The Brexit Great Repeal

Bill a rather
cunning treason fraud
Posted on October 10, 2016 by alrich

.date

Note: The High Court has been unpersuaded by the sort

of arguments set out below and has now ruled that the
Government does not have power to issue its Article 50
notification. The post nevertheless remains relevant
regarding the background and possible political
implications of the judgment. The 3 November 2016
judgment is available here.
British Prime Minister Theresa Mays announcement of
a Great Repeal Bill to set the seal on Britains march out
of Europe has not received much good press (or good
blog, if thats a thing) among the legal pundits. No news
here, inevitable, really, bound to have happened at
some point this has been the general tenor of informed
opinion on the matter.
Yet for some reason informed opinion has failed to
recognise it as a remarkably clever wheeze that manages
to shoot a number of Opposition and Anti-Brexit foxes
with one twitch on the trigger. It has undermined the
legal case for giving Parliament a direct say on whether
Britain leaves the EU and helped shift the political
debate to whether Parliament should merely have
oversight of the process or a say in the final form
Brexit would take.
So Ed Milibands comments this week included this: It

would be a complete outrage if May were to determine

the terms of Brexit without a mandate from parliament.
There is no mandate for hard Brexit, and I dont believe
there is a majority in parliament for [it] either. This is
far from a demand for an In/Out vote for
parliamentarians before Article 50 notification of EU
exit is issued under Royal prerogative in March.
Brexit Secretary David Davies was at pains in his
statement this week (October 10) to point out that a vote
on the Great Repeal Bill will involve plenty of debate on
the issue but not offer MPs to vote against Brexit:
This Bill is separate issue to when Article 50 [notice of
EU exit] is triggered it [the Bill] wont take us out of
the EU.
The legal fox: severely wounded The Great Repeal
Bill strengthens the UK Governments position
in various of the cases in various of the courtrooms
around the country that seek to challenge Mrs Mays use
of the Royal Prerogative to issue the Article 50
notification. The prerogative powers are the residual
powers of the Crown (ie the monarch) that the
Government exercises without the say-so of
Parliament by the Government. They include treatymaking, and Britain entered the EU with the 1972 Treaty
of Accession not through a parliamentary vote. The
Government says the prerogative powers can be used
also to end the treaty and pull out of the EU.
The pro-Parliament argument against such use of the
prerogative can be summarised thus, and was so in a
University College London debate by Jeff King, co
author of what has become the leading blogpost (if thats
a thing) on the Article 50 debate:
Any purported exercise of prerogative power that

results in a necessary amendment, repeal or [rendering a]

dead letter of an Act of Parliament is unlawful (at about
26 minutes)
Acts of Parliament, as it were, trump prerogative. Thats
why Britain had all those civil wars, beheadings and the
Glorious Revolution in the 17th century (and one or two
crucial judicial statements in more modern times see
note on the Fire Brigades Union below).
So the pro-Parliament argument of those such as Mr
King (and others, many of whom are anti-Brexit) is that
the European Communities Act 1972, being an Act of
Parliament and setting out the legal path Britain was to
follow post-accession, ousted any prerogative power to
withdraw from the EU. The ECA cannot and must not be
impliedly repealed by an Article 50 notice only
Parliament can do that.
The problem with the argument is that Article 50 notice
would not repeal the ECA impliedly or otherwise (as
noted at length here: No backdoor Brexit exit). It would
stay in place, and have to stay in place, until at least
Britains final exit and possibly longer in an amended
state if Britain, for example, stayed in the European
Economic Area. Hence Mr Kings necessary
amendment, repeal or dead letter formulation. He is
saying that Article 50 notice would certainly
but contingently modify, repeal or render nugatory the
ECA some time in the future depending on how things
went. He takes the view that a necessary contingent
implied repeal is sufficient to render an Article 50 notice
issued under royal prerogative unlawful.
But now that we know from Mrs May that the Article 50
notice will not render the ECA a dead letter (if it ever
could have done), can it matter that the statute must

(necessarily) be amended/repealed as long as it is

amended/repealed by a new Act of Parliament?
Remember, the ECA is not a piece of legislation by
which Britain acceded to the EU that was done by the
1972 treaty shortly beforehand. What the ECA does is
oust Parliaments supremacy in regard to EU law; EU
law thus became British law according to EU
constitutional requirements, not British ones. Thats why
it must stay in place while Britain continues as a member
of the EU.
What will the judges say? The judges faced with the
repeal, amend, dead letter argument will presumably
see it as a proxy for the notion that Parliament must
have a vote on Brexit and reject that notion. They
may, nevertheless, feel that the Great Repeal Bill horse
should come before the Article 50 cart and so uphold the
pro-Parliament claim to that extent. As it stands we have
Mrs Mays promise of a Great Repeal Bill, but she seems
to want it after issuing the Article 50 notice. (Davies
was a little vague on the timing but said that the Bill
would be presented in the next parliamentary session
and would be debated in parallel with the European
negotiations over the succeeding two years.) That way
(and this is how she would shoot the Opposition and antiBrexit foxes) all parliamentarians would be pretty well
obliged to vote for it. After all, it guarantees continuance
of all EU rights (which is the minimum that pro-EU
people want) but leaves to the future their individual
repeal (which Brexiters will demand though see
Bonfire of EU rights to see the problems of this).
This worry about a loss of rights prompted Lord
Falconer, no Brexiteer, to plead only a fortnight before
her Repeal Bill announcement (BBC Radio 4s

Unreliable Evidence 14 Sept 2016) for a piece of holding

legislation so not a single EU right was lost. (He
certainly did not seem to see that such an Act would be
inevitable.) Well, now his lordship will get his legislation
and, such being the nature of the British constitution, he
will also have the benefit of being able to vote on it in
the House of Lords.
The important point, though, is that a parliamentary vote
on the ECA would not, under these circumstances, be a
vote for or against Brexit. That die will have been cast by
the Article 50 notice since we must assume the Bill
becomes an Act well after Article 50 is triggered.
So it seems unlikely that the judges will be able to use
concern over the repeal, amend, dead letter formula to
craft an argument for a straightforward parliamentary
vote, yea or nay, on Brexit. But they might take the view
that the EU referendum was not quite enough to allow a
prerogative act to sweep away British membership of the
EU with the flourish of one womans signature (see The
Thoburn point below).
Perhaps there would be a legal logic in saying that the
Great Repeal Bill should be passed before the Article 50
notice goes out. This would make the Bill quite a
different beast and a very confusing and complicated
one at that. Post-Article 50 notice, everyone would be
obliged to vote for it but pre-Article 50? Anti-Brexit
MPs and Peers would have some incentive to vote it
down using it as a proxy for a an In/Out vote. But, of
course, it would not actually stop Brexit with any finality
because the ECA was not an accession Act. It would
simply throw the whole thing back into the melting pot.
(In the event the judges sitting in the High Court did take
account of the cart/horse point, saying this:

[I]t is no answer to their case [ie that of Miller et al] to

say that some of them [EU rights] might be preserved
under new primary legislation, yet to be enacted [the
Repeal Bill], when withdrawal pursuant to Article 50
takes place. The objection remains that the Crown,
through exercise of its prerogative powers, would have
deprived domestic law rights created by the ECA 1972 of
effect. We also consider that the removal of the ability to
seek authoritative rulings of the CJEU regarding the
scope and interpretation of such rights would itself
amount to a material change in the domestic law of the
United Kingdom.)
An early general election? In the old days, if the
Government could not get a crucial piece of legislation
like this through Parliament, it could treat it as a matter
of confidence and ultimately the Prime Minister (using
the monarchs prerogative powers) could
have Parliament dissolved and go to the country. Now,
though, we have the Fixed Term Parliaments Act. It is up
to Parliament whether it wishes for a vote of no
confidence which would, if passed, initially give the
opportunity for a new Government to be formed within
14 days from the extant Parliament (FTPA S.2(3)).
Dangerously, for Mrs May, that might (but only might)
be a pro-EU Government prepared to scupper the whole
EU business.
The alternative is a dissolution vote requiring a twothirds majority of the whole House of Commons (FTPA
S.2(1) and (2). Labour, foolishly given its fractious state,
already seems willing to back such a vote, and so we
would have a Brexit election.
Mrs May might actually relish this, eyeing the 52 per
cent of voters who backed Brexit and campaigning as the

leader of the only party that can make it happen. She

would win, and such a clear mandate via the orthodox
constitutional means of a parliamentary democracy
would be wholly unassailable by interfering
unaccountable judges (and much would be made during
the election campaign, no doubt, about interfering
unaccountable judges).
So one way or another, there seems no escape for the
anti-Brexiters. They might be advised to slink into the
brake and down into their dens and hope to avoid Mrs
May a deadeye with the old Purdey.
Twitter: alrich0660
See also
No backdoor Brexit exit) a guide to the arguments on
whether Parliament has a say on Brexit Bonfire of EU
rights on disturbing proposal to give Government
ministers the right to repeal EU laws.
Spinning Hugo considers the High Court judgment here:
How the Government Lost and insists that, if correctly
argued, the Government should win an appeal.
The Miller/Santos case The following exchanges in the
first day of this case (Oct 13) included this between Lord
Justice Sales and Lord Pannick QC (for Miller) at page
54/55 of the draft transcript:

SALES LJ: Am I right in thinking that you say that the

effect of the argument for the government would be that
there wouldnt need to be a repeal of the 1972 Act or
section 2 of it, it is just that the content of the obligation
in section 2, EU rights, would fall away, because they
would cease to be EU rights?
16 LORD PANNICK: Precisely. Your Lordship is very
aware and I am not going to enter into any political
debate, but your Lordship knows that the government
have announced that there is going to be a great repeal
bill which is to be produced some time in the next session.

I say that the consequence of the defendant

giving notification will be that at a point in the future, it is
inevitably the case that the United Kingdom leaves the EU
and the consequence of that, as a matter of law, is that all
of the rights enjoyed under section 2(1) and
page 55
section 3(1), which is the process rights relating to the
Court of Justice, fall away. There is simply nothing left.
And therefore a great repeal bill, politically or otherwise,
may be desirable. I say nothing about that. It will not
affect those questions. Those rights will fall away as a
consequence of the United Kingdom leaving the EU.
Because when we leave, there are no treaty obligations.
That is the whole point of leaving. And indeed that is the
governments intention. This is not a happenstance, this is
the whole point of notification. Notification is intended to
remove the current substance of section 2(1) and 3(1).
Note: The European Community Act at 2(1) says:
All such rights, powers, liabilities, obligations and
restrictions from time to time created or arising by or
under the Treaties, and all such remedies and procedures
from time to time provided for by or under the Treaties, as
in accordance with the Treaties are without further
enactment to be given legal effect or used in the United
Kingdom shall be recognised and available in law, and be
enforced, allowed and followed accordingly; and the
expression enforceable EU right and similar expressions
shall be read as referring to one to which this subsection
applies.
At 3(1) it says: For the purposes of all legal proceedings
any question as to the meaning or effect of any of the
Treaties, or as to the validity, meaning or effect of any EU
instrument, shall be treated as a question of law (and, if
not referred to the European Court, be for determination
as such in accordance with the principles laid down by and
any relevant decision of the European Court.
So Pannick is arguing that when Britain withdraws from
the Treaty, there will be no reference point for Ss.2(1) and

3(1) of the ECA since the Article 50 notification will be

notice that Britain will no longer (at some point in the
future) be bound by the treaties mentioned in those
sections.
This suggests he holds to the dead letter view on these
Sections that they become (prospectively) nul and void
on issuing Article 50 notice. But arguably they dont
until Parliament repeals them. It is conceivable that a state
(call it the UK) might wish to be bound by EU law
including judgments of the Court of Justice while not
being a member of the EU. The Scottish Nationalists have
suggested (by implication) something of the sort for
Scotland. So it might still require Parliament to repeal
these sections even after the Article 50 Notification if
thats what Parliament wishes to do. It would be odd not to
and certainly politically unacceptable but not
constitutionally impossible. (This writer did try such an
argument in a separate piece but it did not find favour
with various more knowledgeable academics; see the
comment added to Parliament holds the cards)
For Deir dos Santos, Dominic Chambers QC said this (at
page 167 in the transcript):
[U]nder this proposed bill, on the UKs withdrawal
from the EU, the 1972 Act will be repealed and the current
EU law will be transposed wholesale into domestic law,
to be chewed over at leisure by Parliament in the
months and years ahead. That is the proposal. But in
our submission, that is topsy turvy. What it amounts to
is the executive setting itself up as a de facto legislature at
the Article 50.2 notification stage. The executive will be
saying to Parliament at the notification stage We have,
without consulting you, set in train an unstoppable
process of withdrawal from the EU and it is up to you,
Parliament, to sort out the consequences in two years
time, when the withdrawal takes effect. That, in our
submission, is what in reality is happening here and we
say that is not permitted under the doctrine of
parliamentary sovereignty, because it presents Parliament

with a fait accompli. And it deprives Parliament of the

choice of whether or not its enacted legislation should
be repealed because in those circumstances, Parliament
will have no choice either to repeal its enacted
legislation or it will simply just fall by the wayside. Either
way, the rights will have been lost. Now, we submit that
Parliament cannot lawfully be
Page 167
forced into this position by the executive because it
is directly contrary to the negative side of
parliamentary sovereignty, as described by Dicey. By
acting as it is proposing to do, the executive will be doing
nothing less than suborning the will of Parliament,
as manifested in the 1972 Act and other enactments which
give effect in domestic law to EU law rights.
This is a more strongly argued version of the repeal,
amend, dead letter argument that Parliament will be
forced to act by the fait accompli that Britain will already
be out of the EU. But if one accepts that the ECA could
continue in force after Brexit (as suggested above in the
note on Pannicks similar point), then the suborning of
Parliament would be just that ie inducing Parliament to
repeal the Act and replace it with sovereign rights derived
from a snapshot of the EU law landscape but inducing it
by political means. No one can say Governments have
never suborned Parliament to get Statutes through and
courts will of course recognise those Statutes however
much suborning goes on see Edinburgh and Dalkeith
Railway Company v John Wauchope. (Thanks to
bailli.org for this ancient and important case.) But
Parliament could, if it wished, reaffirm the ECA make it
applicable even though Britain was out of the EU and
ultra-soft Brexit in which the UK would accept EU law
albeit that the EU would not necessarily accept any
bilateral obligations to Britain. It could operate as a
political threat rather than a realistic outcome. See
Parliament holds the cards.

Materials The first day transcript of the Miller/Santos

court case is here

https://www.judiciary.gov.uk/wpcontent/uploads/2016/10/20161013-all-day.pdf
The second day morning transcript: Full day transcript
for 17 October 2016.
https://www.judiciary.gov.uk/wpcontent/uploads/2016/10/20161017-all-day.pdf
Third day: Full day transcript for 18 October 2016

All available at the Ministry of Justice

https://www.judiciary.gov.uk/wpcontent/uploads/2016/10/brexit181016-all-day.pdf

Obiter J has gathered the skeleton argument for the court

challenge from two of the parties (Miller and Dos Santos
v Secretary of State) plus the Governments grounds of
resistance here (plus other Brexit info)
https://www.gov.uk/government/uploads/system/upload
s/attachment_data/file/558592/Miller_v_SSExEU__Skeleton_Argument_of_the_Secretary_of_State_30091
6.pdf

Obiter J also gathers some of the comment on the Great

Repeal Bill here.
This is the Governments full skeleton argument in
Miller and Dos Santos v Secretary of State.
http://1exagu1grkmq3k572418odoooymwpengine.netdna-ssl.com/wpcontent/uploads/2016/09/Article-50-skeleton-finalredacted-names.pdf
The Peoples Challenge skeleton argument is here.

The Mishcon de Reya skeleton is here:

mishcon.com/assets/managed/docs/downloads/doc_3072
/Skeleton_for_the_Lead_Claimant.pdf
Here is the Cranston ruling that brought the government
arguments into the public domain: The Queen (on the
application of Miller) v Secretary of State for Exiting the
European Union
https://www.bindmans.com/uploads/files/documents/Or
der_sealed_28_9_16.pdf

An intervener, Peoples Challenge, in the case has

clarified their position, viz rejects the notion that the
Brexit litigators agree a (constitutionally) valid decision
that UK should withdraw from EU has already been
taken: 2016/10/Clarificatory Note.
Case of Proclamation 1610:
http://1exagu1grkmq3k572418odoooymwpengine.netdna-ssl.com/wpcontent/uploads/2016/10/CLARIFICATORY-NOTECO-3809-2016-CO-3281-2016.pdf
The Crown has no prerogative to change the common
law or statute, or to create new offences: The King by
his proclamation cannot change the common law or
statute law or the customs of the realm.
An EU briefing on Article 50 is here.

http://www.europarl.europa.eu/RegData/etudes/BRIE/2
016/577971/EPRS_BRI(2016)577971_EN.pdf

A parliamentary note on the Ponsonby Rule is here.

http://www.publications.parliament.uk/pa/ld200506/ldsel
ect/ldconst/236/23612.htm#note186
European Communities Act 1972 ... of the Government
of Ireland Act 1920 ... including any judgment or order

of the European Court, or of any document

http://www.legislation.gov.uk/ukpga/1972/68/pdfs/ukpga
_19720068_en.pdf
European Communities Act, 1972 - Irish Statute
Book
http://www.irishstatutebook.ie/eli/1972/act/27/enacted/en
/print.html?printonload=true
EUROPEAN COMMUNITIES ACT 1972 for UK and
Ireland and EU agreeement Bill
http://www.nadr.co.uk/articles/published/ConstitutionalL
aw/EuropeanCommunitiesAct1972.pdf
Great Britain and Northern Ireland and Ireland to the European
Economic Community and to the ... 1972; United Kingdom European
Communities .

http://www.parliament.uk/documents/commonsinformation-office/l11.pdf

concerning the applicability of Article 34 of Directive 2014/25/EU

of the European Parliament and of the Council to contracts awarded
for provision of airport infrastructure for cargo in Austria (notified
under document C(2017) 260) (Text with EEA relevance. )
http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32017D0132&from=EN

European Union of the reference of harmonised standard

EN 14342-2013 Wood flooring and parquetCharacteristics, evaluation of conformity and marking in
accordance with Regulation (EU) No 305/2011 of the
European Parliament and of the Council (Text with EEA
relevance
http://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:32017D0133&from
=EN
Commission Regulation (EU) 2017/128 of 20 January
2017 amending Council Regulation (EC) No 338/97
on the protection of species of wild fauna and flora
by regulating trade therein
http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32017R0128&from=EN

Commission Implementing Regulation (EU) 2017/129 of

25 January 2017 amending Implementing Regulation
(EU) No 743/2013 introducing protective measures on
imports of bivalve molluscs from Turkey intended for
human consumption,
http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32017R0129&from
=EN
Discrimination_Law_and_Pay_Systems_final_report_M
ay_2013 On Article 157 this UK government briefing
notes
https://www.gov.uk/government/uploads/system/uploads
/attachment_data/file/226323/Discrimination_Law_and_
Pay_Systems_final_report_May_2013.pdf
This is an understanding that Parliament will be
consulted on treaty changes (ie laid before Parliament for
21 sitting days).
This Lords Constitution Committee report (2013) on
the Governments powers (and how far it can pre-empt
parliamentary legislation) is of interest.
Comment Prof Mark Elliott critiques the governments
arguments here (though he has favoured their position on

whether Parliament must have a say in taking Britain out

of the EU: Public Law for Everyone, here). He looks at
the Great Repeal Bill announcement here.
Kenneth Armstrong at the LSE looks at the Great
Repeal Bill here.
Carl Gardner gives his view of the Article 50 case at
headoflegal.com. He sides with the Government view.
Lord Norton looks at the Fixed Term Parliaments Act
(and the mistaken view that Theresa May can just call an
election at will) on his blog here.
The Thoburn argument This and the related the
legality principle, according to John Adenitire on the
UK Constitutional Law Association blog, is: the wellestablished constitutional principle that only Parliament
may abrogate fundamental rights. (See R v Home
Secretary ex parte Simms [2000] 2 AC 115, 131.
Similarly Lord Justice Laws in the metric martyrs
case Thoburn v Sunderland City Council etc, said
(albeit obiter dicta in passing) some statutes should be
recognised as constitutional and could not be repealed
except by clear words in a new parliamentary Act ie
not by implication:
We should recognise a hierarchy of Acts of Parliament:
as it were ordinary statutes and constitutional
statutes. The two categories must be distinguished on a
principled basis. In my opinion a constitutional statute is
one which (a) conditions the legal relationship between
citizen and State in some general, overarching manner, or
(b) enlarges or diminishes the scope of what we would
now regard as fundamental constitutional rights. (a) and
(b) are of necessity closely related: it is difficult to think
of an instance of (a) that is not also an instance of (b).
This is used to argue for a straightforward vote in

Parliament on Brexit since EU membership comes with

many rights which should not be lost through a
prerogative act and the ECA is clearly a constitutional
Act that should not be impliedly repealed.
Note: Just as it is inaccurate, or incomplete, to say that
the UK joined the EU by means of enacting the ECA
1972, that Acts repeal is not a necessary component of
Brexit (argued by Mark Elliott, Public Law for
Everyone, here). The anti-Brexiters are arguing that the
passing of the European Communities Act 1972 did thus
abrogate any prerogative power to exit the EU. The
prerogative should not be used so as to frustrate the will
of Parliament (see: R v Home Secretary ex parte Fire
Brigades Union) [1995] 2 AC 513 in 1995, where Lord
Browne-Wilkinson stated that: it would be most
surprising if, at the present day, prerogative powers could
be validly exercised by the executive so as to frustrate
the will of Parliament as expressed in a statute and, to an
extent, to pre-empt the decision of Parliament whether or
not to continue with the statutory scheme
The long title of the ECA Something is made by the
proponents of a parliamentary vote on Brexit of the
European Communities Act long title which states it is
an Act to make provision for the enlargement of the
European Communities to include the United Kingdom.
The long title is not part of the legislation, as such, but
is a permissible aid to interpreting the terms, and object
and purpose of the Act, Jeff King et al tell us. So how
should we interpret the words make provision for. That
would seem to say no more than it lays the necessary
groundwork for the enlargement not that it creates the
enlargement itself or any rights per se (except perhaps
the right to have UK courts judge EU cases and judge

them on EU principles).
King et al say the whole object and purpose of the 1972
Act is to make the UK part of the EU. But it isnt,
since the UK became part of the EU via the treaty and it
is within the treaty that EU rights lie, not in the ECA.
The ECA did not take Britain into the EU but it allows
Britain to exist more comfortably within it from a legal
point of view ensuring, in particular, no awkward
clashes between UK laws and EU laws.
So what happens after Theresa Mays Great Repeal Bill
and Brexit? A disturbing prospect has arisen of a bonfire
of legal rights currently held by British citizens could be
brought about on little more than the say-so of
government ministers. No parliamentary debate, little
likelihood of votes by MPs, rights lost by administrative
order rather than new laws passing through both Houses
of Parliament.
Here is the plan: Given there are many legal rights
enshrined in UK law that derive from the European
Union and which, under the Great Repeal plan, will
remain in effect after Britain leaves, an efficient way
must be found to comb through them and disapply them
where necessary. It could take mammoth parliamentary
sessions passing complex repealing legislation. Instead,
and rather chillingly, Conservative barrister Martin
Howe QC (among others) has said ministers should be
given powers to disapply them bit by bit as and when it
is deemed appropriate.
So Parliament will be asked to pass a piece of primary
legislation, possibly in the Great Repeal Bill itself,
handing those powers to ministers, in other words
allowing the ministers to repeal or disapply European

law at will through secondary legislation, probably

statutory instruments (see below). It will be the quickest
way of taking the necessary decisions to reemploy or
replace them he told BBC Radio 4s Unreliable
Evidence 14 Sept 2016.
But giving such powers to the Government would in
effect leave whole areas of law at the mercy of ministers
including employment and equality rights, privacy and
consumer rights, environmental law, copyright
protections, safety law, food hygiene and many laws
affecting business. It is difficult to establish how much
British law is driven by the EU but FullFact.org says
this:
An estimated 13% of Acts [primary legislation] and
Statutory Instruments have an EU influence, whereas that
rises to 62% when EU regulations are included in
addition to Acts and Statutory Instruments.
So, if all this is open to repeal or amendment by statutory
instrument, MPs may as well go home for the duration.
There will be hardly any other business and in effect the
Government will be able to pass wholly new
legislation in large areas of law presumably not quite
the victory for the sovereignty of Parliament (not
Government) that some Brexiters said they wanted. The
proposal is constitutionally dubious, impractical and
wholly oppressive.
But does this plan even make sense? In particular what
about all the EU law that is not part of the 13% that has
been rendered into British legislation the Regulations,
Decisions and rulings of the Court of Justice of the
European Union at Luxembourg? If FullFact is right, this
must make up getting on for 40% of UK law yet it is
not written into our legislation and so cant obviously be

repealed by Parliament or government ministers. What

will happen to it all?
The standard answer of the Brexit-sceptics (and
suggested in the Radio 4 programme by Lord Falconer,
former Lord Chancellor) is that Parliament must pass a
piece of holding legislation that says not a single EU
right is lost at the point of exit from the EU. They may,
paradoxically, have got their way in the Great Repeal Act
But that will not satisfy the Brexiters who will insist the
referendum result meant Britain wanted to get rid of all
that law, not keep it indefinitely. So a whole new
bureaucracy will have to be set up, packed with dare
one say it highly paid lawyers to sift through all this
law and place it before the appropriately empowered
ministers to repeal or reprieve with the flash of a fountain
pen.
But its even more complex. Among all that law will be
UK court judgments based on EU jurisprudence. Will
judges be told all that is now to be disregarded and in a
country that is supposed to respect the separation of
powers, will judges be happy to be told thus?
So, in brief, the practicalities of disentangling Britain
from EU law could throw up some alarming and very
un-British consequences. Far from
ditching bureaucrats, putting power back with
Parliament, freeing ourselves from overweening
executive power, Britain could be transformed into an
oppressive bureaucratic nightmare world in which edicts
are issued transforming the legal landscape with little
parliamentary input, public debate or democratic
mandate.
Below the sources of European law are examined and
questions raised about how far it is possible or

appropriate to use ministerial say-so to salvage or savage

them in Brexit Britain. First a look at the secondary
legislation that proponents believe will achieve this aim.
What are statutory instruments? Statutory instruments
can be produced by ministers either requiring a positive
vote in Parliament (but no debate or scrutiny or
amendment) or in a form (negative instruments) that
needs no vote at all, though either House of Parliament
can veto them (again with no debate or scrutiny or
amendment). Over the last 65 years, out of
nearly170,000 statutory instruments, only 17 have been
rejected by the two Houses.
Such secondary legislation is supposed to be used for
non-contentious procedural matters such as updating
fines and monetary penalties in primary legislation. But
increasingly in recent decades statutory instruments have
been used as a shortcut to pass more contentious
legislation. There were about 3,500 statutory instruments
in 2014, compared with about 1,000 a year in the 1980s.
The current Government has been accused of using
statutory instruments for everything from fracking to
fox hunting and benefit cuts, a situation former shadow
minister Angela Eagle called an attempt to govern from
the shadows. The Hansard Society said:
the use of delegated legislation by successive
governments has increasingly drifted into areas of
principle and policy rather than the regulation of
administrative procedures and technical areas of
operational details.
To use statutory instruments to roll up acquired rights
from the European Union would create a shadow
government like no other, presumably able to manipulate
EU laws in any way individual ministers desire without

full parliamentary oversight.

Does it make sense?
To answer this question one has to look at the nature of
EU law. Howe in his Radio 4 comment seemed to
suggest the statutory instrument process would apply to
only those laws that were created by statutory
instrument. But that avoids the issue of what happens to
all the other EU laws which means we must look at the
sources of EU law.
Directives: These are issued by the European
Commission and are expected to be enshrined in law by
the governments of each individual state giving
them therefore a certain leeway to do it in their own way.
They are binding as to the result to be achieved upon
each Member State but shall leave to the national
authorities the choice of form and methods (Art 288
TFEU) Judges are therefore expected to interpret the
national statute in light of the original directive. So
a judge
in applying national law, whether the provisions in
question were adopted before or after the directive, the
national court called upon to interpret it is required to do
so, as far as possible, in the light of the wording and the
purpose of the directive in order to achieve the result
pursued by the latter [ie the directive] Marleasing SA
v La Comercial Internacional de Alimentacion SA 1990
So directives account for the roughly 13% of EU law that
is actually written down in UK legislation, whether
primary or secondary. One such piece of UK legislation
is RIPA (Regulation of Investigatory Powers Act)
intended to implement Article 5 of the 1997 European
Union Directive 97/66/EC (now Art 5 of Directive
2002/58/EC) to curb state surveillance.

This the British Government now deems not fit for

purpose in an age of bulk surveillance (though it is
argued here that, thanks to the purposive nature of EU
law, it remains effective and has hence been broken by
the UK Government). The Government has been trying
to get new legislation through Parliament (the
Snoopers Charter) to give itself wider surveillance
powers (or legalise what it has been doing already). This
new legislation would probably be illegal under EU law.
So is it really the case that Parliament would let the
Government solve its problem by giving it a power
simply to sweep away legislation like this or amend it as
it thinks fit? It seems inconceivable but if not, great
chunks of British legislation, on the statute books at the
behest of the EU, would stay there and remain effective
until the Government got round to producing, bit-by-bit,
new primary legislation.
At the very least, amendments would be needed to make
clear the law is overseen now by UK institutions, not EU
ones. And something would have to be done to establish
whether court judgments under the Marleasing principle
would continue to carry weight and hence whether
the Marleasing principle would be applicable in future.
Brexiters would say no (as Howe very clearly did) since
we, apparently, voted out of the EU to get rid of any such
influence over our courts as well as over our Parliament.
Regulations: These are issued by the European
Commission and are expected to become part of member
states law directly. So there is no equivalent UK
legislation amenable to repeal or amendment by the
British Parliament. It is law recognised in the British
courts as in all EU member states courts. It is also law
that is likely to have been clarified by the Court of

Justice of the European Union, either through cases

brought to the Luxembourg court or through the process
of preliminary reference (Article 267 TFEU) whereby
a British court looking at a claim under EU law can refer
a question to the CJEU regarding interpretation of the
directly effective EU law.
Direct effect means the law gives rights (vis--vis the
state) directly to individuals the case with EU
Regulations in general as well as many Directives and
rights under the EU treaties. A preliminary ruling is
given by the CJEU (preliminary in the sense of being
before the national judge decides the case rather than on
appeal) and this should ensure there is no divergence
between member states on how directly effective law
functions.
So what would happen to Regulations when Britain exits
the EU? Presumably they would not just fall and
presumably they would be added to all the law that
becomes British in the Great Repeal Bill. That seems
likely since they provide important procedures and
protections, for example that companies trading in the
EU must follow. Take Boris Johnsons notorious bendy
bananas regulation No 2257/94. This is not at all about
bendiness or the number of fingers per bunch that can be
displayed in shops but is intended to ensure wholesalers
ship bananas so they remain firm and intact without
rotting. If this Regulation disappeared does that mean
Britain could be flooded with all the mouldy bananas that
the rest of the EU refused to take?
Or take, arbitrarily, Regulation No 181/2011, which
gives bus and coach travellers certain rights such as
compensation for delayed journeys. Is this just the sort of
red tape Brexiters want rid of, and the sooner the better?

Or might consumers (including many of the 52% who

voted Brexit) be rather pleased that they can get
free snacks, meals and up to 2 nights hotel
accommodation in situations of cancellation or
following a delay of more than 90 minutes in the case of
a journey of more than 3 hours?
Treaty rights: Many legal rights people in Britain have
come directly from the foundational EU treaties,
particularly the Treaty of the European Union (TEU) and
the Treaty of the Functioning of the European Union
(TFEU). For example Equal pay for equal work is one
of the European Unions founding principles, embedded
in the Treaties since 1957 (EU Treaty and Legislation)
now enshrined in Article 157 TFEU. Although Britain
has had an Equal Pay Act since 1970 (incorporated into
the Equality Act 2010) nevertheless much of the
interpretation of what constitutes equal pay has come
from judicial decisions on EU principles in Britain and
in Luxembourg.
Decisions These are made by the European Council and
Parliament combined and may be directed at a member
state or against individuals and companies. They are
binding on those they are directed towards. Many are
used for EU administrative and financial matters and as
such will not affect Britain after Brexit. But they are also
issued to establish intra-EU cooperation for example on
health or security matters. An example is Decision No
1082/2013/EU on serious cross-border threats to health.
This lays down rules on epidemiological surveil-lance,
monitoring, early warning of, and combating serious
cross-border threats to health, including preparedness
and response planning related to those activities, in order
to coor-dinate and complement national policies.

It covers environmental threats as well as those from

biotoxins and pandemics and allows coordination of
epidemiological surveillance in effect monitoring
health threats. And it establishes an Early Warning and
Response System to deal with cross-border threats. But
once Britains out, is that it? Can Britain stop exchanging
information and expect to receive none when
toxic clouds start billowing across the North Sea?
Brexiters may say, of course this is just the sort of area
where we would cooperate, (as on greenhouse gases;
see Decision No 406/2009) but under what authority?
Will this Decision still apply to Britain by being
encompassed within the Great Repeal Act (as it will
become)? And if not, how close to the top of the priority
list will this particular matter be for whichever minister
gets the power to opt back in to the system or has to
renegotiate a bipartisan treaty (since the Decision is in
effect a treaty without the full bureaucracy and wrangling
that would be involved to get a deal among 28
signatories separately)?
Judicial decisions There are whole swathes of EU law in
force in Britain as a result of judicial decisions, whether
by UK judges or in particular as a result of cases in the
Court of Justice of the European Union (CJEU) in
Luxembourg. In the Unreliable Evidence broadcast Lord
Falconer gave the example of who counts as a
comparator for equal pay calculations (public sector).
European case law forms part of the legal acquis of the
EU the whole body of common rights and obligations
binding on all member states. But it is not in legislation
and hence cannot be repealed, and nor does it simply
drop out of the picture when Britain leaves since courts
should, to maintain legal consistency, continue to

recognise the legal principles of past cases.

So what will the Government do about it? Will it
somehow be included in UK law thanks to the Great
Repeal Bill? Will the Government then be empowered to
issue edicts to the judges to no longer take account of
past Court of Justice cases even those cases that have
entered UK case law? Or tell judges which to take on
board and which to jettison? If the Government does that,
wont that be thoroughly unconstitutional? An offence
against separation of powers and the British tradition that
the executive should not interfere with the judiciary?
Has anyone in the Government thought about any of
this? If so, I missed the press release.
Twitter: alrich0660
Note: This post has been updated slightly to take account
of the Great Repeal Bill announcement.
Martin Howe makes his position clear in this piece for
Politeia (pdf) George Peretz QC raises concerns in this
pre-referendum piece: Henry VIII and the perils of Brexit
(Henry VIII is a reference to so-called Henry the Eighth
powers sometimes given to ministers to change
substantive elements of primary legislation often seen
as the most egregious form of statutory instrument. See
for example: Ken Clarke gets his Henry VIII clause into
judicial appointments.
Of interest:
Why Parliament has no vote on Brexit: Als Law here
Given the loss of EU acquired rights owing to Brexit,
this piece (on the UK Constitutional Law Association
blog) suggests Parliament should have a vote (citing the
Thoburn metric martyrs case).
Heres a piece on why, presumably, Brexiters are happy
if Britain no longer recognises the European Arrest

warrant: EAW perceived problems

Notes You can find EU legislation in various forms
here and in some detail here.
On Article 157 this UK government briefing notes:
Article 157 can have significant practical implications
in the UK. It has direct effect and can be relied upon by
individuals whether their employer is a public body or
private organisation. UK law must be interpreted in
accordance with its provisions. Ordinarily employees
achieve this by bringing their claim under the UK
provisions but argue that these have to be interpreted in
accordance with Article 157 provisions there are some
critical differences between the provisions in Article 157
and the [British] Act.
Treaty on the Functioning of the European Union
Article 288 (formerly Article 249 TEC).
To exercise the Unions competences, the institutions shall
adopt regulations, directives, decisions, recommendations
and opinions.
A regulation shall have general application. It shall be
binding in its entirety and directly applicable in all
Member States.
A directive shall be binding, as to the result to be achieved,
upon each Member State to which it is addressed, but shall
leave to the national authorities the choice of form and
methods.
A decision shall be binding in its entirety upon those to
whom it is addressed.
Recommendations and opinions shall have no binding
force.

A useful piece here from Norton Rose Fulbright on the

legal route for Brexit

What will be the legal route to achieving a

Brexit?

Following the vote to leave the EU, in order to start a formal legal

process the UK will need to notify the European Council of the

UK's intention to withdraw from the EU. The service of formal
notice will trigger Article 50 of the Treaty on European Union
(the TEU), the mechanism by which an EU member state is able
to legally withdraw from the EU and under EU and international
treaty law. Announcing his intention to step down as Prime
Minister, David Cameron stated that Article 50 notification will take
place after a new leader is in place, likely to be by October.
Following the service of notice on the European Council, Article 50
provides for a two year period for the withdrawal to take effect.
There are likely to be negotiations between the UK and the
European Commission1, as EU negotiator, based on guidelines
issued by the European Council and in accordance with article
218(3) of the Treaty on the Functioning of the European Union
(TFEU). The negotiating period can be extended by agreement of
all EU member states. If no extension is agreed, the UK would
automatically cease to be a member of the EU at the end of two
years. A link to our Brexit timeline tracker can be found here. It is
anticipated that even if there is a formal exit after 2 years, much of
the detail of the negotiation will need to be dealt with over a longer
period. Article 50 has never been used before so the UK would be
setting a new precedent and this is likely to bring its own
challenges for all parties involved in so far as there is no clear
legal framework for how it would work2.

Note: The High Court has now ruled that the

Government does not have power to issue Article 50
notification. The 3 November 2016 judgment is available
here.
Britains Prime Minister Theresa May has said there will
be no attempts to sort of stay in the EU by the back
door. Shes right. Those anti-Brexit voices hoping that a
sovereign UK Parliament has a constitutional right to
halt Mays European Union exit plans are wrong. A
debate and vote by MPs would have no more
constitutional weight than, let us say, the advisory
referendum of June 23 (arguably rather less). Nor does
the Prime Minister have a duty to give MPs a vote before

she issues her withdrawal notice to the European Council

under Article 50 of the Lisbon Treaty.
But if and when May does that, she will be entering a
complicated constitutional maze rooted in a
treacherous political quagmire with no predictable way
through. Britain could be in limbo with Parliament and
Government unable to agree, judges unable or unwilling
to give clear guidance, a crisis Brexit election which
will resolve nothing and will not get May out of the hole
left by her predecessor.
Wiser heads than this blogger have written at length on
these issues, particularly regarding whether Parliament
has a final say in taking Britain out of the EU.
Unfortunately they have come to diametrically opposed
views with others taking up positions of various
polarised degrees around the unsquared circle that is
Britains Brexit crisis. What follows is simply an attempt
to give some guidance through the maze.
MPs have no vote on Article 50 Those who think MPs
have a crucial voting role on Brexit at this point, and that
exit from the EU cannot occur merely on the back of the
referendum result, often assert Parliamentary
sovereignty the notion that Parliament, not the people,
are sovereign. But in reality Parliament (or the Queen in
Parliament in the strict constitutional terminology) is
only sovereign when it has successfully passed
legislation through the Commons and the Lords and had
it signed into law by the Monarch. The piece of
legislation is sovereign in that the courts must and will
recognise it. Parliament is not sovereign in the sense that
it can tell the leader of Her Majestys Government (Mrs
May) what to do or in the sense that a debate and a vote
on some matter exercising the popular imagination

actually matters (except insofar as it garners headlines).

Theresa May, in sending out the Article 50 notification
will be using her prerogative powers, derived from the
Monarch, to make and break treaties. She will be doing it
on the basis of government policy which is to recognise
the EU referendum result as binding even though the
legislation did not say it was. (Nor did it say it was
advisory.) She might justify government policy by
suggesting that in passing the European Referendum Act
2015, Parliament intended the result of its own
legislation; she could argue she is doing it because it is
the clear will of the people; or that it is for the good of
the country; privately she may say it is for the good of
the Conservative party. None of these are constitutional
requirements, however constitutional the act of
sending Article 50 notice might seem to be. But no
constitutional argument is required. It is simply
government policy backed by prerogative power.
There are exceptions to the rule that a debate in
Parliament has no particular constitutional force sort
of. Closest to the Brexit position might be the debate
given to Parliament by Tony Blair before the Iraq war.
Strictly speaking war-making is another prerogative
power which Parliament has no direct say in. The vote
was offered for political reasons basically that in a
modern democracy it would seem wrong for such an
important policy to bypass Parliament. (See: The Prime
Ministers prerogative: Iraq, Syria and war with Spain.)
Blairs action in some sense set a non-binding precedent
which resulted in David Cameron to losing a vote on war
with Syria. But Cameron did not see fit to bring other
warlike matters before Parliament with smallish numbers
of boots on the ground or wings in the air nor targeted

drone strikes on individuals. There was no constitutional

requirement that he should.
Another example of a debate that was meant to have
constitutional or legal force came, paradoxically, at the
behest of Theresa May when she was Home Secretary.
She wanted some parliamentary backing for the
immigration rules for deportees, which are varied
constantly, but by the Government, often merely through
new guidance, not through primary legislation. Since
courts were picking holes in the rules because of human
rights issues, (see, for example, the Alvi case) she called
a debate specifically in the elected House of Commons to
give them some sort of spurious democratic backing.
This was condemned by a House of Lords committee,
which said: While the Home Secretarys intention is
clear, there are some questions about whether the
procedural approach [the Commons debate] proposed
can deliver it. (See: Lords Committee Criticism) A mere
debate in parliament does not have the force of law.
This time around, of course, May will not offer such a
debate, however non-binding, for the blunt political
reason that it would probably put her at odds with
Parliament, assuming MPs come out against Brexit and
call for no issuing of the Article 50 notice. The two
examples above were in effect political ploys, not
constitutional requirements. Without parliamentary
backing, the ploy would not work this time.
What can MPs do? Assuming Parliament is pro-EU and
given a majority in the Commons against issuing the
Article 50 notice, it could call its own debate, it could
pass a vote of no confidence in the Government or it
could pass a piece of its own legislation. All methods are
fraught with political dangers. MPs can call debates by

various procedures, outlined here. Adjournment debates,

which are in the gift of the Speaker or through a ballot,
are really little more than a means of getting ministers to
answer questions.*
Backbench Debates may be available on application to
the Commons Business Committee. The committee will
also take account of e-petitions. So a debate on a second
EU referendum was scheduled for 5 September
following an e-petition from four million people. But it is
merely a debate with an obligatory reply at the end from
the relevant minister. There is no vote and it cannot
change policy.
The most practical means of stopping Brexit is a motion
passed in the Commons on the words in the Fixed Term
Parliaments Act 2011 Section 2(2): That this House has
no confidence in Her Majestys Government. There
would have to be some planning for this, not to mention
conspiracy, since if no new (presumably pro-EU)
government can be formed within 14 days, its General
Election time. And what an election it would be!
With the Tories split on the EU, Labour in the middle of
tearing itself apart on things in general, the SNP strongly
pro-EU and likely to sweep the board in Scotland, any
and every Ukipper who can be scraped together fighting
every seat, the Brexit Election would be a more bloody
and more chaotic rerun of the referendum with
absolutely no guarantee that the new House of Commons
that emerges will be able to provide coherent direction or
strong government or any more clarity on the Brexit
issue than we have now. MPs would be unwise to press
that particular nuclear button.
Is primary legislation an option? An Act of Parliament
could clarify whether the referendum was advisory or not

since parliamentary sovereignty means Parliament can

change its old legislation. But anti-Brexiters would want
to go further, presumably, and put a stop to the whole
Brexit nonsense. Again an Act could do that if MPs (and,
of course, Peers) are willing to accept the political risks.
Practically, though, Bills are generally introduced by the
Government. The powers of MPs (and Peers) to
introduce Bills are limited. Private Members Bills are
explained here. Again they involve winning a ballot. The
ballot for this years session was held in May. So the
option is not available.
Can the courts help the anti-Brexiters? A number of
court cases have been launched about the Brexit issue
(heres a rundown) and the courts have agreed to
consider a judicial review. But no one should put much
hope in that. Judges cannot require debates in Parliament
and they certainly cannot demand Governments produce
particular legislation (or any legislation). This is because
of the very parliamentary sovereignty that anti-Brexiters
pray in aid. It is fundamental to the British constitution.
Courts can examine the actions of the executive (ie the
Government) vis--vis third parties but cannot interfere
with primary legislation. They come close when
declaring legislation incompatible with the European
Convention of Human Rights, but the Human Rights Act
1998 Section 4 stops short of giving power to judges to
strike down primary legislation. Such a declaration is
not binding on the parties to the proceedings in which it
is made (S.4(6)). The Government would be expected to
bring legislation to Parliament to rectify the
incompatibility and Parliament would be expected to
pass it but neither have to.
It is questionable whether courts can examine the

prerogative of treaty-making at all. It may not be

justiciable. So in The Council of Civil Service Unions v
Minister for the Civil Service [1983] UKHL 6 Lord
Roskill said this:
Many examples were given during the argument of
prerogative powers which as at present advised I do not
think could properly be made the subject of judicial
review. Prerogative powers such as those relating to the
making of treaties, the defence of the realm, the
prerogative of mercy, the grant of honours, the
dissolution of Parliament and the appointment of
ministers as well as others are not, I think susceptible to
judicial review because their nature and subject matter
are such as not to be amenable to the judicial process.
The courts are not the place wherein to determine
whether a treaty should be concluded or the armed forces
disposed in a particular manner or Parliament dissolved
on one date rather than another.
Similarly in R v Home Office ex parte Everett [1988]
EWCA Civ 7 (about non-issuance of a passport) Lord
Justice Taylor said:
The majority of their Lordships indicated that whether
judicial review of the exercise of prerogative power is
open depends upon the subject matter and in particular
whether it is justiciable. At the top of the scale of
executive functions under the prerogative are matters of
high policy, of which examples were given by their
Lordships; making treaties, making law, dissolving
parliament, mobilising the Armed Forces. Clearly those
matters, and no doubt a number of others, are not
justiciable.
On the other hand the prerogative should not be used so
as to frustrate the will of Parliament (see: R v Home

Secretary ex parte Fire Brigades Union) meaning

(again) Parliaments will exhibited in extant legislation,
not an assumption about how MPs might vote on the
matter today or tomorrow. So which legislation counts?
The Referendum Act of 2015 (on the grounds that
Parliaments will was whatever the outcome of the
referendum turned out to be); or European
Communities Act 1972? The following arguments apply
to both the justiciability issue and the substantive issue if
judges are willing to pursue it.
The legal arguments The anti-Brexiters hope to make a
case for saying that the Royal Prerogative does not
extend to issuing the Article 50 notice. Use of the
prerogative was at issue in the immigration cases
mentioned above (Alvi et al) and the UK Supreme Court
found against Theresa May. (She had simply ignored
Parliament and got the UK Border Agency to post the
new rules on its website.)
In that case Lord Hope said a prerogative power may be
suspended, or abrogated, by an Act of Parliament. The
anti-Brexiters are arguing that the passing of the
European Communities Act 1972 did thus abrogate any
prerogative power to exit the EU. The argument runs
thus: Britain entered the EU thanks to a treaty under the
prerogative but then Parliament ratified the treaty, so
only Parliament can get Britain out of the treaty. That
must be done by repeal of the Act through a new Act of
Parliament or a new Act or amendment in effect giving
permission for the Article 50 notice (argued by Scott
Styles on Aberdeen University Law.) See this
parliamentary note:
Although the Executive can commit the United
Kingdom to obligations under international law, if a

change to domestic law is required, it will only take

effect if Parliament passes the necessary legislation.
(Public Administration Sub-Committee)
But the counter-argument is that the European
Communities Act is not an act of accession to the EU as
such but a confirmation of the legal and bureaucratic
consequences that follow from that. So: Just as it is
inaccurate, or incomplete, to say that the UK joined the
EU by means of enacting the ECA 1972, that Acts
repeal is not a necessary component of Brexit (argued
by Mark Elliott, Public Law for Everyone, here). What
words of the Act, if repealed, would amount to
withdrawal from the EU? There are none.
We are in a paradoxical confundulum: While
Britain remains in the EU (ie before the Article 50 notice
is issued and until withdrawal actually occurs) the ECA
1972 is required to stay in place to regulate legal
relations between Britain and the EU as well as those
individuals or companies etc subject to EU law within
the UK. Repeal would put Britain in a bizarre limbo, in
effect repudiating the EU before having agreed terms for
leaving it.
Hence, issuing an Article 50 notice would not change
statute law it would not by any implication repeal the
ECA 1972. The will of Parliament (ie the Parliament that
passed the 1972 Act) will not have been frustrated at
all since the ECA would remain fully in force and the
nuts and bolts of it continue to have their legal effects. So
it is open for May to, perfectly constitutionally, issue the
notice.
The ECA would stay in place for the time being and
even after Britain leaves the EU (possibly by being
ejected after failure of the two years of negotiations). It is

only with the prospect of exit that Parliament would have

to look at repealing or amending all or bits of the ECA
depending on what deal Britain got and, hence, how far
the writ of EU law will continue to run in a Brexited
Britain. So if the UK remains in the European Economic
Area, presumably quite a lot will stay in place, modified
to fit the new purpose.
So Parliament would have a role in this but possibly
not wholly via primary legislation going through all the
long stages of a parliamentary bill. Instead the prospect
has been raised (by Sir Paul Jenkins QC, a former head
of legal services for the Government) that Parliament
should pass a statute giving the Government powers to
issue secondary legislation that would change EU laws in
Britain as and when necessary to conform to the new
status.
So negotiating the Brexit maze should all go pretty
smoothly so long as Mrs May can convince Parliament
that, in its own and the countrys best interests, it should
back off and leave her to sort things out, calmly and
efficiently. But as we enter the maze, best bring your
wellies, satnav and some supplies for a pretty long haul.
Twitter: alrich0660
Thanks to Bailii.org for cases
This post looks at the proposal for exactly how
individual EU laws will be repealed after Brexit by
individual ministers, not Parliament and finds it
constitutionally dubious, impractical and wholly
oppressive: Bonfire of EU rights
See also: Obiter J has gathered the skeleton argument for
the court challenge from one of the parties plus the
Governments grounds of resistance here (plus other
Brexit info) Here is the Cranston ruling that brought the

government arguments into the public domain: The

Queen (on the application of Miller) v Secretary of State
for Exiting the European Union (pdf). Prof Mark Elliott
critiques the governments arguments here.
Note: Former Labour Lord Chancellor Charles Falconer,
no Brexiter, has acknowledged that Parliament need be
offered no legislative say in issuing the Article 50 notice.
BBC Radio 4 Unreliable Evidence 14 Sept 2016.
The Thoburn point A new and interesting piece on UK
Constitutional Law Association by Gavin Creelman
rejects the sort of analysis set out above by suggesting
the European Communities Act is a constitutional act
that cannot be impliedly repealed (as a prerogative Art
50 notice would in effect purport to do) or which
contains fundamental rights that cannot be removed
except by a further parliamentary act. This blogger
considers (as above) that an Article 50 notice would not
impliedly repeal the ECA 1972. Whether it would
contingently repeal it is another and knottier question
ie by in effect requiring Parliament to repeal or modify it
at a later stage when the deal has been done. The
Government (and circumstances) would thus have
fettered Parliaments independence via the prerogative.
Popping on the thinking cap now.
An answer to Creelman may be this. He cites obiter
comments (by Lord Justice Laws) in Thoburn v
Sunderland City Council etc on constitutional statutes
that (arguably) cannot be impliedly repealed, but only by
specific words in a new Act of Parliament. Such statutes
contain fundamental constitutional rights regarding the
relationship of the citizen viz viz the executive. He
argues that the European Communities Act is just such
an act. Here, though, the implied repeal would be by us

of the prerogative, not another (unspecifically worded)

Act of Parliament. So (the Creelman view is) the Article
50 notice prospectively (two years down the line) and
contingently (depending on the outcome of the
negotiations with the EU) repeals the ECA.
But, in fact, the ECA contains no such fundamental
rights. It is the documentation of the European Union
that contains those rights eg to free movement of workers
or no tariff barriers (if that can be defined as a
fundamental right). And so the access to those rights
comes, not via the ECA, but thanks to the treaty of
accession in 1972. The EPA acknowledges that by, in
effect, ousting its own parliamentary sovereignty in
favour of EU lawmakers and the British Executive. So it
says at Section 2(1):
All such rights, powers, liabilities, obligations and
restrictions from time to time created or arising by or
under the Treaties, and all such remedies and procedures
from time to time provided for by or under the Treaties,
as in accordance with the Treaties are without further
enactment to be given legal effect or used in the United
Kingdom shall be recognised and available in law, and
be enforced, allowed and followed accordingly.
It is constitutionally likely that EU rights would have
been recognised in British courts even without the ECA,
albeit in an indirect way, since judges would have
accepted the treaty as a source of law.
There is a paradox here. The Holy Grail of the
entrenched or constitutional law that cannot easily
be repealed by a sovereign Parliament is often to be
found in international treaty, not passed directly by
Parliament at all. It is at arms length from parliamentary
interference, though theoretically Parliament could over-

rule it if the Government brings new legislation to do so.

But why would a government do that? Start reading from
the top again
Materials The first day transcript of the Miller/Santos
court case is here (MoJ pdf).
Adam Tucker for UK Constitutional Law
Association goes for exit by Government but under
parliamentary scrutiny. Nick Barker et al, in a post on
the same site, believe Parliament must trigger it. Head
of Legal demurs here, saying: the government may
choose to ask Parliament to vote in favour of article 50
notification but there is no legal or constitutional
requirement on it to do so. This Constitution Unit
piece runs through the options. Jack of Kent looks at
the prospects for the litigation here, including the
possibility that judges will not wish to decide a case that
is essentially political and has little in the way of
remedies that a court could offer. Prof Piet Eeckhout
suggests the Government has a poor case or at least,
inconsistent arguments, at Eutopia Law.
The House of Lords EU Select Committee has
announced it is to examine the issue of Parliaments role
in scrutinising Brexit on the basis of this question:
Although treaties, once agreed, are subject to
ratification by Parliament, the two Houses normally play
little or no role in scrutinising treaty negotiations. Should
Parliament play an enhanced role in scrutinising the
terms of Brexit negotiations? What would be the
rationale for such an enhanced role?
Here is an earlier report: Scrutinising Brexit
The European Communities Act says this at S.2(1): 1)
All such rights, powers, liabilities, obligations and
restrictions from time to time created or arising by or

under the Treaties, and all such remedies and procedures

from time to time provided for by or under the Treaties,
as in accordance with the Treaties are without further
enactment to be given legal effect or used in the United
Kingdom shall be recognised and available in law, and
be enforced, allowed and followed accordingly; and the
expression enforceable EU right and similar
expressions shall be read as referring to one to which this
subsection applies.
Article 50 the relevant paragraphs

Any Member State may decide to withdraw from the

Union in accordance with its own constitutional
requirements.
A Member State which decides to withdraw shall notify the
European Council of its intention. In the light of the
guidelines provided by the European Council, the
Union shall negotiate and conclude an agreement
with that State, setting out the arrangements for its
withdrawal, taking account of the framework for its
future relationship with the Union. That agreement
shall be negotiated in accordance with Article 218(3)
of the Treaty on the Functioning of the European
Union. It shall be concluded on behalf of the Union
by the Council, acting by a qualified majority, after
obtaining the consent of the European Parliament.
3 The Treaties shall cease to apply to the State in question
from the date of entry into force of the withdrawal
agreement or, failing that, two years after the
notification referred to in paragraph 2, unless the
European Council, in agreement with the Member
State concerned, unanimously decides to extend this
period.

*Note: Parliamentarians must, of course, have a vote on

the annual Budget and related money-raising by the
Government which, historically, is pretty much
the raison detre of Parliament in the first place. Money

should not be raised from the people without the peoples

representatives (and/or the Peers, who in the old days
represented only themselves) saying yea or nay. After the
Budget is presented, Parliamentarians vote on a Finance
Bill which goes through a similar legislative process to
any other parliamentary bill (though the Lords are barred
from voting it down). See this report on procedure
regarding parliamentary debate on government
expenditure.
http://www.publications.parliament.uk/pa/cm199899/c
mselect/cmproced/295/29504.htm

Additionally under the Bill of Rights 1688 raising and

keeping of a Standing Army during peacetime is against
the law, unless it is with the consent of Parliament.
http://www.legislation.gov.uk/aep/WillandMarSess2/1/2/
data.pdf

Article 50 ruling
Courts should never
have got involved in
Brexit, says dissenting
judge

Gordon Rayner, chief reporter
25 JANUARY 2017

udges should never have been allowed to rule on

how Brexit should be triggered because it is a matter for

politicians and not the courts, one of the Supreme Court
Justices said.
Lord Carnwath, one of three Justices who sided with
Theresa May, said the courts had taken too narrow a
view of the issues at stake and should have left it to
Parliament to settle its own affairs.
Together with fellow dissenters Lord Reed and Lord
Hughes, he said the Prime Minister was within her rights
to use the power of royal prerogative to trigger Article
50, but the three men were overruled by the eight other
Justices, who all concluded that the law required a
Parliamentary vote on the matter.
Ironically, two of the three judges who sided with the

Government are among the most Europhile of the 11member bench at the Supreme Court.
Lord Carnwath, 71, was one of four founders of the EU
Forum of Judges for the Environment and served as the
forums secretary from 2004-05.
The body exists to promote the enforcement of national,
European and international environmental law.
In his ruling, he said the High Court, which ruled last
year that a parliamentary vote was needed to trigger
Article 50, took too narrow a view of the constitutional
principles at stake.
"The article 50 process must and will involve a
partnership between Parliament and the Executive. But
that does not mean that legislation is required simply to
initiate it.
"Legislation will undoubtedly be required to implement
withdrawal, but the process, including the form and
timing of any legislation, can and should be determined
by Parliament not by the courts.
"That involves no breach of the constitutional principles
which have been entrenched in our law since the 17th
century, and no threat to the fundamental principle of
Parliamentary sovereignty."
He added that triggering Article 50 was simply the start
of an essentially political process of negotiation and
decision-making within the framework of [Article 50].

Cartoonist Adams' take on the ruling

Another of the three dissenters, Lord Reed, served as

president of the EU Forum of Judges for the
Environment from 2006-08. He also acted as an expert
adviser to the European Union Initiative with Turkey on
Democratisation and Human Rights between 2002 and
2004, and the following year he became chairman of
the Franco-British Judicial Co-operation Committee.
Lord Reed also served as a judge in the European
Court of Human Rights, where he was on a panel of
judges that decided in 1999 that Robert Thompson and
Jon Venables, the killers of toddler James Bulger, had
not received a fair trial.
Lord Reed said: It is important for courts to
understand that the legalisation of political issues is not
always constitutionally appropriate, and may be fraught
with risk, not least for the judiciary.
He pointed out that ministerial decisions using
prerogative powers included the declarations of war in
1914 and 1939.
He added: For a court to proceed on the basis that if a

prerogative power is capable of being exercised

arbitrarily or perversely, it must necessarily be subject
to judicial control, is to base legal doctrine on an
assumption which is foreign to our constitutional
traditions.
He said in his ruling that the European Communities Act
1972, which took Britain into Europe, imposes no
requirement, and manifests no intention, in respect of
the UKs membership of the EU.
The principle of Parliamentary supremacy over domestic
law, he said, does not require that Parliament must
enact an Act of Parliament before the UK can leave the
EU.
Lord Hughes, the third judge who dissented, decided that
the making and unmaking of treaties is a matter of
foreign relations within the competence of the
Government.
The Justices had been stung by criticism of their
colleagues in the High Court, who were described as
enemies of the people by some commentators when
they ruled last year that the Prime Minister could not
trigger Brexit without a vote in Parliament.
Lord Neuberger, President of the Supreme Court,
responded by saying at the start of the hearing last
month: The Supreme Court exists to decide points of
law which fall within its jurisdiction. The justices of the
court are of course aware of the public interest in this
case, and we are aware of the strong feelings associated
with the many other wider political questions
surrounding the United Kingdom's departure from the
European Union.
However...those wider political questions are not the
subject of this appeal. This appeal is concerned with legal
issues, and as judges, our duty is to consider those issues
impartially and to decide the case according to the law.

That is what we will do.

Act of Parliament needed because Brexit

will mean 'fundamental change' to UK
law, Supreme Court rules
Brexit can only be triggered by an Act of Parliament
because it will lead to a fundamental change in UK law,
Britains highest court decided.
In a widely predicted ruling, the Supreme Court, by an 83 majority, rejected the Governments argument that
ministers could use the power of royal prerogative to
invoke Article 50 of the Lisbon Treaty.
The decision was a blow for Theresa May, but there
was also good news for the Prime Minister when the
Justices unanimously agreed that there was no reason
to seek the agreement of the devolved powers,
because Brexit is a matter of UK law to be decided by
the UK Parliament.
Gina Miller, the campaigner who had brought the case
against the Government, said the decision, regarded
as one of the most important constitutional rulings in
decades, upheld the principle that Parliament alone is
sovereign.
All 11 Justices were present in Court No.1 of the
Supreme Court in London as its President, Lord
Neuberger, delivered a brief summary of their 96-page
ruling, which followed a four-day hearing in December.
He said: "By a majority of eight to three, the Supreme
Court today rules that the Government cannot trigger
Article 50 without an Act of Parliament authorising it to
do so."

Lord Neuberger CREDIT: AFP

Explaining the reasons for the ruling, he said

withdrawal from the EU would mean a "fundamental
change" to the UK's laws by cutting off one of its
sources - the European Union - as well as changing
the legal rights of British citizens.
"The UK's constitutional arrangements require such
changes to be clearly authorised by Parliament," said
Lord Neuberger.
The referendum is of great political significance, but
the Act of Parliament which established it did not say
what should happen as a result. So any change in the
law to give effect to the referendum must be made in
the only way permitted by the UK constitution, namely
by an Act of Parliament. To proceed otherwise would
be a breach of settled constitutional principles
stretching back many centuries.
On the issue of seeking the agreement of the devolved
powers, he said: The court unanimously rules that UK
ministers are not legally compelled to consult the
devolved legislatures before triggering Article 50.
The devolution statutes were enacted on the

assumption that the UK would be a member of the EU,

but they do not require it. Relations with the EU are a
matter for the UK Government.
Jeremy Wright, the Attorney General, who represented
the Government in court, said ministers were
disappointed with the outcome, but: "The Government
will comply with the judgment of the court and do all
that is necessary to implement it."
Downing Street said the Government respected the
Supreme Court's decision. A spokesman said: "The
British people voted to leave the EU, and the Government
will deliver on their verdict - triggering Article 50, as
planned, by the end of March. Today's ruling does
nothing to change that.

The fact that such an important and

contentious matter can be argued to our
highest court, and end with both sides
acknowledging and respecting the
decision, is something we should all be
deeply proud of.
Robert Bourns, president of the Law Society
The Government had launched an appeal at the Supreme
Court against an earlier High Court ruling that an Act of
Parliament was needed to trigger Article 50.
The case had been brought by Gina Miller, a
businesswoman and philanthropist who felt passionately
that Parliament as a whole should invoke Article 50,
rather than it being waved through by ministers.
She said the case went to the very heart of our
constitution and how we are governed.
"Only Parliament can grant rights to the British people
and only Parliament can take them away.

"No prime minister, no government can expect to be

unanswerable or unchallenged. Parliament alone is
sovereign.

What is Article 50? At a glance

Article 50 of the Treaty of Lisbon gives any EU member the right

to quit unilaterally, and outlines the procedure for doing so
There was no way to legally leave the EU before the Treaty was
signed in 2007
Gives the leaving country two years to negotiate an exit deal
Once set in motion, it cannot be stopped except by unanimous
consent of all member states
Any deal must be approved by a qualified majority of EU
member states and can be vetoed by the European Parliament
In November 2016, the High Court ruled that the Government
cannot trigger Article 50 without MPs voting on the matter first
Article 50 is a bit like The Bomb: best kept as an implicit threat.
Mats Persson, former special advisor to David Cameron

"This ruling means that MPs we have elected will

rightfully have the opportunity to bring their invaluable
experience and expertise to bear in helping the
Government select the best course in the forthcoming
Brexit negotiations - negotiations that will frame our
place in the world and all our destinies to come.
Liz Truss, the Lord Chancellor, said the independent
judiciary was the cornerstone of the rule of law,
adding: While we may not always agree with judgments,
it is a fundamental part of any thriving democracy that
legal process is followed.
But Iain Duncan Smith, the former Tory leader, said the
Justices had gone too far in "deciding to tell Parliament
how to run its business", suggesting they should in future
be appointed by Parliament, rather than through the
current system of independent appointments.
Mr Duncan Smith said the ruling had highlighted a
question of who is supreme, Parliament or "a selfappointed court".

Robert Bourns, president of the Law Society of England

and Wales, welcomed the certainty the ruling provided
on how Article 50 should be triggered.
He said: "The fact that such an important and
contentious matter can be argued to our highest court,
and end with both sides acknowledging and respecting
the decision, is something we should all be deeply proud
of.
"This response from both sides underlines how deeply
ingrained the rule of law is in our country, our culture,
and our institutions, and this is something we celebrate.
http://www.telegraph.co.uk/news/2017/01/24/article-50-ruling-brexitshould-mps-not-courts-says-dissenting/

May declines invitation to address Irish

parliament
January 25, 17

Theresa May.

Theresa May has declined an invitation to make a

historic address to the Irish parliament
The Prime Minister was asked by Taoiseach Enda
Kenny to give a speech in the Dail during a one-day
official visit to Ireland before the end of the month.
She would have been the first Tory leader, and only
the second British prime minister, to speak before
Dublins parliament - following on from Tony Blairs

ground-breaking address in 1998.

But Mr Kenny has indicated that Mrs May has turned
down the offer, originally advanced by the house
speaker, or Ceann Comhairle, on a suggestion from
the Green Party.

My understanding is that the Prime Ministers
schedule will not allow that to happen and I am not in
control of that schedule, Mr Kenny told the Dail.
Obviously, when details are absolutely finalised, we
will be aware of those.
My understanding is that the visit was to come to
Government Buildings to have a Taoiseach to Prime
Minister discussion, and to follow that with a
particular set of issues.
It is around this that the visit will take place.
Mrs May and Mr Kenny are due to meet in Dublin to
discuss Brexit.
Green Party leader Eamon Ryan had said it was vitally
important that Mrs May sets out her views on how
Brexit will affect Ireland during her visit.
Last November, Scotland First Minister Nicola
Sturgeon got a standing ovation when she addressed
the upper house of parliament, the Seanad.
http://www.newsletter.co.uk/news/may-declines-invitation-toaddress-irish-parliament-1-7789577

Gerry Adams
Brexit claims

unfounded, insist
government

The British government has said Gerry Adams

claims Brexit will destroy the Good Friday
Agreement are unfounded.
The Sinn Fein president alleged fundamental human
rights enshrined in the 1998 accord to end violence
could be undermined.
The top legal adviser to Stormont ministers has said
not one word in the Agreement would be affected.


A statement from the Government said none of the
institutions and provisions set out in the Belfast
Agreement, including those relating to human rights,
are in any way undermined by the decision of the UK
to leave the EU.


It added: These comments are totally without any
basis in fact.
The Sinn Fein leader said Northern Ireland should
enjoy special status within the union of 27 states after
Brexit, and claimed that would not affect the
constitutional settlement which secures its status as
part of the UK.
The Government said: The UK Government is fully
behind the implementation of the Belfast Agreement
and its successors, including Stormont House and
Fresh Start. There will be no return to the borders of
the past.
We are also working intensively to ensure that
following the forthcoming election strong and stable
devolved government that works for everyone is reestablished in Northern Ireland.
Mr Adams, a Dail TD (member of the Irish
parliament), addressed a conference on achieving a
united Ireland in Dublin on Saturday.
He said: The British Governments intention to take
the North out of the EU, despite the wish of the people
there to remain, is a hostile action.
Not just because of the implications of a hard border
on this island, but also because of its negative impact
on the Good Friday Agreement.
The British Prime Minister repeated her intention to
bring an end to the jurisdiction of the European
Court.
Along with her commitment to remove Britain from
the European Convention on Human Rights, this
stand threatens to undermine the fundamental

human rights elements of the Good Friday

Agreement.

Unionists and
nationalists clash
on Brexit ruling
January 27, 17

Unionist and nationalist parties in Northern

Ireland have given sharply contrasting reaction to
todays Supreme Court ruling on Brexit.
Judges decided that Parliament must vote on whether
the government can formally start the Brexit process.
The ruling means The Prime Minister cannot begin
talks with the EU until MPs and peers give their
backing. However they are expected to do so before
the governments 31 March deadline.


Judges also ruled that the devolved assemblies in
Northern Ireland, Scotland and Wales do not need a
say in the process.

East Antrim DUP MP and member of the Westminster
Brexit committee, Sammy Wilson, said it was
disappointing that the Supreme Court had not found
in the Governments favour and thus gave antidemocratic losers within the remain camp to conduct
a parliamentary guerrilla warfare against the decision

by the people of the United Kingdom to leave the EU.

He welcomed the fact that devolved administrations
would have no veto on the process an said his partys
MPs would continue to back Brexit.
But Sinn Fein President Gerry Adamss response was
to call on the Irish government to play a role in
defending the rights of Irish citizens in the North.
He added: The Taoiseach and the Irish Government
must uphold the Remain vote in the North. And to
argue for the North to be accorded a special
designated status within the EU. There are precedents
for this.
Ulster Unionist MPs Tom Elliott and Danny Kinahan
said the ruling gave welcome clarity.
They added: The Supreme Court has ruled that
Parliament must have a say on the triggering of
Article 50. However we recognise that Parliament
voted to give the people of the United Kingdom the
opportunity to vote in a straight in/out referendum.
They will vote to support Brexit in Parliament and
welcomed the fact that devolved administrations
would have no say in the process, they said.
The challenge now is to secure the best deal for
Northern Ireland.
But SDLP Leader Colum Eastwood MLA branded the
judgement significantly undermines the value placed
on the democratic mandate of our Assembly.
He added: Northern Ireland voted to remain in the
European Union, yet the Northern Ireland Assembly
is being denied any role or rights in the upcoming
negotiations with the European Union.
Although the Supreme Court disagreed with the view
that there is a legal requirement to gain legislative

consent from Stormont, he said, it remains the SDLP

view that it is a political requirement to gain that
consent. This will be top of the SDLP agenda in any
post-election negotiations, he said.
Alliance MLA David Ford also welcomed the Supreme
Court ruling.
Brexit has such fundamental implications for the
wider UK and specifically Northern Ireland, it would
have been an affront to democracy to if the formal
triggering of Article 50 was not subject to detailed
scrutiny and accountability by Parliament, he said.
This means the Government should now produce a
much more detailed plan and their Bill may be subject
to amendments before it can move through
Parliament, he said.
However, the decision to exclude the devolved
assemblies from the process raises significant issues
for the future of devolution across the UK, he added.
Green Party MLA Steven Agnew, a plaintiff in a legal
challenge against Brexit, welcomed the outcome.
This decision upholds democratic principles and
provides an opportunity for consideration of the
specific circumstances of Northern Ireland, he said.
It is important that all Northern Irelands MPs and
Lords do their job and ensure that our special status
is recognised as the only UK region that will have a
land border with an EU member state.

Dublin might have

to opt for Irexit

and quit EU, says

Irish diplomat

Prime Minister David Cameron (right) welcomes Taoiseach Enda

Kenny to 10 Downing Street in London in November 2015. But
Dublin did not help Mr Cameron in the EU referendum, says a
former Irish diplomat. Photo: Jonathan Brady/PA Wire

Article Byline
BEN LOWRY
Friday 27 January 2017

Comments CTA END Comments CTA

PSTYLE=WINT Web Intro
The Republic of Ireland should not rule out
leaving the European Union, a senior former
Irish diplomat has said.
Ray Bassett says that the Irish state faces a
momentous decision after Brexit, but has

stubbornly chosen to stick with the EU regardless.

Mr Bassett, writing in the News Letter today,
says Dublin should instead keep its options open.
The Republic of Ireland should not rule out leaving the
European Union, a senior former Irish diplomat has said. Ray
Bassett says that the Irish state faces a momentous decision
after Brexit, but has stubbornly chosen to stick with the EU
regardless. Mr Bassett, writing in the News Letter today, says
Dublin should instead keep its options open.

The Republics ex ambassador to Canada, Jamaica

and Bahamas is one of the first establishment
figures south of the border to float the idea of
IrexitIreland leaving the EU.
Mr Bassett writes: The Irish state faces a
momentous decision in the wake of the Brexit vote.
That decision will shape its future to decide
whether to continue to be part of Team EU; or
alternatively once the UK leaves, that its future lies
more with the North Atlantic Anglophone world.
He adds: Therefore, the decision of the Irish
government to peremptorily stick with Team EU,
regardless of the outcome of the Brexit
negotiations, is perplexing to say the least. I have
never heard of a country going into negotiations
without a bottom line before.
Mr Bassett says that Dublin did not lift a finger to
give [David] Cameron a decent hand in the
referendum.
Now that that vote has been lost, he says the Irish
Department of Finance has outlined a dire scenario
in the event of a hard Brexit but has not examined

the cost of leaving the EU and keep a free trade area

with post Brexit Britain.
It is, he says, the height of folly not to consider all
options
http://www.newsletter.co.uk/news/dublin-mighthave-to-opt-for-irexit-and-quit-eu-says-irishdiplomat-1-7793646

Dublin needs to
keep its options
open, including
quitting the EU

Prime Minister David Cameron and Taoiseach Enda Kenny

pictured at Downing Street in January 2016. Dublin "did not lift a

finger to help Cameron in the referendum," despite the fact that

Brexit will have a hugely negative impact on Ireland, says Ray
Bassett

RAY BASSETT
January 27, 17

The Irish state faces a momentous decision in the

wake of the Brexit vote.
That decision will shape its future to decide
whether to continue to be part of Team EU; or
alternatively once the UK leaves, that its future lies
more with the North Atlantic Anglophone world.

Ray Bassett, former Irish ambassador to Canada, Jamaica and

Bahamas

Ireland joined the EU, along with the UK, in 1973.

Given the circumstances of the time, the country
had no real option. Today, circumstances have
changed and these questions and answers are not
so clear cut.

Ireland is a much-changed country, being those

with the highest per capita incomes in the EU and
with a much more diversified set of relationships,
both economic and political, than in 1973.
However, the older connections still have huge
resonance. Irelands SME sector is still much more
connected to the British market than its modern FDI
related industries. When the recession struck in
2008, Irish people moved mainly to Britain, Canada
and Australia, not mainland Europe.
Therefore, the decision of the Irish government to
peremptorily stick with Team EU, regardless of the
outcome of the Brexit negotiations, is perplexing to
say the least. I have never heard of a country going
into negotiations without a bottom line before.

Brexit - Ireland is planning for the eventuality of a hard Brexit but is

not planning for the option of Irexit

There were no recriminations in Dublin against their

wholly misguided policy of siding with the EU during
the Cameron re-negotiations. Brexit will have a
hugely negative effect on Ireland but the
government in Dublin did not lift a finger to give
Cameron a decent hand in the referendum.
There was deep scepticism among Irish
government officials about the possibility of the
referendum being carried. It was a game of chicken
and when the bluff was called, officials started
scrambling for a coherent response.
The Irish Department of Finance has outlined a dire
scenario in the event of a hard Brexit. It estimated
that in such circumstances, exports to Britain could
decline by 30%; and a fall of 40,000 people in work.
Whatever about the accuracy of any economic
forecast, it is abundantly clear that a hard Brexit
would have very serious consequences for the
Republic.
Curiously enough, that department has not produced
figures about the outcome economically of deciding to
leave the EU and keeping a free trade area with post
Brexit Britain.
While the details of a UK (and possible Ireland) trade
deal with the EU have not been outlined, it would be
possible to use WTO type access to the EU markets as
the base line for an estimate.
The Irish government must also take into
consideration that the Belfast or Good Friday
Agreement (GFA) was agreed under the umbrella of
both Britain and Ireland being members of the
European Union.


Therefore, there must be serious doubts about the
sustainability of the GFA and St Andrews Agreement,
if the basis on which they were constructed is altered
by a hard Brexit.
The EU is changing and there are moves afoot to
attack the foundation on which Ireland built its recent
success, namely its advantage in tax terms in securing
a huge proportion of American FDI. The move in the
EU towards a more harmonised tax arrangement and
a vigorous campaign at OECD and G20 levels against
aggressive corporate tax avoidance means that
Irelands current arrangement will be constantly
under attack. Without the UK as a strong and reliable
ally inside the EU, the Irish ability to resist will be
compromised
The Irish government, its politicians and officials, are
working hard to plan for a hard Brexit. This is very
laudable but in some ways, it represents another
example of Groupthink.
The whole political establishment seems to have
taken the same line. The alternative, a decision to
hold off any decision until the outcome of a deal
emerges, does not seem to have been given any
serious thought. The very idea that Ireland might
leave the EU, if the deal is bad enough, is literally
beyond the Pale for the Dublin establishment.
The EU itself will not want Ireland thinking about
Irexit. As with the UK, albeit on a smaller scale,
Ireland is a net contributor to the EU budget, paying
in more to the EU than it receives in the various EU
programmes.

The country has become a poster boy for economic

recovery in the EU, even though the Republics good
economic performance was despite the EU rather
than because of it.
I still hope that a relatively soft Brexit can be
negotiated which would allow for a single labour
market in these islands, the maintenance of the
Common Travel area; and full and free trade between
the UK and the remaining members of the EU.
However, this is unlikely and it is the height of folly
not to consider all options, including Irexit.
Ireland needs to keep all its options open.
Ray Bassett is former Irish Ambassador to
Canada, Jamaica and Bahama
http://www.newsletter.co.uk/news/opinion/dublin-needs-to-keep-its-optionsopen-including-quitting-the-eu-1-7793643

EU referendum: The solution to this

EU mess lies in Article 50
Our politicians need to tackle the fundamental
problem at the heart of our membership

By Christopher Booker
5:39PM BST 11 May 2013

In all the brouhaha over a Euro-referendum unleashed in the wake

of that surge in the polls by Ukip, it is hard to know who is talking
the emptiest fluff. We really are paying the price for all those years
when our politicians and media were so keen to bury our European
system of government out of sight that they have little idea of the
harsh realities of the situation in which we find ourselves.
We have Tory MPs piling in to demand an in-out referendum
before 2015, which they are not going to get. We have former
political heavyweights such as Lord Lawson, Denis Healey and
Norman Lamont queuing up to say that if there were such a
referendum they would vote to leave. Weve even got Nick Clegg
and those poor little BBC presenters locked in a 13-year-old time
warp, trying to tell us that, if we did leave, 3.5 million British jobs
would vanish because our trade with our European neighbours
would somehow dry up overnight.
None of this bears any more relation to where we actually are, as
one of the 27 fully signed-up members of the EU, than David
Camerons threefold dollop of wishful thinking that, if only we reelect him in 2015, and if only he can somehow persuade his EU
colleagues to hand back a few unspecified powers of government
in breach of the most basic principle on which the EU was
founded he can somehow lead the Yes campaign in 2017 to a
referendum vote for Britain to stay in.

It is true we may one day by law have to have a referendum,

whichever party is in power, because sooner or later the drive to

give Brussels even more powers in its efforts to save the doomed
euro will require a new treaty. But in the meantime Mr Cameron is
terrified that, unless we stay in the EU, we will lose the right to
trade freely with its single market. Lord Lawson, in his own
muddled way, seems equally to think that, by leaving, we would
indeed be excluded from the single market, but that this would be
OK because it would somehow bring us a positive economic
advantage.
The truth is that there is only one way we can get what they, and
most people, seem to want, but none of them, except occasionally
Nigel Farage, ever mentions it. The only way we can compel our
EU partners to negotiate a new relationship which would still give
us access to the single market is by invoking Article 50 of the
Lisbon Treaty. Only thus can we negotiate precisely the kind of
relationship already enjoyed, in their different ways, by the two
most prosperous countries in Europe, Norway and Switzerland,
which trade as freely with the EU as we do, but without the rest of
that political baggage that inspires such growing resentment not
just in Britain, but in many other EU member states.
This, of course, catches out Mr Cameron, because Article 50 can
only be invoked by a country announcing its wish to leave the EU.
He flatly refuses to recognise that it is perfectly possible to
continue trading freely with the EU without belonging to it.
Lord Lawson falls into the opposite trap by also imagining that
leaving the EU means being excluded from the single market,
although he seems to think this could be an advantage because
we could somehow make up for it by increasing our trade with the
rest of the world. But both these men, like countless others, are
living in cloud-cuckoo land. They will not bring their thinking back
to earth by looking hard-headedly at the rules of the game.
The only way we can now face up to the reality of the plight we are
in is by putting Article 50 at the very centre of the national debate.
It is the only way we can get the best of both worlds that so many
people say they want.
Unless we do so, we are doomed to wander on in a fog of wishful
thinking that can only continue to leave us with the worst of all
worlds ruled by a dysfunctional system of government that we
increasingly resent, but refuse to understand. In the words of Lady
Thatcher I have quoted before, from her book Statecraft, that we
should ever have become absorbed into this European
superstate will one day be seen as a political error of the first
magnitude.

If we really wish to remedy that error, the only practical way that
can be brought about is by invoking Article 50.
Strange weather is normal
When Boris Johnson entertained his readers last week with his
account of a bike ride to the Chilterns, he described how he was
greeted by the sight of hawthorn blossom like gun smoke
exploding across the hill-sides. What I suspect he saw was not an
early sight of the frozen firework displays of hawthorn blossom, but
this years late flowering of blackthorn, as I confirmed when
travelling through the Chilterns last week, and seeing it still shining
white in the hedgerows.
It is true that for some years the hawthorn did flower very much
earlier than normal (in 2010 I saw it in Somerset on April 25). This
prompted environmental journalists who know little about nature to
hail it as one of the proofs, along with primroses in December, that
the world was in the grip of runaway warming. But since nature
has since returned to its former patterns (last years hawthorn
didnt come into flower until May 22), they have gone strangely
quiet about such things.
The new party line, as we know, is to promote their cult by going
on about anything that can be called an extreme weather event,
as if such things never happened before, so that any unusual
flood, drought or snowfall can be seen as further proof of warming
that otherwise remains largely invisible.
I was lately reading the diary entries by Pepys and Evelyn, noting
the plethora of extreme weather events in the 17th century, when
scarcely a year went by when they could not describe some flood,
drought, storm or blizzard as being unknown in the memory of
man. But the 17th century, of course, was the height of the Little
Ice Age, when the world was colder than it had been in 13,000
years. Those environmental zealots so eager to blame any
aberration in our weather on man-made warming seem to know as
little of history as they do of nature.
Arctic heroes honoured at last
The sight of 39 aged veterans lined up on the shores of Loch Ewe,
Scotland, to be given Arctic Star medals, and to stand in silent
memory of their 3,000 comrades who died on those 78 convoys
that battled against all odds to bring military supplies to northern
Russia between 1941 and 1945, marked the end of one of the
more curious political blunders of our post-war history.
For 68 years successive governments refused to recognise the
heroism of those who survived what Churchill called the worst
journey in the world by giving them medals.

When in 2011 the Russian government struck a medal for the

veterans, our Foreign Office forbade them to wear it. Worse still, in
Parliament, a junior Tory defence minister, Andrew Robathan,
contemptuously refused yet another call for a British campaign
medal, saying that Britain does not throw around medals like
Colonel Gaddafi and Saddam Hussein. We award them, he said,
only for risk and rigour.
My family took a personal interest in all this because my uncle,
Lieutenant-Commander Neil Boyd, was captain of the corvette
HMS Poppy, which escorted several convoys, including PQ 17, the
deadliest of all. Of 35 merchant ships that left Iceland, only 10
reached Murmansk.
My uncle twice won the Distinguished Service Cross for his service
in the Atlantic and North Africa, but was among the thousands of
survivors of the Arctic convoys who died before
the Government finally agreed to honour their heroism in a
campaign as cruelly packed with horrors as any in the war.
We should be grateful to all those who fought for so long to
redress this wrong, including the Tory MP Caroline Dinenage who,
in 2011, told Mr Robathan that the disgusting policy he supported
had brought shame on our country.
For some, the memory of that shame is still not wholly erased.

Brexit: contempt for

Parliament (updated)
Friday 27 January 2017

In response to the referendum held on 23 June 2016, the

Prime Minister on 2 October 2016 the Prime Minister
announced that the Government would commence the
formal process of leaving the European Union before the
end of March 2017, thereby formally signalling that the
United Kingdom had decided to withdraw from the
European Union.
That decision has not been challenged and no-one has
questioned whether the Prime Minister with or without
Cabinet approval has the right to make that decision.
This then kicks in the Article 50(2) of the Treaty of the

European Union, which states: "a Member State which

decides to withdraw shall notify the European Council of
its intention". This is a legal obligation, imposed on the
UK Government by virtue of Section 2 of the European
Communities Act 1972. Subsection 1, which states:
All such rights, powers, liabilities, obligations and
restrictions from time to time created or arising by or
under the Treaties, and all such remedies and procedures
from time to time provided for by or under the Treaties, as
in accordance with the Treaties are without further
enactment to be given legal effect or used in the United
Kingdom shall be recognised and available in law, and be
enforced, allowed and followed accordingly.
In accordance with the ECA 1972, therefore, the United
Kingdom Government, having decided to withdraw of the
EU, is obliged to take note of Article 50(2) TEU, and notify
the European Council of its intention.
And there the matter should have rested, but for a number
of activists, a series of misguided court cases and a wholly
inadequate Supreme Court which managed to misdirect
itself and deliver a fatuous judgement that managed
completely to miss the point.
In response, the Government has produced the European
Union (Notification of Withdrawal) Bill, the substantive
part of which runs to two lines (23 words), declaring: "The
Prime Minister may notify, under Article 50(2) of the
Treaty on European Union, the United Kingdom's
intention to withdraw from the EU".
Given the amount spent on legal fees and court expenses,
that must work out at several million pounds per word, all
so Parliament can "permit" the Prime Minister to do
something she is already legally obliged to do.
And now we have Helen Goodman MP complain that
Government showing contempt for Parliament in offering

only three days for the committee stage of the Bill. That's
fine for Government, but how do we the ordinary people
show contempt for Parliament and, as Pete ponders, is it
deserving of anything else?
At least, though, no one of any significance is suggesting
that Article 50 is not the operative instrument. But, from
there to here, via here, it's been a long, long journey.
Even then, in May 2013, Booker writing that "the solution
to this EU mess lies in Article 50", I was being called a
"useful idiot". It was then being argued that:
The Gordian knot of Article 50 can be cut simply by
passing an Act of Parliament repealing all the treaties that
refer to the EU from the Treaty of Rome onwards. No
major UK party could object to this because all three have,
at one time or another, declared that Parliament remains
supreme and can repudiate anything the EU does if it so
chooses.
Mr Davis, the previous year, in November 2012, was
telling us that his preference was "that we should remain
within the Customs Union of the EU".
But if the EU did not want to do that, the other options, he
said, "are pretty attractive too. The Swiss free trade area
approach would allow us to negotiate advantageous trade
deals with non-EU countries. It is this sort of option that
offers Britain the 'European Hong Kong' strategy. So UK
negotiators would have the luxury of negotiating for one of
several options, all better than our current status".
At the time, Mr Davis was actually arguing for two
referendums: a "Mandate referendum" to give a
Conservative Prime Minister a mandate "to get as close as
possible to the trading alliance, the common market we all
voted for in 1975".
If passed, voters would have made it clear that they want

to leave the EU as it presently stands. Next, if the people

had voted "yes", there would be a renegotiation with the
aim of getting as close as possible to that trading alliance.
And finally, he said, there would be a second referendum
a "Decision Referendum" which would give voters the
option of accepting the renegotiation terms.
At least we have moved on from there but not that
much. We still lack clarity and direction, while Mr Davis,
more then four years on, is now Secretary of State for
Brexit. And what he's offering now isn't much better than
we was suggesting then.
Meanwhile, we have this Parliamentary farce to endure.
http://www.telegraph.co.uk/news/newstopics/eureferendum/10050582/EUreferendum-The-solution-to-this-EU-mess-lies-in-Article-50.html

EUROPEAN UNION CONSOLIDATED TREATIES CHARTER OF FUNDAMENTAL
RIGHTS
https://europa.eu/europeanunion/sites/europaeu/files/eu_citizenship/consolidated-treaties_en.pdf
European Communities Act 1972
http://www.legislation.gov.uk/ukpga/1972/68/pdfs/ukpga_19720068_en.pdf
EUROPEAN UNION (NOTIFICATION OF WITHDRAWAL) BILL EXPLANATORY
NOTES What these notes do These Explanatory Notes relate to the European
Union (Notification of Withdrawal) Bill as introduced in the House of Commons
on 26 January 2017 (Bill 132).
http://www.publications.parliament.uk/pa/bills/cbill/20162017/0132/en/17132en.pdf
misguided court cases and a wholly inadequate Supreme Court which managed
to misdirect itself and deliver a fatuous judgement that managed completely to
miss the point.
https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf
Government has produced the European Union (Notification of Withdrawal) Bill,
the substantive part of which runs to two lines (23 words), declaring- "The
Prime Minister may notify, under Article 50
http://www.publications.parliament.uk/pa/bills/cbill/20162017/0132/17132.pdf
Europe- Its Time to Decide A Strategy for Deciding the UKs Relationship with
the European Union back in 1973
http://conservativehome.blogs.com/files/david-davis-----it-is-time-todecide.pdf

Commission Regulation (EU) No 1129/2011, "amending

Annex II to Regulation (EC) No 1333/2008 of the

European Parliament and of the Council by establishing a

Union list of food additives". This is a straightforward
technical regulation and as long as we keep it in force, our
trade with the EU
http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32011R1129&from=EN

Regulation 1380/2013 which sets out the current

parameters for the Common Fisheries Policy. If Ministers
think they can simply re-enact this at a UK level, they may
be rather disappointed.
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:354:0022:0061:en:PDF

In the first instance, they will find that the regulation

applies to "Union waters", meaning "waters under the
sovereignty or jurisdiction of the Member States" - with
certain minor exceptions. That, in itself cannot be
allowable, so this and the 22 other references to "union
waters" would have to be removed, and selectively
replaced with the term "UK waters", which would then
have to be defined.

Equally, since the Regulation would now apply to the UK,

all 209 references to the term "Member State" in singular
and plural form would have to be removed. However,
simple substitution would not be enough. Looking, say, at
Article 13, we see it is headed: "Member State emergency
measures".
This tells us that, in the event of a serious threat to the
conservation of marine biological resources in its own
waters, a Member State may adopt emergency measures to
alleviate the threat. But, it goes on to say:
Where emergency measures to be adopted by a Member
State are liable to affect fishing vessels of other Member
States, such measures shall be adopted only after
consulting the Commission, the relevant Member States
and the relevant Advisory Councils on a draft of the
measures accompanied by an explanatory memorandum.
The consulting Member State may set a reasonable

deadline for the consultation which shall, however, not be

shorter than one month.
Here there are several problems. Firstly, we could hardly
have a situation, post-Brexit, where the UK would have to
consult the Commission before taking action, nor other
Member States, and nor would it consult any "Advisory
Councils", which are very much an EU creation. There
would have to be substantial modification to this Article.
We get an even more serious problem with Article 16,
which requires that:
Fishing opportunities allocated to Member States shall
ensure relative stability of fishing activities of each
Member State for each fish stock or fishery. The interests
of each Member State shall be taken into account when
new fishing opportunities are allocated.
This is an issue specific to the CFP and very much inimical
to UK interests. The entire Article would have to be
removed, and following Articles renumbered.
Going back a bit to the earlier reference to "Advisory
Council", we find that there are 45 such references, all of
which would have to be removed with adjustments to
the associated text, such as in Article 14. Here, in order to
avoid and minimise unwanted catches, Member States
"may conduct pilot projects, based on the best available
scientific advice and taking into account the opinions of
the relevant Advisory Councils". Obviously, the latter part
of the sentence would have to be removed.
Then, one assumes that this Article might be addressed to
devolved government, so it would be pointless just
replacing the words "Member State" with the UK. One
might address it to the devolved authorities, in which case
these have to be defined within the context of the
Regulation as whole, requiring further amendment.
Moving on to Article 18, this deals with regionalisation, we

see that Member States may work together to submit to

the Commission joint recommendations on conservation,
in respect of specific geographical areas, which can then be
adopted by the Commission as part of its multiannual
plan.
It would seem that this whole Article must go, but that
begs the question as to what to do with the other 111
references to the Commission, much of which allocated to
it powers or responsibilities. One would assume that these
references must go, and the associated text tidied up.
The complexity of this problem is illustrated by Article 22
which requires Member States shall send to the
Commission, by 31 May each year, a report on the balance
between the fishing capacity of their fleets and their
fishing opportunities. Then, "to facilitate a common
approach across the Union", the report has to be
"prepared in accordance with common guidelines which
may be developed by the Commission indicating the
relevant technical, social and economic parameters".
One would expect this Article to be removed in its entirety,
except that, as respects devolved governments and the
fleets regulated by them, the Secretary of State might
require his own information, in which case there would
have to be a substantial modification.
As regards Article 24, Member States are required to
record the information on ownership, on vessel and gear
characteristics and on the activity of Union fishing vessels
flying their flag that is necessary for the management of
measures established under the Regulation. They must
then submit that information to the Commission which in
turn has to maintain a Union fishing fleet register
containing the information received.
Clearly, this Article cannot just be removed as the UK

Government will need to keep its own register of UK

fishing vessels. This, the Article will have to be re-written
to require (or authorise) the Secretary of State to maintain
a register, it must set out the information needed, and it
must then require fishing vessel owners to provide that
information.
Another problematic area comes with Article 27 which
requires Member States to carry out fisheries and
aquaculture research and innovation programmes,
coordinated with other Member States and in close
cooperation with the Commission all in the context of
the Union research and innovation frameworks, involving,
where appropriate, the relevant Advisory Councils.
This Article would probably have to go, except that there
would need to be a replacement, to permit devolved
authorities (and the Secretary of State if needed) to carry
out research.
Then, there is another problem to confront, this one in the
use of the word "Union", meaning European Union. We
see this in Article 36, which requires that "compliance with
the CFP rules shall be ensured through an effective Union
fisheries control system". Clearly, this cannot be allowed
as part of a UK policy, so it would appear that the whole
Article would have to be removed.
However, within the body of the Regulation there are 192
references to the "Union", almost certainly requiring
removal and the associated text. Specifically, for instance,
it would be unacceptable to require UK law to be "coherent
with the Union environmental legislation".
That then brings us to Article 37, which requires an expert
group on compliance to be established by the Commission
to assess, facilitate and strengthen the implementation of,
and compliance with, the obligations under the Union

fisheries control system. This has to be composed of

representatives of the Commission and the Member States
and the European Parliament is allowed to send experts to
attend meetings.
There are, in fact, 31 separate mentions of the European
Parliament, and another 30 referring to the Council (of
Ministers), many in relation to additional legislation,
which may or may not apply. These references will have to
be reviewed, and most removed.
From there, the overall point emerges that, in order to
make this Regulation fit for purpose, hundreds of
amendments will be required. It would not be possible
simply to re-enact them without change. Then, to make it
fully functional, there will have to be many focused
additions to take account of our specific systems and the
responsibilities of devolved government.
http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32006R1921&rid=15
Furthermore, it is a highly dynamic document. From its
original 40 pages in 2013, the consolidated version has
grown to 66 pages, intensifying the load. This, however, is
not the least of it. Under the fisheries heading in the
acquis, there are 1,413 pieces of legislation, including 1,122
Regulations. Most are routine management instruments
with no relevance to the UK, so the first requirement
would be to screen for relevance.
http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32016R2336&qid=1485369793670&from=
EN

illustration is Commission Delegated Regulation (EU)

2016/2250 establishing a discard plan for certain
demersal fisheries in the North Sea and in Union waters of
ICES Division IIa
http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32016R2250&qid=1396614388308&from=
EN