A snapshot of Brexit legalese

The House of Commons has backed Theresa May’s timetable on Brexit by 461 to 89 votes. Article 50 will be triggered by the end of March 2017, albeit Parliament’s support does not make May’s invocation mandatory. 

At the same time, the Brexit Supreme Court battle rages on and you’d be forgiven for being confused as to how the two events relate. Simply, in its 2015 general election manifesto, the Conservative Party pledged that:

“We will negotiate a new settlement for Britain in the EU. And then we will ask the British people whether they want to stay in on this basis, or leave. We will honour the result of the referendum, whatever the outcome.”

Clear enough, save for the fact that the High Court determined in November that the UK Government couldn’t trigger Article 50 without consulting Parliament. The case was brought by a group of campaigners, led by pro-Remain fund manager Gina Miller and the Government’s appeal continues in the Supreme Court. 

What’s at stake is not just the right of the UK Government to invoke Article 50 unilaterally, but a very test of who the ‘we’ is in Conservative’s manifesto.

The Vienna Convention on the Law of Treaties (in force since 1980) defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

In the UK political system, there are two issues which have lead to the current legal wranglings over how best to implement a Brexit. 

Firstly, according to constitutional practice in the United Kingdom, Parliament has no formal role in treaty-making as the power to do so is granted to Her Majesty’s Government which acts on the behalf of the Crown (the clue being in the name). 

In the House of Commons, the Ponsonby Rule convention held that international treaties were placed before Parliament for 21 days before ratification (this consultation was enshrined into law by the Constitutional Reform and Governance Act 2010). It remains limited and Parliament can only overcome the will of the Government to conclude a treaty by expressing disapproval, relying on political pressure to change the mind of ministers or by withdrawing its confidence from them. The 2010 Act does not state how Parliament should be consulted and makes no stipulations that a debate or vote or Committee scrutiny is required. 

Secondly, the encompassing nature of the EU complicates international treaty-making. When a treaty requires a change in UK legislation or the granting of public money, Parliament may vote in its normal way to support or deny the required provision. EU treaties, therefore, require legislation for their implementation in the UK and are subject to Parliamentary scrutiny. The Treaty of Rome, for example, is given effect in the UK by the European Communities Act (ECA) 1972. 

To give Brexit life requires not just the invocation of Article 50 to withdraw from the European Union, but a consideration of just what the implications of doing so will be on the 40 years of EU influence on UK law. Leaving the EU would require the repealing of ECA. There are two crucial provisions here: Section 2(1) incorporates the key principles of supremacy and direct effect into UK law; ‘supremacy’ means how EU law takes precedence over UK law and ‘direct effect’ means EU rights can be enforced in UK courts.

The second key provision is s.2(2) which has allowed for hundreds of EU Directives to be implemented by Statutory Instrument (SI) which is a quicker and easier process of bringing into force or altering legislation without passing another Act. Both provisions would need to be repealed, but it is the latter which would cause the most issues as SIs would no longer have the force of law behind them leaving a commercial and legal black hole. It is therefore not just a case of leaving, but of ungluing a house of cards while keeping it upright. 

Referenda are a relatively new phenomenon to the UK. Nevertheless, according to a House of Lords Constitution Committee conclusion referendums “cannot be legally binding in the UK, and are therefore advisory.” Even if they’re not legally binding, they take a snapshot opinion of the British people but without an opportunity to ask a follow-up confirmation question after seeing the consequences.

What is clear, however, is that like a patient who has voted to get better, it’s lunacy, improper and downright unprofessional to deny the consultation of, prognosis by and treatment from professional doctors who have decades of experience. Why would the Government want to deny the expertise, opinion and voice of 650 full-time MPs elected to represent the very people whose will they now want to implement?

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