Brexit Basics 5: update 23rd July

In this last week before the parliamentary recess, yet more developments and legal opinions

The UK Dimension

  • Stephen Laws, UK Constitutional Law Association: Article 50 and the political constitution: “The only relevant question now left for the UK about the Art 50 notification is what needs to be done before it is given. It is politically inevitable that the referendum result will be accepted and the notification given, perhaps in January next year.”
  • Conor James McKinney and Joshua Rozenberg, Full FactAsk Full Fact: Brexit in court: explainer on legal challenges to the way in which the Prime Minister plans to implement the referendum vote to leave the EU.
  • Aidan Robertson QC, Brexit LawBrexit and mixity: on negotiating trade deals and the issue of shared competence.

Last week in the parliaments and in the courts

Monday 18 July

  • House of Lords: Oral questions:

Baroness Deech: Clarifying the conditions for the exercise of the Royal Prerogative: Referring to the Cabinet Manual, Lord Bridges of Headley stated: “The Government’s position is that there is no legal obligation to consult Parliament on triggering Article 50. I understand that, as the noble Baroness rightly alluded to, a court case is beginning to trundle its way through the courts, and obviously that will have to make its way. Beyond what I have said, I am sorry to say there is nothing further for me to add at this point.

Lord TylerWhen Parliament’s authority should be sought as part of the negotiation for leaving the EU. The Advocate-General for Scotland (Lord Keen of Elie) (Con) said inter alia: “My Lords, Parliament will have a role in making sure that we find the best way forward. The Department for Exiting the European Union will consider the detailed arrangements to provide for that … Parliament is sovereign. But the Executive has certain prerogative powers that it exercises in international legal matters, including the making and unmaking of treaties. That remains the position … The Government have established the Department for Exiting the European Union to form a view as to the basis on which we do exit the European Union”.

Lord Lee of TraffordImplications of the EU referendum for the tourism and hospitality industries. The Earl of Courtown (Con) informed the House: “… the decision of the British people to leave the European Union creates new opportunities and challenges for the tourism and hospitality industries. The Secretary of State for Culture, Media and Sport will hold a round table with the sector before the end of July to listen and learn about those. There are no immediate changes to travel between the EU and the United Kingdom, or to the way in which our services are sold overseas”.

Tuesday 19 July

  • House of Lords: Science and Technology Committee – Oral Evidence Session. EU membership and UK science – follow-up session. [Evidence to be pubished]
  • House of Lords: Oral questions. Lord Cormack: UK presidency of the Council of the] EU in the second half of 2017 [HL Hansard 19 July 2016 Vol 774 Col 529]. The debate emphasizes the unpreparedness of the UK in relation to leaving the EU : Whilst Sir Julian King has been nominated as the new EU Commissioner for the UK to replace Lord Hill, it is now for the President of the European Commission to propose a portfolio for him; more importantly, the UK is due to take up the Presidency of the Council of the European Union in the second half of 2017. Lord Bridges of Headley indicated that the UK “will and must continue to play our full role in the EU exercising the rights and observing the responsibilities that our membership brings … We will clarify our position in due course”.

Update: On the evening of 19 July, the Prime Minister informed the European Council President Donald Tusk by phone that the UK would relinquish its forthcoming presidency of the EU Council.

  • 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; Press release here; Opinion here.

As expected, David Davis had withdrawn his name from this challenge to emergency laws on the state’s powers to spy on phone and messaging data, (aka “the snoopers’ charter”) which Theresa May pushed through Parliament in 2014 as Home Secretary. Nevertheless, a final judgment based upon this Opinion could be problematic for Mrs May and the current Home Secretary

  • High Court: The Queen on the application of Hardy v Prime Minister And First Lord Of The Treasury [CO/3527/2016] before Sir Brian Leveson P and Cranston J: Gina Miller, whom Leveson called a “concerned citizen” will be the lead claimant and hairdresser Deir Dos Santos, a group of unnamed UK citizens living in France and other expatriates, will also be party to the proceedings. The government must file a detailed response to the lawsuit by September 2.The two-day hearing will start on October 15, and in view of the constitutional importance of the case, the Court is also making arrangements for a “leapfrog” appeal to be heard by the Supreme Court in December 2016 ahead of the Government’s projected timetable for triggering Article 50 TEU at the start of 2017.
  • 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 20 July

  • House of Lords: Oral questions Interests of UK universities and their students and staff from EU member states. [HL Hansard 20 July 2016, Vol 774 Col 642Viscount Younger of Leckie gave the following telling statistic [Col 645]:

“The noble Lord has made an interesting, important and, if I may put it that way, blunt point. I agree with him that the UK gets more than 15% of EU science funding—we are the second largest beneficiary—having put 12% into the total EU budget. I can only say that it is at the top of the agenda to maintain it.”

  • House of Lords: EU Energy and Environment Sub-Committee – Oral Evidence Session [Session not yet published; other evidence here].
  • Westminster Hall Debate: Effect of the EU Referendum on Gibraltar [HL Hansard 20 July Vol 613 Col 349 WH] In concluding the debate, the Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker) made the predictable but uninformative statement:

“In summary, the United Kingdom deeply values British sovereignty over Gibraltar and is fully committed to promoting the interests of all Gibraltarians. We will work in close partnership with the Government of Gibraltar to ensure that its interests are properly taken into account in the forthcoming negotiations with the European Union. Together, we will continue to explore ways to ensure that trade continues between the UK and Gibraltar, in the same way it does now. There are many unknowns as we start along the path of leaving the European Union. We do not yet know what the terms of our deal with the EU will look like. However, the UK Government will do its utmost to get the best possible deal for Gibraltar, working closely with our friends on the Rock”.

Thursday 21 July

  • House of Lords: Oral Questions Currently allocated EU guaranteed funding to councils for regeneration – Baroness Janke. [HL 21 July Vol 774 Col 731]
  • House of Lords: Short debate Impact of leaving the EU on British farmers – Baroness McIntosh of Pickering. [HL 21 July Vol 774 Col 782]

Friday 22 July

  • House of Lords European Union Committee: the Committee published its report on Scrutinising Brexit: The role of Parliament, concluding that Parliament’s scrutiny of the withdrawal negotiations is vital to ensure an audit trail for future generations, that scrutiny must cover informal discussions, as well as negotiations on withdrawal and on a new relationship, that negotiations on a new relationship can be undertaken in parallel to withdrawal negotiations under Article 50 and that Parliamentary scrutiny would be enhanced by providing a distinct role for the House of Lords.

Next week in the parliaments and in the courts

  • The House of Commons and the House of Lords will be in recess. Both Houses will next sit on Monday 5 September.

Legal action by Mishcon de Reya and Dos Santos 

UK: Non-legal issues

Early Day Motion

At the time of writing, there were 17 names on Early Day Motion 243.

The Scottish, Welsh and Northern Irish dimensions

  • Michael Keating, Centre on Constitutional Change: Brexit Reflections – How could Scotland remain in the EU?: “It would be easier if Scottish independence came first, before the UK actually left the EU”. [No doubt it would, but dream on…]

  • Ronan McCrea, UK Constitutional Law Association: Is the United Kingdom a Mini-EU?: suggests that the UK “has drifted into being a kind of voluntary grouping of sovereign nations that bears significant similarities to the European Union”.
  • No 10: PM to visit Wales to underline her strong personal support for the union The Prime Minister met the First Minister of Wales, Carwyn Jones, in Cardiff on 18 July, to “emphasise her strong personal support for the Union in talks with the First Minister at the Welsh Assembly. The Prime Minister will also affirm the government’s commitment to fully engaging with the Welsh government in the forthcoming negotiations about the UK’s exit from the European Union and finding a sustainable future for steel making in Port Talbot” [18 July]
  • Nikos Skoutaris, Global Legal Post: Can Scotland and Northern Ireland remain in the EU?: concludes, unsurprisingly, that “both the current UK and EU constitutional frameworks seem to be unable to accommodate the very different aspirations of the UK constituent nations. In this sense, their significant amendment is almost unavoidable.”

Earlier posts on Brexit:

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