Brexit Basics 4: update 18th July

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Further developments and legal opinions

Overview

An awful warning from Tim Shipman in yesterday’s Red Box:

“Politics is simply the medium through which everyone interacts with the world beyond their own doorstep. In the age of social media, politics is something the masses can do to their rulers (exhibit A: the EU referendum) as much as it is something that leaders do to their people.”

How true. Just as it seemed as though there was little else to be said about Brexit, the dynamics of the situation changed again when as a result of the Conservative MPs’ vote, Theresa May was elected as Party Leader and became Prime Minister on 13 July. The subsequent appointments in the new government and the proposed rearrangements in Whitehall have added further uncertainty to the manner in which the proceedings will progress. The early meeting of Mrs May with Nicola Sturgeon has added to the speculation regarding the role to be played by the Scottish government, and the outgoing comments of Oliver Letwin on the dearth of trade deal expertise are concerning.

Among the first comments pertinent to law and religion were:

  • Anna Dannreuther and Adam Wagner, RightsInfo: Theresa May’s Eight Human Rights Highs and Lows i.e. 1. Cat-gate, The Conservative Party Conference; 2. May pledges her support for equal marriage; 3. The Abu Qatada case; 4. Scrapping the Human Rights Act Take 3; 5. May pledges to reform police stop and search; 6. Take Control – Conservative Party Conference; 7. Brexit Speech (AKA It’s not the EU we want to leave, it’s the ECHR); 8. The U-Turn Candidacy Speech, 30 June 2016.

In addition, this post is accompanied by our weekend supplement Brexit means Brexit, doesn’t it, in which we review last Monday’s Urgent Question debate in the Commons and the recent statement of David Davis MP.

There is also a new blog on the block: on 14 July Monckton Chambers launched the Monckton Brexit Blog.

The UK Dimension

  • Paul Craig, St John’s College, Oxford: Brexit: A Drama in Six Acts: traces developments from the promise of a referendum in 2013 to the political and legal fall-out after 23 June 2016. [11 July]
  • Helen Davies QC, Brick Court: Will the UK continue to implement EU law pending Brexit? Until the UK completes the process of withdrawal from the European Union, it remains subject to all of its EU obligations, including the obligation to transpose EU Directives into UK law (Article 288 TFEU). Consideration of the range of Directives which require implementation during the course of the two-year period prescribed for withdrawal following the service by the UK of a notice under Article 50 TEU. [7 July 2016]
  • Jemima Stratford QC, Brick Court: Brexit and pending references “What will happen to UK references for preliminary ruling which are pending before the Court of Justice in Luxembourg if and when the UK leaves the EU? As with most Brexit questions, the short answer is that no one knows”. [8 July 2016]
  • UCL discussion: Brexit: Legal & Constitutional Requirements: video of an event hosted by UCL, chaired by Joshua Rozenberg and featuring Dr Tom Hickman and Professor Jeff King (co-authors with Nick Barber of the article 50 blogpost) together with Professor Piet Eeckhout, Dr Virginia Mantouvalou, Professor George Letsas and Dr Ronan McCrea. [13 July]

No 10 and UK Parliament

  • Civil Service World: Former Brexit minister Oliver Letwin: UK has no trade negotiators: “Ex-Cabinet Office minister defends lack of contingency planning – but acknowledges dearth of trade deal expertise The government does not have a single trade negotiator, former minister who was in charge of the Whitehall unit charged with preparing to leave the European Union has revealed”. [15 July]
  • Department for Exiting the European Union: website.

Next week in the parliaments and in the courts

Monday 18

  • House of Lords: Oral questions: Baroness Deech: Clarifying the conditions for the exercise of the Royal Prerogative; Lord Tyler: When Parliament’s authority should be sought as part of the negotiation for leaving the EU; Lord Lee of Trafford: Implications of the EU referendum for the tourism and hospitality industries.

Tuesday 19 July

  • House of Lords: Science and Technology Committee – Oral Evidence Session. EU membership and UK science – follow-up session.
  • House of Lords: Oral questions. Lord Cormack: UK presidency of the Council of the EU in the second half of 2017
  • Westminster Hall. Debate: Implications of the UK leaving the EU for the UK-Ireland border – Dr Alasdair McDonnell.
  • CJEU: Advocate General’s opinion on Case C-698/15 brought last year by current Brexit minister David Davis MP against the then Home Secretary, Mrs May, before the Court of Justice of the EU, seeking to impose EU law on UK, i.e. whether S1 Data Retention and Investigatory Powers Act 2014 is compatible with EU law. Summary here.  
  • High Court: Sir Brian Leveson PQBD and Mr Justice Cranston:  CO/3281/2016 The Queen on the application of Santos v Chancellor For The Duchy Lancaster. Preliminary hearing of the judicial review challenge on Article 50 TEU brought on behalf of the British citizen Deir Dos Santos.
  • Scottish Parliament’s European and External Relations Committee:  “Visiting Brussels … as they continue their examination of the implications of Brexit for Scotland. The Committee members will meet with Ambassadors from the European Union and EFTA (the European Free Trade Association) Member States, together with a number of other key organisations in Brussels”.

Wednesday 20th July

  • House of Lords: Oral questions Interests of UK universities and their students and staff from EU member states. – Baroness Eccles of Moulton.
  • House of Lords: EU Energy and Environment Sub-Committee – Oral Evidence Session The potential implications of Brexit on environmental policy.
  • Westminster Hall Debate: Effect of the EU Referendum on Gibraltar – Jack Lopresti.

Thursday 21st July

  • House of Lords: Oral Questions Currently allocated EU guaranteed funding to councils for regeneration – Baroness Janke.
  • House of Lords: Short debate Impact of leaving the EU on British farmers – Baroness McIntosh of Pickering.

Possible implications for the ECHR

Legal action by Mishcon de Reya and Dos Santos

  • Jack of Kent: Cavaliers and Roundheads: four thoughts about the Article 50 litigation: “in summary: you have cases the government wants to close down, cases which the courts will hear and decide only if they have to, cases which may not lead to any decision or remedy, and cases where it cannot be predicted which side is most likely to win”. [11 July]

Conservative Party leadership/ Ministerial Appointments

Whilst the following  are now “old news” in this week of fast-moving development, they have been included on grounds of continuity with the earlier Brexit Briefs.

  • BBC: Theresa May set to be UK PM after Andrea Leadsom quits : Angela Leadsom pulled out of the leadership contest on 11 July before the third round of voting by Party Members. Michael Gove was eliminated after the second round, leaving Angela Leadsom and Theresa May. [11 July]

UK: Non-legal issues

EU e-petitions

1. EU Referendum Rules triggering a 2nd EU Referendum

The Petitions Committee has decided to schedule a House of Commons debate on this petition. The debate will take place on 5 September at 4.30pm in Westminster Hall, the second debating chamber of the House of Commons. The debate will be opened by Ian Blackford MP.

The Committee has decided that the huge number of people signing this petition means that it should be debated by MPs. The Petitions Committee would like to make clear that, in scheduling this debate, they are not supporting the call for a second referendum. The debate will allow MPs to put forward a range of views on behalf of their constituents. At the end of the debate, a Government Minister will respond to the points raised.

A debate in Westminster Hall does not have the power to change the law, and won’t end with the House of Commons deciding whether or not to have a second referendum. Moreover, the petition – which was opened on 25 May, well before the referendum – calls for the referendum rules to be changed. It is now too late for the rules to be changed retrospectively. It will be up to the Government to decide whether it wants to start the process of agreeing a new law for a second referendum.

The Petitions Committee is a cross-party group of MPs. It is independent of Government. You can find out more about the Committee on its website.

2. Cancel the planned referendum on Britain’s continued membership of the EU

This petition attracted 62,413 signatures; the FCO has commented, somewhat belatedly but predictably. The response concludes: “[t]he Referendum has now been held, and the British people have voted to leave the European Union. The Prime Minister has been clear that the British people’s will must be respected”.

Early Day Motion

At the time of writing there were 14 names on Early Day Motion 243.

Letter to David Cameron

A letter dated 9 July signed by Philip Kolvin QC “and 1053 others” was sent to Prime Minister David Cameron indicating their belief that in order to trigger Article 50, there must first be primary legislation: it called for a Royal Commission or equivalent to be established:

 “to receive evidence and report, within a short, fixed timescale, on the benefits, costs and risks of triggering Article 50 to the UK as a whole, and to all of its constituent populations. The Parliamentary vote should not take place until the Commission has reported. In view of the extremely serious constitutional, economic and legal importance of the vote either way, we believe that there should be a free vote in Parliament”.

The Scottish and Northern Irish dimensions

  • Tom Mullen, OUPblog: A tale of two referendums: on the possibility of a second independence referendum and a comparison between the EU referendum with and the Scottish independence referendum.

Rights of residence

The Cabinet Office, the Home Office and the FCO issued a joint statement on the position of EU nationals currently resident in the UK: broadly speaking, no immediate change.

Earlier posts on Brexit:

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