Brexit Basics 7: update 20th August

Another of our occasional updates of news and comment on Brexit.

The UK Dimension

Ana Bobic and Josephine van Zeben, UK Constitutional Law Association: Negotiating Brexit: Can the UK Have Its Cake and Eat It?: in a word, “No”: the authors conclude that “Any agreement with the EU must deal with the free movement of persons while attempting to maintain free trade in services and goods … this bodes ill for an EEA-light option (without free movement of goods) and makes the WTO route appear more realistic.” [2 August]

Sionaidh Douglas-Scott, Constitution Unit, UCL: What does ‘Brexit means Brexit’ mean (if anything)?: suggests that “there are no legal or political reasons why Brexit negotiations must take any particular direction. The electorate voted only to leave the EU, not for any particular exit agreement.” [16 August]

Carl Emmerson, Paul Johnson & Ian Mitchell, Institute of Fiscal Studies: The EU single market: the value of membership versus access to the UK, Report (R119): “If the UK were able to join the European Economic Area (EEA), we would enjoy near-full membership of the Single Market but likely be obliged to accept EU regulations and free movement of people and make a budgetary contribution. Obtaining membership of the Single Market without meeting these conditions would be unprecedented.” [10 August]

Robin Niblett, The World Today: Preparing for the UK’s Brexit Negotiation: the Director of Chatham House on the need for “a simultaneous, cross-referenced, multi-layered negotiation, however difficult and complex this process would be”. [5 August]

Jonathan Portes, LSE BrexitVote: How will we decide who can stay? The fate of EU migrants post-Brexit: suggests that the definition of “legal residency” is problematical and administratively complex: a possible (but not simple) solution would be to grant residence to those with a National Insurance number. [1 August]

BBC: EU citizens ‘left in limbo’, says Vote Leave MP Gisela Stuart: report that Gisela Stuart is to head a cross-party research project for centre-left think tank British Future on how to protect the rights of EU citizens resident in the UK after Brexit. She is quoted as saying that EU citizens in the UK have been “left in limbo” since the referendum. So no surprise there, then – perhaps she should have thought of that before advocating withdrawal in the first place. [16 August]

Oxford Public Law International: Updated Debate Map: Brexit: indexes analysis of and information about the legal consequences of Brexit, focusing specifically on the mechanics of leaving the EU and the impact on EU citizens in the UK and British citizens in the EU – as well as on trade, the environment, and human rights protection in the UK. The map also includes analysis of treaty withdrawal generally under international law and the extent to which obligations, particularly in the fields of human rights and trade, can be said to continue even after a state’s exit from a treaty. [9 August]

And for a bit of light relief…

Jonathan Lynn and Antony Jay: Yes Minister Brexit special: Sir Humphrey Appleby explains all. [7 August]

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.

Ian Duncan MEP: Short statement on the decision of the Environment Committee regarding rapporteurship of the ETS Phase IV reforms: “At the request of my colleagues on the Environment Committee I have agreed to continue in my role as rapporteur on the reform of the Emissions Trading System (EU-ETS iv), pending any change in parliamentary rules in relation to UK MEPs.” [6 July]

House of Commons Library Briefing Paper: Brexit and UK immigration and asylum policy: a reading list, CBP-7675 “This reading list collates some recent commentary on the implications of the EU referendum vote for future UK immigration and asylum policy, and links to some related Library briefings.” [2 August]

House of Commons Library, Research Briefing: Referendum campaign literature During the EU referendum campaign there were complaints about the claims put forward in campaign literature and calls for an independent body to oversee the truthfulness of claims made during political campaigns. [8 August]

Home Affairs Committee: Europe-wide failure to anticipate and tackle “colossal” migration crisis “After a year-long inquiry, the Home Affairs Committee says EU action to address a crisis it should have foreseen has been ‘too little, too late’, with the EU-Turkey agreement a partial solution at best which raises serious humanitarian, human rights, logistical and legal concerns.” [3 August]

Monday 5 September, 4.30 pm, Westminster Hall: the debate, led by Ian Blackford MP, a member of the Petitions Committee, is on the motion “That this House has considered e-petition 131215 relating to EU referendum rules.” But whether agreed to or negatived, the motion is of no practical effect whatsoever.

The Department for Exiting the European Union has been given hour-long oral question sessions: the first is on Thursday 20 October. It has also published an organogram of its senior management team.

Legal action

The Queen on the application of Hardy v Prime Minister And First Lord Of The Treasury [CO/3527/2016]. The Government must file a detailed response to the claim by 2 September: the two-day hearing will start 15 October.

Raymond McCord lodged an application for judicial review at the Northern Ireland High Court on 11 August, contending that it would be unlawful to trigger Article 50 without a vote in Parliament and that withdrawal would undermine the UK’s domestic and international treaty obligations under the Good Friday Agreement and damage the Northern Ireland peace process: his first application for legal aid was turned down, but that decision was overturned on appeal. [17 August]
Northern Ireland cross-community group: the BBC reports that Jones Cassidy Brett Solicitors has lodged papers at the Northern Ireland High Court on behalf of a cross-community group including Green Party leader Steven Agnew, SDLP leader Colum Eastwood, Sinn Féin’s John O’Dowd, former leader of the PUP Dawn Purvis, disability rights activist Monica Wilson and the Committee on the Administration of Justice human rights group. [20 August]

The “People’s Challenge”: The Independent reports that “Theresa May’s timetable for negotiating Britain’s withdrawal from the European Union could be derailed by a High Court challenge in October”: pro-EU campaigners who claim that Parliament must approve the start of formal talks have raised £32,000 towards their £50,000 initial legal costs through crowd-funding. [20 August]

The Scottish, Welsh and Northern Irish (and Crown Dependency) dimensions

Paul Bowen QC, Brexit Law: Brexit and Jersey, Guernsey and the Isle of Man: “It remains moot whether and at what stage the Brexit process would require the UK to seek the views not only of the governments but also of the legislative assemblies of each of the Crown Dependencies.” [3 August]

Kate Devlin, The Herald (£): No 10 shoots down suggestions of a 2017 indyref: reporting that the Prime Minister “believed Scots had made clear their views on the Union ‘only a couple of years ago'” – which is hardly a surprise, given that she said the same thing in mid-July. [8 August]

Earlier posts on Brexit: