“Brexit: pursued by a bore (or two)?”
Greenland and Brexit
The practicalities of leaving the EU are at last being addressed and this week attention has focused on the “withdrawal” of Greenland from the European Communities; numerous references have been made in the printed and social media to a statement of the former Cabinet Secretary Lord O’Donnell who, in March 2016, the BBC quoted as saying:
“Greenland’s decision to withdraw from the European Community, the organisation that preceded the EU, in 1985 offered the only precedent; Greenland has a slightly smaller population than Croydon and it has one issue, and that’s fish; So with one issue, small population, it took them not two years but three. We have multiple issues. The idea that we can do it all in two years I think is highly unlikely.”
However, the previous month, the European Parliament issued the document, Article 50 TEU: Withdrawal of a Member State from the EU, which on page 3 includes the following summary [emboldening in original, our italicization]:
“Greenland: no withdrawal precedent
In a referendum on 23 February 1982, Greenland decided – by 53% to 47% – to leave the then European Communities (EC). However, the 1985 ‘exit’ of Greenland from the EC is legally speaking not a ‘withdrawal’ as Greenland was not a Member State of the EU but was, and remains, part of an EU Member State, Denmark. This is why its ‘withdrawal’ from the EC took place in the form of a reduction of the territorial jurisdiction of the Treaties through a Treaty change ratified by all Member States. Due to its former status as a colony and its geographical distance from the EU, Greenland became an ‘associated overseas territory’ (Article 204 TFEU) with special arrangements with the EU, particularly with regard to fisheries – it is given access to the single market for fisheries’ products in return for EU fishermen’s access to Greenland waters (Protocol 34 to the Treaties).”
Apart from ardent Brexiteers, most would agree that the UK has multiple issues to address, and the idea that this may be accomplished in two years is highly optimistic. Nevertheless, those who argue in support of this premise should compare like with like. The impact of Brexit on UK fisheries is reviewed in a House of Commons Library Note, below.
The UK Dimension
- Carl Baudenbacher, President of the EFTA Court: The EFTA Court Fifteen Years On: helpful explanation of the legal relationship between the EEA/EFTA and the EU, in particular: “In order to create a level playing field for individuals and economic operators, i.e. to avoid a race to the bottom and forum shopping, the drafters of the EEA Agreement formulated homogeneity rules which essentially bind the EFTA Court to follow relevant ECJ case law.”
- Paul Bowers et al, House of Commons Library: Brexit: some legal and constitutional issues and alternatives to EU membership: looks at the withdrawal process, the devolved nations, “acquired rights” and alternatives to EU membership. [28 July]
- Karin Fløistad, EU Law Analysis: Free movement of persons in the European Economic Area (EEA) – different from the EU?: concludes that there are two differences: the lack of EU citizenship within the EEA and the fact that immigration from other non-EU countries is outside the scope of the Agreement.
- Jon Henley and Jessica Elgot: The Guardian: Brexit weekly briefing: May goes on tour to find out what it all means: “Despite ‘Brexit means Brexit’ mantra, things are not so simple as debate rages on whether UK should have a hard or soft exit”. [26 July]
- Diane Nicol, Outlaw.com: BREXIT: Employment law implications of the UK’s vote to leave the EU: “Although much of the UK’s employment law stems from the EU, we are unlikely to see a ‘bonfire of EU regulations’ as a result of the recent Brexit vote.” [26 July]
- Jake Rylatt, UK Constitutional Law Association: The Irrevocability of an Article 50 Notification: Lex Specialis and the Irrelevance of the Purported Customary Right to Unilaterally Revoke: suggests that there are major difficulties in incorporating into Article 50 TEU the right unilaterally to revoke a notice to withdraw from Article 68 of the Vienna Convention on the Law of Treaties: extremely recondite stuff. [27 July]
- Sophie Shaw, Brexit Law: Brexit and the UK Constitution: summarises the presentations made by each of the panellists at the discussion on 21 July hosted by Brick Court Chambers and chaired by Clive Coleman. [25 July]
- Euan Smith and Joanne Hennessy, Outlaw.com: BREXIT: Practical steps to protect your workforce from future immigration law changes: recommends that steps be taken now to document and secure the immigration status of EEA nationals and their families as far as possible. [27 July]
- Stephen Tierney, UK Constitutional Law Association: Was the Brexit Referendum Democratic? “To conclude, given that the process was rigorously regulated with no voting irregularities or apparent breaches of funding or spending rules (a final audit by the Electoral Commission has not yet been published), the referendum outcome should be seen for what it is: a narrow but clear constitutional decision of the highest significance. It would be a democratic travesty for the result not to be accepted simply because many of us don’t like it.” [25 July]
- Philip Woolfe, Monckton Chambers: Supreme Court refers questions on free movement to the EU Court of Justice: “The Supreme Court today made its first reference to the Court of Justice since the EU referendum on one of the central issues in the referendum debate: the free movement of EU citizens who have committed crimes in the UK … The implications of the EU Court’s ruling on these questions for the UK’s ability to restrict the free movement of EU citizens is just one of the many issues that will need to be worked out as part of the Brexit negotiations.” [27 July]
UK Parliaments and the courts
- The House of Commons and the House of Lords are in recess. Both Houses will next sit on Monday 5 September.
- House of Commons Library: Briefing Paper CBP-7669: Brexit: What next for UK fisheries? “In 2014 fishing contributed £426 million to UK GDP and employed around 12,000 fishers. The implications of Brexit for fisheries are highly uncertain. The implications will depend on future negotiations with the EU and future UK Government policy”. [Back]
- 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 P 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 claim by 2 September. The two-day hearing will start on 15 October; 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.
UK: Non-legal issues
The Prime Minister seems inclined to play hardball in the forthcoming negotiations. The Guardian reports that at a press conference following her meeting with Italian Prime Minister Matteo Renzi she was asked whether the rights of the 600,000 Italians living in the UK could be protected after Brexit. She replied:
“I want to be able to guarantee their rights in the UK. I expect to be able to do that and I intend to be able to do that, to guarantee their rights. The only circumstances in which that would not be possible would be if the rights of British citizens living in other EU member states were not guaranteed.” [28 July]
EU non-legal issues
- EU Parliament: Petition No 0802/2016 by Robert Wasteney (British) “on the revocation of EU Citizenship rights without his consent and the possibility of preserving those rights for those UK citizens that choose to keep them”.
The Scottish, Welsh and Northern Irish dimensions
Michael McHugh reports on Red Box that a cross-community group of Northern Ireland politicians and human rights activists may mount a legal challenge to Brexit. The group has urged Theresa May to consider the peace process before triggering invoking Article 50. Its lawyers have written to Mrs May threatening to seek a judicial review before the High Court in Belfast, and ultimately before the CJEU, unless she addresses the legal obligations which, they say, she must meet, including gaining the consent of the Northern Ireland Assembly. According to the report, they said:
“These obligations include safeguarding the unique requirements of Northern Ireland constitutional law and statute, in particular the statutory recognition of the Belfast-Good Friday agreement and satisfying the requirements of EU law incorporated into the law of Northern Ireland.”
The Prime Minister and the Northern Ireland Secretary have been asked to respond within two weeks. The group says that triggering Article 50 should be authorised by primary legislation and that the legislation should require the consent of the Northern Ireland Assembly. [25 July]
- No 10: PM statement in Northern Ireland: 25 July 2016 “We’ve had very constructive talks – positive talks – this morning with the First Minister and the deputy First Minister. We concentrated on the impact of the referendum vote, Brexit means Brexit [???] but we will be making a success of it. I’m clear that the Northern Ireland Executive and the devolved governments will be involved in our discussions as we set forward the UK position.
- Nicola Sturgeon made a speech at IPPR Scotland in which she listed the five key interests that she will seek to protect during the coming months’ negotiations:
– Democratic interests: “the need to make sure Scotland’s voice is heard and our wishes respected.”
– Economic interests – “safeguarding free movement of labour, access to a single market of 500 million people and the funding that our farmers and universities depend on”.
– Social protection: “ensuring the continued protection of workers’ and wider human rights”.
– Solidarity: “the ability of independent nations to come together for the common good of all our citizens, to tackle crime and terrorism and deal with global challenges like climate change”.
– Influence: “making sure that we don’t just have to abide by the rules of the single market but also have a say in shaping them”. [25 July]
- YouGov & Reuters: Reuters reports the result of a YouGov poll [data summary here] which suggests that a majority of Scots would still prefer to remain in the UK: 53 per cent wanted to stay part of the UK and 47 per cent backed independence despite the fact that the Scots Remain/Leave vote was 62 to 38 per cent for Remain. [30 July]
Earlier posts on Brexit: