BREXIT – A Snapshot – Part 1

This post has been contributed by Professor Andrea Biondi, EU law Module Convenor.

 

On 29 March 2017, the United Kingdom notified the European Council of the EU of its intention to leave the European Union.

brexit_3

The notification was made in accordance with Article 50 of the Treaty on European Union. Article 50 of the Treaty on European Union provides for a mechanism for the voluntary and unilateral withdrawal of a country from the European Union (EU). A EU country wishing to withdraw must notify the European Council of its intention to do so. The European Council is then required to provide guidelines for the conclusion of an agreement setting out the arrangements for that country’s withdrawal. The Council, acting by qualified majority, having obtained the European Parliament’s consent, concludes this agreement on behalf of the EU. The EU treaties cease to apply to the country in question from the date of entry into force of the agreement, or within 2 years of the notification of the withdrawal. The Council may decide to extend that period.

Thus, the exit day for the UK is scheduled to be at 11pm UK time on Friday 29 March 2019.

After notification, the negotiations started amid so many political controversies that it is sometimes difficult to discern what the real issues are. This short blog aim is to provide a legal framework for the EU –UK withdrawal process.

 

The UK perspective

The official position adopted by the UK Government in relation to the process of withdrawing from the EU was firstly expressed in its two White Papers of 2 February 2017 and 30 March 2017 entitled ‘The United Kingdom’s Exit from and New Partnership With the European Union’ and ‘Legislating for the United Kingdom’s withdrawal from the European Union’ respectively.[1] One of the priorities listed in the 2 February 2017 White Paper is to provide ‘business, the public sector and the public with as much certainty as possible’. In order to do so, the Government will introduce: ‘the Great Repeal Bill to remove the European Communities Act 1972 from the statute book and convert the ‘acquis’ – the body of existing EU law – into domestic law. This means that, wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before. … This approach will preserve the rights and obligations that already exist in the UK under EU law and provide a secure basis for future changes to our domestic law. This allows businesses to continue trading in the knowledge that the rules will not change significantly overnight and provides fairness to individuals whose rights and obligations will not be subject to sudden change. It will also be important for business in both the UK and the EU to have as much certainty as possible as early as possible. [2]

This approach has now been embodied in the EU Withdrawal Bill[3] whose main function is to repeal the 1972 European Communities Act, which took Britain into the EU and that sanctioned the supremacy of EU law over domestic conflicting law.  The Bill simply aims at ‘domesticating’ any existing EU law provisions into UK law as to ensure a smooth transition on the day after Brexit. This will mean for instance that the Bill will convert existing direct EU law (including EU regulations and directly effective decisions), as it applies in the UK at the date of exit, into domestic law. It will also preserve the laws that the UK passed as to implement our EU obligations (such as laws made to implement EU directives). However the Bill grants to the government wide powers ‘to correct retained EU law ‘, meaning the power to repeal or amend specific areas or provisions,

For the EU law course purpose, clause 4 and 5 are particularly relevant (SEE EU GUIDE CH.5). Clause 4 ensures that any directly applicable EU law will continue to be recognised and available in domestic law after exit. As the Government explained this includes, ‘directly effective rights contained within EU treaties. Directly effective rights are those provisions of EU treaties which are sufficiently clear, precise and unconditional to confer rights directly on individuals which can be relied on in national law without the need for implementing measures’.

Clause 5 sets out two exceptions to the saving and incorporation. The first exception is the principle of supremacy of EU law, as supremacy principle will not apply to legislation passed or made on or after exit day. However, if a conflict arises between pre‐ exit domestic legislation and retained EU law, subsection (2) of clause 5 provides that the principle of the supremacy of EU law will, where relevant, continue to apply as it did before exit. Thus national courts will continue to apply the principle of supremacy and its corollaries such as that of consistent interpretation. Curiously the Bill uses a very broad language so that one can wonder if there is a now a duty for national courts to disapply purely domestic law every time it conflicts with EU derived law. If this is correct this would imply a constitutional revolution as common law courts would be given the power to strike down any national law and not – as it happens today only when it conflicts with EU law. Furhermore, Clause 6 of the Bill provides that  any court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.’ It is anybody’s guess what ‘ appropriate to do so ‘ would mean and how national courts will interpret such a provision.

The second exception is the Charter of Fundamental Rights. According to the UK Government the Charter did not create new rights, but rather codified rights and principles which already existed in EU law thus by converting the EU acquis into UK law so those underlying rights and principles will also be converted into UK law. Students will of course be aware that the CJEU tends to interpret the Charter as an autonomous source of rights and obligations (SEE EU GUIDE CH.12).

Despite the technicalities and all the practical problems of converting the EU acqui into domestic law (the government’s White Paper says there is “no single figure” for this, but that there are believed to be 12,000 EU regulations in force, while Parliament has passed 7,900 statutory instruments implementing EU legislation and 186 acts which incorporate a degree of EU influence), there is a major problem with the EU Withdarwal bill rationale: it is simply impossible to ‘absorb’ the entirety of EU rights and the EU courts’ acquis as for many crucial areas continued common activity depends on EU rights that cannot simply be incorporated into UK domestic law. The examples are so many that is impossible to quote them all, from free movement rights, to aviation, to IP, to state aid and so on. Many important EU rights are, as a matter of fact, simply not capable of being exhaustively replicated, even if the UK Parliament wished to do so, within a domestic law framework, because their geographical application and methods of regulation and enforcement are dependent on the nature of the EU legal order. This is the reason why a conclusion of a fair and transparent EU-UK Relationship Agreement is vital for both sides.

[1] White Paper ‘The United Kingdom’s Exit from and New Partnership with the European Union’ of the 2nd of February 2017, Cm 9417 and White Paper ‘Legislating for the United Kingdom’s withdrawal from the European Union’ of the 30th March 2017, Cm 9946.

[2] White Paper of the 2nd of February 2017, p.9 para. 1.1 and 1.2.

[3] European Union (Withdarwal) Bill (HC Bill 5), 13 July 2017

 

To find out the phases in the negotiations, check out The Negotiations – Part 2 laws blog next week.

 

3 comments

  1. Thanks much. It really gives critical insight without the sensationalism and this is important for students who live outside of the UK or EU countries.

    Like

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