Another of our occasional updates of news and comment on Brexit.
The UK Dimension
“So what will Brexit really mean?” asks The Economist – and suggests that the answers so far are pretty vague. On 5 September, David Davis, Secretary of State for Brexit, told the Commons that it meant leaving the EU and taking back control of borders, laws and taxpayers’ money:
“Yet when asked specific questions—Would Britain quit the EU’s single market? What migration controls would it seek? Would it stay in Europol? When would negotiations start?—he gave only vague answers.”
Moreover, when she was in China for the G20 summit the Prime Minister “disavowed several pledges made by Brexiteers before the referendum”: an Aussie-style points system for EU migrants and Leavers’ promises to transfer saved EU budget payments to the NHS or scrap VAT on fuel bills.
Sunday 2 October marks 100 days since Britain voted to leave the EU, (but not the Single Market), and In that period it has not been possible to sort out the relatively simple matter over which of the Brexit ministers has the keys to Chevening House. On the more complex issues, we don’t appear to be very much wiser now than we were at the start of the process. Politically, some useful pointers may be given at the Conservative Party Conference in Birmingham, 2-5 October, but we suspect that much of the strategic internal party manoeuvring will have taken place before 14:30 on Sunday and the Opening Session “Global Britain: Making a success of Brexit; speakers: The Prime Minister; Secretary of State for Exiting the European Union; Secretary of State for International Development; Secretary of State for Foreign and Commonwealth Affairs. Addressing the legal issues is another matter.
UK Parliament and the courts
- Bingham Centre for the Rule of Law: Briefing Paper: Parliament and the Rule of Law in the Context of Brexit [29 September].
- Brick Court Chambers, Brexit Law: Parliamentary inquiries into legal implications of Brexit [19 September].
- Richard Gordon QC, Butterworths Journal of International Banking and Financial Law: The UK courts after Brexit: considers two core questions which will need to be addressed by the UK courts in their treatment of the EU law that is preserved after Brexit – its legal status and the extent to which the common law may be reshaped by the experience of EU membership – and suggests that “any real conflict between common law and EU law principle after Brexit would result in a weakening of EU principle rather than an extension of the common law to encompass EU principle” [26 September].
- House of Lords Select Committee on the Constitution: 4th Report of Session 2016–17: The invoking of Article 50: concludes  – unsurprisingly – that “Parliament and the Government should, at this early stage, take the opportunity to establish their respective roles and how they will work together during the negotiation process. The constitutional roles of each—the Executive and the Legislature—must be respected, beginning with parliamentary involvement and assent for the invoking of Article 50” [13 September].
- Brian Christopher Jones, OxHRH Blog: Did Brexit Save the HRA 1998?: suggests that the majority for Brexit “may have—at least for the time being—saved the HRA 1998” [26 September].
- Jill Rutter and Hannah White, Institute for Government: Planning Brexit: Silence is not a strategy: argues that the Government will need an extra 500 staff, costing up to £65 million a year, to plan its approach to Brexit, that turf wars between ministers have wasted valuable time and energy, that ministers need to be clear how they intend to engage beyond Whitehall and that Whitehall must offer ministers its best shared analysis of their options to provide a robust basis for the political choices they will need to make – on short, no great surprises.
- R (Hardy) v Prime Minister And First Lord Of The Treasury [CO/3527/2016]. The Government had to file a detailed response to the claim by 2 September: the two-day hearing will start on 15 October.
- R (Gina Miller and Deir Tozetti Dos Santos) v Secretary of State for Exiting the European Union [CO/3809/2016 & CO/3281/2016]: the People’s Challenge Interested Parties released its skeleton argument for the Article 50 TEU litigation to be heard in the Divisional Court on 13 and 17 October. Parts of it were redacted because the Government had not agreed to publication of the content of the Secretary of State’s detailed grounds. The skeleton states that:
“2. No party argues that the result of the referendum on 23 June 2016 was itself a ‘decision’ that the UK should withdraw from the EU, which would satisfy those ‘constitutional requirements’. Nor does any party suggest that the judiciary can or should decide whether the UK should withdraw from the EU. The contested issue is whether constitutional authority to make that decision rests with our elected Parliament, or with government ministers in exercise of residual Crown prerogative powers. It is this fundamental constitutional question as to where power lies which the Court is asked to resolve.
3. This litigation is not about:
a. whether or not the UK should decide to withdraw from the EU; or
b. how or when notification of any such decision should be given to the European Council.”
- Re an application by Raymond McCord for Judicial Review and Re an application by Steven Agnew and Ors for Judicial Review came before Maguire J in the High Court in Belfast on 23 September. It was agreed that a Notice of Devolution should be served on the Attorney General, John Larkin QC. At the preliminary hearing on 27 September, Maguire J rejected arguments that concerns about the impact of Brexit on Northern Ireland’s peace process should be parked and dealt with at separate proceedings in London. He said that issues specific to Northern Ireland could “fall between the cracks” during actions due to come before the High Court in London. A final ruling on the issues to be tried would be made after the hearing on 4-5 October.
Rosalind English has posted a helpful piece on UKHRB summarising the arguments of one of the groups supporting the claimants in R (Gina Miller): Arguments in the referendum challenge now available.
- Ross L Denton, Baker & McKenzie Brexit: European Commission sets up Article 50 Task Force [23 September].
- David Allen Green, Jack of Kent: The many hurdles of Brexit – a short summary post: sets out the “hurdles” to be jumped – roughly in order of height [26 September].
- Martin Howe QC, Politeia: How to Leave the EU: Legal and Trade Priorities for the New Britain.
- Scott Wortley: What happens to statutory instruments made under the European Communities Act 1972 if the 1972 Act is repealed?: a good question to which (as you might guess) the answer is by no means simple [27 September].
- Institute for Government, Briefing Paper: Planning Brexit: Silence is not a strategy: “In this paper we assess the Government’s progress towards establishing the model for which the Prime Minister opted: tasking two new ministries, DExEU and DIT, to deliver Brexit alongside the Foreign Office. We identify the likely on-going costs of the Government’s approach and what capability the Civil Service needs to support the Government to reach its initial negotiating position.” [28 September].
The Scottish, Welsh and Northern Irish (and Crown Dependency) dimensions
Independent.ie reported on 28 September that the Taoiseach, Enda Kenny, told the Dáil on its first day back after the summer break that he intended to host all-Ireland talks on the impact of Brexit in November, involving business people, members of civic society and political parties. Mr Kenny said that the June referendum result had sparked a great deal of confusion and uncertainty and was a matter of the utmost seriousness and concern to Ireland’s interests.
Unsurprisingly, a Democratic Unionist Party spokesman told the Press Association that there was no need for new structures and that cross-border talks about Brexit could be carried out within existing arrangements. Northern Ireland First Minister and DUP leader Arlene Foster had already rejected suggestions of an all-island Brexit forum at the last North South Ministerial Council meeting at Dublin Castle in July.
Separately, Northern Irelands’s Finance Minister, Máirtín Ó Muilleoir (Sinn Féin), told the Dáil’s Implementation of the Good Friday Agreement Committee that forcing Northern Ireland out of the EU would “breach the spirit and letter of the Good Friday Agreement”.
Although the document The Channel Islands and the European Union produced by the Channel Islands Brussels Office is dated 21 March 2016, it is important to note that “the Islands are part of the Customs Union and are essentially within the Single Market for the purposes of trade in goods, but are third countries (i.e. outside the EU) in all other respects”.
Earlier posts on Brexit