This article coincides with UK notification of its intention to withdraw from the EU. It follows on from two earlier articles published on the Brexit hub: Brexit ‘rough’ or ‘smooth’?[1], published just before the Referendum vote; and Brexit means Brexit – but what does Brexit mean?[2], published shortly after Theresa May became UK Prime Minister. The issues identified in those articles remain relevant as the negotiation process begins.
Since then, the UK Government has been forced to reveal at least part of its strategy by a combination of intensive scrutiny by Parliamentary committees and the judgments of the Divisional Court and Supreme Court in R (Miller and Santos) v. Secretary of State for Exiting the European Union.[3] Although the details of the UK[4] (and EU)[5] negotiating strategies are still unclear in important respects, the two central planks of the UK opening position appear to be (i) abolition of the enforceable rights to free movement of non-UK EU nationals; and (ii) ending the ‘jurisdiction’ of the Court of Justice of the European Union in the United Kingdom.[6]
In practice, that will imply
- rejecting the direct application and supremacy of EU law
- ending UK influence over EU law
- destroying EU law rights of UK nationals throughout the EU
- During the Referendum campaign, there was extended discussion of the nature of the alternatives that might feasibly be available to the UK were it to vote to leave the EU. Since the vote to leave, that debate has naturally intensified, culminating in the speech of the Prime Minister on 17 January 2017[7] and the publication of the Government White Paper, on 2 February 2017: ‘The United Kingdom’s exit from and new partnership with the European Union’, Cm. 9417.[8]
- This short paper considers the implications of the UK’s starting position as at the date of notification, 29 March 2017 – whether that starting position is tenable remains to be seen.
Rejecting direct application and supremacy of EU law
- The logic of the UK starting position must be the repeal or radical amendment of section 2 of the European Communities Act 1972, which incorporates the fundamental EU law doctrines of direct applicability and supremacy into UK domestic law.
- This is the most fundamental element of the UK’s position and will automatically achieve the two core objectives identified by the Prime Minister, to bring an end to the enforceable rights of free movement of EU nationals and to the ‘jurisdiction’ of the Court of Justice in the United Kingdom.
- Repealing or amending section 2 would end enforceable EU law rights of free movement (and all other enforceable EU law rights). It would also end the automatic application of rulings of the Court of Justice within the United Kingdom. While the role of the Court of Justice under the EU Treaties as the ‘ultimate arbiter’ of EU law is independent of UK membership of the European Union and will continue, that role would be automatically and drastically reduced in significance for the United Kingdom if the doctrines of direct application and supremacy no longer applied.
- Although the details of the ‘Great Repeal Bill’ have not been published at the time of writing, it is well known that the intention is to abolish EU law as an independent source of rights and obligations within the United Kingdom while maintaining the substance of EU law, so far as possible, pending amendment or repeal, so as to avoid a legal ‘cliff edge’ on UK withdrawal.
- In addition, whereas rights conferred on EU (and therefore UK) nationals and businesses, including protections of equal treatment and effective judicial protection, are and will remain directly enforceable by the national courts for so long as the UK remains a Member State (and would be protected against implied repeal), no such guarantees will exist for equivalent rights incorporated into UK domestic law with effect from the date of withdrawal.
- It is not yet clear how this is to be managed, and in particular what, if any, transitional protections will be provided by Parliament for the enforcement of EU legal rights and obligations that exist as at the date of withdrawal. This is likely to become a critical issue as that date approaches, particularly if negotiations break down between the UK and the EU.
- Overall, the intended approach gives rise to a concern that, far from leading to a recovery of ‘control’ for the UK Parliament or the British people, the effect will in reality be to transfer wide legislative and administrative powers from the EU to the UK Government, a major transfer of power to the UK State. The legislative approach adopted to the triggering of Article 50, with an unfettered power granted to the Prime Minister to act as she sees fit, gives no comfort in that regard.[9]
Ending UK influence over EU law
- One inevitable consequence of UK withdrawal, including rejection of the central doctrines of direct applicability and supremacy, will be the ending of UK influence over the future development of EU law. The EU would clearly not permit the UK to have influence over rules that it was not committed to respect.
- As such, the UK would no longer form part of the EU legislature, either in the Commission or the Council or the Parliament. It would have no part in the development of EU policy, or in the administration or enforcement of EU law. There would be no UK-nominated judges or advocates-general at the Court of Justice. The UK would have no right to participate in the procedures of the Court of Justice. UK Courts would not have the option of referring difficult issues of EU law to the Court of Justice.
- Again, this does not play well against the ‘control’ agenda, given the extent of integration between UK and EU law and the likelihood that the UK would want to participate in at least some EU schemes, and therefore to abide by their rules, over which the UK will in future have no influence or control.
Destroying rights of UK citizens
- The focus of the debate during and since the Referendum has been on the ending of rights of non-UK EU nationals and businesses in the United Kingdom – that is indeed an important question, going far beyond the question of whether current residents would be permitted to remain after UK withdrawal. However, at the political level, destroying the EU law rights of non-UK EU nationals is clearly regarded as a positive reason for withdrawal from the EU in at least some quarters.
- However, there is an equally if not more important aspect of UK withdrawal that has received little or no attention to date, the wholesale destruction of EU law rights for UK nationals and businesses throughout the 28 Member States of the European Union. That will soon become an urgent priority for the United Kingdom.
- There has been some talk of the EU seeking to ‘punish’ the UK and its citizens and businesses for having the temerity to wish to leave the EU. That seems wide of the mark. It might be more appropriate to consider the position of a former member of a golf club faced with significant green fees if it wishes to continue to play golf; or of UK football clubs seeking to play in the UEFA Champions League while insisting on playing by their own rules and adjudicated by their own referees. If the UK wishes to participate in the EU club, even on amended or more limited terms, it is very likely to have to pay for the privilege and to abide by the rules of the club.
[1] https://www.matrixlaw.co.uk/resource/brexit-rough-smooth-rhodri-thompson-qc/
[2] https://www.matrixlaw.co.uk/resource/brexit-means-brexit-brexit-mean-rhodri-thompson-qc/
[3] [2017] UKSC 5.
[4] For the UK White Paper published on 2 February 2017, see: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf
[5] For an outline of the EU’s likely starting position, see the speech of Michel Barnier, Chief Negotiator for the European Commission, of 22 March 2017: http://europa.eu/rapid/press-release_SPEECH-17-723_en.htm
[6] For a more detailed discussion of the likely future relationship between the UK and the Court of Justice, see https://www.matrixlaw.co.uk/wp-content/uploads/2017/03/The-UK-and-the-CJEU-after-UK-withdrawal-Rhodri-Thompson-QC-20-March-2017-2.pdf.
[7] https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech
[8] For the UK White Paper published on 2 February 2017, see: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf
[9] See section 1 of the European Union (Notification of Withdrawal) Act 2017: http://www.legislation.gov.uk/ukpga/2017/9/contents/enacted.