By Rose Slowe LLM, Honorary Research Fellow, University of Bristol Law School. Author on EU Law and Barrister at Foundry Chambers.
Leaving the EU without a deal on 29 March 2019 is not the “legal default”, as has been repeatedly, but wrongly, asserted. It would, in fact, be in violation of the supreme law at both the domestic and supranational level, namely the UK constitution and EU Treaties (or more broadly, the General Principles of Community Law which includes ECJ jurisprudence alongside the Treaties). As such, without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked.
Article 50(1) of the Treaty on European Union (‘TEU’) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The Supreme Court, the highest judicial authority responsible for interpreting our unwritten constitution, confirmed in R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5, that, as a matter of UK constitutional law, only an Act of Parliament can authorise, and give effect to, changes in domestic law and existing legal rights. The Miller litigation, while lacking in a critical respect, as discussed elsewhere, was an essential source of legal certainty in terms of our constitutional requirements and, specifically, the doctrine of parliamentary sovereignty as it pertains to Brexit; judicial clarification at the highest level of legal authority. Of significance, the majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, removing it, wholly or in part, is a matter on which Parliament has to legislate. (more…)
By Dr Clair Gammage, Lecturer in Law (University of Bristol Law School).
In the Prime Minister’s speech of 17 January 2017, in which the Brexit trade negotiation strategy was announced, Theresa May was keen to reassure the world that a ‘Global Britain’ would rise from the ashes of the now infamous June referendum. Outlining twelve core objectives to be pursued in the process of withdrawal from the EU once Article 50 has been triggered, May revealed little substantive detail about what the UK wants from the EU and, indeed, from the rest of the world. Underpinning the strategy is the first objective of “certainty” – certainty for industries, for workers, and for the general population. We now know that the European Communities Act will be repealed but EU law will be translated into the UK legal system. Of course, it is then the choice of Parliament to decide which laws stay and which laws go – presumably depending on the extent to which those laws reflect our Global British values according to the legislature. Will the first objective of “certainty” allay the fears of industry, the public sector, and the general population? The answer to this question rests entirely on the way in which the negotiations are handled from this moment on. So, what does the speech tell us in terms of the post-Brexit trading strategy?
There are two key aspects of the trade strategy going forward: withdrawal from the EU and a renegotiation of our terms with the EU; and, the UK’s trading relationship vis-à-vis the rest of the world which will take the form of WTO compatible free trade agreements (FTAs). FTAs are economic spaces in which the countries to the arrangement reduce tariffs on substantially all the trade that falls under the agreement but each individual member retains its own external tariff with other countries on those goods. The first and second limbs of the trade strategy are interrelated and once Article 50 has been triggered a new form of foreign policy-making that I have (rather tongue-in-cheek) coined “Global Britain external relations law” will begin to manifest. (more…)
Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at ). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at ), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at -), the Crown cannot, without the approval of Parliament, give notice under Article 50. (more…)