BREXIT: Part 2

This post has been contributed by Hilaire Barnett, Public law tutor for Undergraduate Laws.

As noted in Part 1 of this blog, leaving the EU requires that legislation is in place to preserve existing EU law within the UK.  This was achieved under the European Union (Withdrawal) Act 2018.  The Withdrawal Act:

*  repeals the European Communities Act 1972  from the date of the UK’s departure from the EU (section 1);

*  converts existing EU law into domestic law to ensure certainty and continuity.  The UK Parliament and devolved legislatures will then be able to amend the law in line   with domestic requirements); and preserves UK laws which have been passed to implement EU law (sections 2 – 4);

*  creates powers to make secondary legislation to enable corrections to be made to    laws which would otherwise be unworkable  (for example, an EU law might require  consultation with the Commission or some other EU body which would be         inappropriate after leaving the EU) (section 8);

*  maintains the current scope of devolved decision making powers in areas         currently governed by EU law (section 12).

Sections 5 and 6 deal with the question of legal supremacy.  Section 5 provides that ‘the principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day’ (but continues to apply to the interpretation of EU law made before exit day).  On rulings of the Court of Justice of the EU (CJEU) section 6, in part, provides that courts or tribunals are not bound by decisions made on or after exit day and that there can be no references made to the CJEU on or after exit day.

Europe and United Kingdom Handshake Bilateral talks

Under the terms of the EU (Withdrawal) Act 2018, any negotiated settlement has to be approved by the House of Commons as a pre-condition to leaving the EU.[1]  The vote was originally scheduled for 11 December, but was postponed in light of severe political opposition.  When the vote took place on 15 January 2019 the House of Commons rejected the Agreement by a majority of 230 votes (432 against, 202 in favour), with more than one third of Conservative MPs opposing the Agreement.[2]

The Leader of the Opposition then tabled a motion of no confidence in the government under the Fixed-Term Parliament Act 2011,[3] which if it had succeeded could have led to a General Election:  an outcome favoured by the Leader of the Opposition. The government survived the vote by 325 to 306.

In a further Brexit vote on 29th January the Commons authorised the government to seek a compromise on the backstop from the EU. However, at the beginning of February 2019 the way forward on Brexit remains unclear.  Unless a deal is agreed before 29th March, by law the UK will exit the EU without a deal.  If this happens there will be no transition period in which to agree future relations and to make all the necessary administrative and legislative changes required as a result of leaving.  It is possible that the leaving date could be postponed to avoid this outcome and although this requires the agreement of other Member States, there are indications that it would be given.

There has been political pressure to move towards a ‘softer Brexit’ which keeps the UK closely aligned to the EU, perhaps by following the Norway model.  This, however, would be unacceptable to many because it would entail continuing to accept free movement of people and would prevent the UK from entering into its own trade agreements with non-EU countries:  two key features supported by Brexiteers .  There has also been political pressure for a second referendum to be held.  The government currently refuses to countenance this, arguing that it would undermine the binding nature of the 2016 referendum.  To comply with the requirements of the Political Parties, Elections and Referendums Act 2000 a second referendum would require primary legislation, a 12-week period for the Electoral Commission to test alternative questions and a minimum 10-week campaign period.   As a result,  it is impossible for a referendum to be held prior to the current 29th March exit day, unless that date is postponed.

It is theoretically possible that the UK could cancel the Article 50 notification and remain a member of the EU, as the Court of Justice (CJEU) confirmed in Wightman and Others v Secretary of State for Exiting the European Union Case C-621/18.  However, the government has rejected any suggestion that this might happen and any revocation would need to be ‘in accordance with the UK’s constitutional requirements’, which — post Miller — would require primary legislation that Parliament would be unlikely to pass.   Revoking  Article 50 could not be used as a tactical means of temporarily extending negotiations with the EU:  the CJEU emphasised in Wightman that any revocation had to be unconditional .

The search for a Brexit agreement acceptable to the Commons continues: the next significant Brexit vote is scheduled for 14 February.



[1] Section 13 sets out the requirements.

[2] The Prime Minister later announced that she would return to Brussels to seek a fresh solution to the backstop issue, only to be rebuffed by the EU which stated that there could be no renegotiation of the Withdrawal Agreement of which the backstop arrangement is a crucial part.

[3] Section 2 of the Fixed-term Parliaments Act provides that if a government loses a vote of no confidence, there is a 14-day period in which an alternative government may be formed.  If the Commons then votes that it has confidence in that government, the new government will take office without the need for a General Election.

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