Another of our occasional updates of news and comment on Brexit.
The European Council met on 20 and 21 October. The main topics of discussion were migration, trade and Russia, including Russia’s role in Syria. However, it was inevitable that Brexit would come up, and in a subsequent report by President Donald Tusk to the European Parliament, he said this:
” … we were glad to welcome Prime Minister May at the European Council. She confirmed that the United Kingdom will invoke Article 50 of the Lisbon Treaty before the end of March next year. Consistent with our policy of no negotiations without notification, we did not discuss Brexit. However, given PM May’s confirmation that Article 50 will be triggered, let me recall the EU27 position of 29 June. We want as close relations as possible with the U.K. There must be a balance between rights and obligations. And the UK can continue enjoying access to the Single Market but it requires accepting all four freedoms.” [26 October: emphasis added]
Verbum sapienti – or, absent a wise man, to Boris Johnson and Liam Fox.
The UK Dimension
- Kenneth Armstrong, UK Constitutional Law Association: Bootstrapping Brexit: A European Rescue of the Nation State?: critique of the House of Lords European Union Committee’s arguments for close parliamentary scrutiny of Brexit: see below. [27 October]
- Paul Craig, Oxford Human Rights Hub: Brexit: Foundational Constitutional and Interpretive Principles: I, on the constitutional principles relating to Parliament’s voice in the Brexit negotiations and II, on the foundational principles that affect the interpretation of Article 50 TEU and whether or withdrawal can be revoked once Article 50 has been triggered. [27 & 28 October]
- John Finnis, Policy Exchange Judicial Power Project: Terminating Treaty-based UK Rights: argues that “the making and unmaking of treaties – and of the rights that can if Parliament so enacts be derived from such treaties – is foreign affairs, a field in which decisions of great moment can and often should be made without requiring, under our constitution, any Parliamentary pre-authorization or advance approval by legislation.” [26 October]
- George Peretz QC, Monckton Chambers: Judge Baudenbacher’s speech on whether the EEA is an option for the UK: summary of the main points of a speech by the President of the EFTA Court on the EEA/EFTA option: the full text of his speech is available here. [1 November]
- House of Commons Women and Equalities Committee: Inquiry on the implications of leaving the EU on equalities legislation and policy in the UK.
- House of Commons Environmental Audit Committee: Oral evidence: The Future of the Natural Environment after the EU Referendum, HC 599 In her oral evidence to the Select Committee, the Right Hon. Andrea Leadsom MP, Secretary of State, Department for Environment, Food and Rural Affairs stated that up to a third of EU environment-related laws cannot be cut and pasted into UK law; and despite promises that the “Great Repeal Bill” would retain all existing environmental law, a significant part of it would not be “nationalised” due to “technical issues”. [25 October 2016]
- House of Lords European Union Committee: Brexit: parliamentary scrutiny, 4th Report of Session 2016-17: unsurprisingly, calls for more of it: “Parliament should not seek to micromanage the negotiations” but “we do not regard the principle of accountability after the fact … as a sufficient basis for parliamentary scrutiny of the Brexit negotiations.”
- Joint Committee on Human Rights: What are the human rights implications of Brexit?: Written evidence from the Equality and Human Rights Commission: argues that “There are several ways in which the protection afforded by the EU Charter is stronger than that available under the Human Rights Act 1998.”
In the courts
- R (Hardy) v Prime Minister And First Lord Of The Treasury [CO/3527/2016]: there was a two-day hearing on 15 & 16 October.
- R (Dos Santos and M) v Secretary of State for Exiting the European Union [CO/3809/2016 & CO/3281/2016]: the Divisional Court heard oral argument on 13 & 17 October. The Courts and Tribunals Service has published uncorrected full transcripts of the proceedings: 13 October, 17 October and 18 October and Robert Craig of the LSE has posted helpful summaries on the UK Constitutional Law Association blog: day 1 here, day 2 here.
- McCord, Re Judicial Review  NIQB 85: Maguire J rejected the challenges to Brexit brought by Raymond McCord and a cross-party group of MLAs: we noted it here: leave to appeal was granted on four of the five grounds of challenge, but not on the contention that, as a result of the Good Friday Agreement, Article 50 TEU could not be triggered without the consent of the people of Northern Ireland. Ciaran O’Hare of McIvor Farrell Solicitors, representing Raymond McCord, subsequently told Irish Legal News that Mr McCord proposed to appeal to the Supreme Court and provisional dates had been set for a Supreme Court hearing in early December.
The Scottish, Welsh and Northern Irish dimensions
- Paul Daly, Administrative Law Matters: Brexit, Strand 1: Re McCord  NIQB 85: analysis and comment. [28 October]
- Rosalind English, UK Human Rights Blog: Belfast court dismisses Brexit challenge: “delivers something of a body blow to the argument that the use of the prerogative power is inappropriate in the Brexit context.” [30 October]
- Nicki Georghiou and Angus Evans, SPICe: Brexit: the impact on equalities and human rights: briefing from the Scottish Parliament research and information unit. [26 October]
- Steve Peers, EU Law Analysis: Scotland and Brexit: Brave Heart or Timorous Beastie? is EU single market participation possible if a) Scotland stays in the UK, and b) the UK as a whole is not in the single market any more? [13 October]
- Scottish Parliament Culture, Tourism, Europe and External Relations Committee: The EU referendum and its implications for Scotland: inquiry home page – includes links to published written submissions.
Earlier posts on Brexit