Tag Archives: revocability

The phoney war is over. Theresa May has triggered Article 50. The clock is ticking. But clarity and legal certainty remain elusive

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School)

In her letter to Donald Tusk the Prime Minister outlined the UK’s starting position in negotiations with the EU. The EU Council of Ministers responded by producing draft negotiating guidelines (to be confirmed by the European Council at the end of April). These guidelines create the framework within which negotiations on withdrawal, and those on the future relationship between the UK and the EU, will occur. Meanwhile, a White Paper on the Great Repeal Bill was presented to Parliament, promising on the one hand to repeal the European Communities Act (ECA) and end the supremacy of EU law in the UK, and on the other to convert the acquis communautaire into UK law, so that ‘EU-derived rights’ (as we will need to get used to calling them) will, as far as possible, be unaffected.

The opening exchanges between the UK and EU have generated a lot of comment. Much of it has focused on the unlikely subject of Gibraltar (Michael Howard’s crass evocation of the Falklands conflict will have done nothing to lower simmering tensions). In relation to the White Paper, most attention has been devoted to the role of Parliament and the devolved assemblies. Rather less attention has been paid to many of the EU law aspects. In this short note, I focus on those. I first consider what new light has been shed on the way in which the Article 50 negotiations will proceed, drawing attention to the host of issues which remain unanswered. I then consider the EU law questions raised by the repeal of the ECA, and the conversion of the acquis into UK law. Michael Ford has already commented on this blog on the applicability of judgments of the European Court of Justice in the post-Brexit era; so there is no more on that subject here.

My overarching concern is that the Government, in particular in the White Paper, has failed to provide a clear sense of the size of the task which lies ahead. It is impossible to know whether this is because the Government itself does not appreciate the magnitude of the challenge, or because it is trying to conceal the difficulties. The Government has, for months, struggled to articulate just what Brexit might mean, and has made a series of disparate promises which a range of different constituencies have, if so minded, been able to rely on, or cling to. It will now start making hard choices. It has not prepared the ground well. Continue reading

Reflections on the ‘Three Knights Opinion’ and Article 50 TEU

By Miss Rosie Slowe LLM, Research Collaborator (University of Bristol Law School).

On 17 February 2017, Bindmans LLP published an Opinion that it had solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration, not least because of the constitutional significance they pose.

The Opinion was asked to address three questions: whether it was a ‘constitutional requirement’, within the meaning of Article 50(1), that Parliament authorise the final terms of any deal reached with the EU; whether the UK is able to validly notify its intention to withdraw from the EU, pursuant to Article 50(2), subject to such a requirement; and the legal consequences if that requirement is not satisfied. It is submitted, for reasons that will become apparent, that the latter question of consequence is effectively answered by examining the possibility of conditionality being attached to notice under Article 50, and this post accordingly considers the two issues together. Continue reading

Article 50, the Supreme Court judgment in Miller ~ and why the question of revocability matters more than ever

By Miss Rosie Slowe LLM, Research Collaborator (University of Bristol Law School).

With the Supreme Court having ruled on 24 January 2017 that Parliament must have a say in the triggering of Article 50 TEU, the ensuing debate regarding the process for exiting the EU has revolved around what is politically considered the most desirable ‘type’ of Brexit, and whether MPs can restrict the Government’s negotiation position. This post puts forward the hypothesis that such debates may be irrelevant because, in the event that negotiations fail, the UK has no guaranteed input on the terms of its withdrawal from the EU. At the heart of this problem is the still unanswered question whether an Article 50 notification is revocable (Prof Syrpis).

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court rejected the Government’s appeal and upheld the High Court’s ruling that the royal prerogative cannot be relied on to trigger Article 50.  Rather than reliance on executive power, an Act of Parliament is required to authorise ministers to give notice of the UK’s intention to withdraw from the EU. This is based on the premise that such notification under Article 50(2) would inevitably, and unavoidably, have a direct effect on UK citizens’ rights by ultimately withdrawing the UK from the EU. However, this assumption warrants exploration. Continue reading