirements of existing EFTA states would have to be followed. 

In conclusion, Brexit has involved comparative legal uncertainty hitherto. The issues are exceptionally intricate. Scenario 1 might confer a measure of legal certainty but is regarded as a sub-optimal outcome by many parliamentarians. Therefore, the UK parliamentary process might expose a maze of alternative scenarios. The alternative scenarios might prolong legal uncertainty. Uncertainty would affect long-term commercial and individual planning. There is now an opportunity for members of parliament to consider where the national interest lies. It is a weighty burden to carry.
 

[1] See European Commission TF50 website [link here ]
[2] See legislation.gov.uk In practical terms, section 20 of the 2010 Act requires a treaty to be laid before Parliament; it may be ratified after 21 days have passed without either House having resolved, within that period, that the treaty should not be ratified.
[3] It is probable that the motion for a resolution by members of parliament will allow amendments to be tabled in respect of it.
[4] The bill was previously known as Withdrawal Agreement Implementation Bill
[5] Article 127(3).
[6] Section 20 (4) of EUWA
[7] Article 7(1). Article 7 applies to the transition period and beyond.
[8] Article 7(1)(b)
[9] Article 7(1)(a)
[10] Article 128 (2)
[11] Paragraph 60 of the UK White Paper on Legislating for the Withdrawal Agreement (Command paper 9674).
[12] Article 132(1)
[13] paragraph 65 of the White Paper (ibid).
[14] paragraph 75 of the White Paper (ibid). About 800 statutory instruments will be needed to give effect to the EUWA. A statutory instrument is made by the Executive and laid before Parliament which can in certain circumstances vote against it.
[15] section 13(4) of the EUWA.
[16] section 13(7) of the EUWA
[17] Article 185(1)
[18] Link to legislation.gov.uk

Christopher Muttukumaru

CB, DL, barrister , consultant to Eversheds Sutherland (International) LLP and a member of FIDE’s Academic Council

The Victoria Tower of the UK Houses of Parliament-Christopher Muttukumaru