Friday, 29 December 2017

Brexit - end of year view

The Snowman
On 24th January the Supreme Court of the UK handed down its judgment in the Miller and Dos Santos litigation - post 24th January.  By a majority of 8 to3 the court held that an Act of Parliament was required to authorise the giving of notice under Article 50.   The Act was duly passed - European Union (Notification of Withdrawal) Act 2017 and the Prime Minister sent the notice to the EU on 29th March 2017 triggering the Article 50 two year period - post 29th March.

 The last weekend of 2017 is now here and, unsurprisingly, Brexit continues to dominate much of the news.  Whilst one might reasonably have expected
a clear "Brexit plan" to have been presented by government to both Parliament and the people, we find ourselves amid astounding lack of clarity as to what type of Brexit the British government is actually seeking.  The EU has called on the British government to "provide further clarity on its position on the framework for the future relationship" - Guidelines 15th December at para. 9.  On the need for greater clarity see Policy Network 29th December - Associate or dissociate: it’s make your mind up time

The guidelines state that the UK has does not intend to participate in the Single Market or Customs Union after the end of the transition period - Guidelines para 7.  How that was decided is not clear to me.  Was there a Cabinet decision or just a Prime Ministerial diktat?  There does not appear to be any clear Parliamentary acceptance of that position but it appeared in Theresa May's Lancaster House Speech (17th January 2017), the White Paper (February 2017) and also in her speech at Florence (22nd September).   See also the debate 2nd February - Exiting the EU: New Partnership


The Guidelines also refer to a transition period of around 2 years - (para 3).  Michel Barnier, the EU Chief Negotiator, has since stated that the transition would end on 31st December 2020 - see Express 20th December.  That coincides with the EU 7-year budget timescales.

During 2018 there will be much to be done against a very short timescale given that the Article 50 two year period ends in just 15 months from now.  The work yet to be done is well discussed by Paul Waugh in this Huffington Post article and by Professor Chris Grey on his blog - 2018: the year that Brexit gets real.

Sectoral reports:

Had the government undertaken detailed "impact assessment" of Brexit on key sectors of the economy?  It turned out that there were "sector analyses" but not "impact assessments."

The story of how the House of Commons obtained "Sectoral Analyses" was covered in these posts:

An Humble Address to Her Majesty (1st November 2017)

Brexit: the non-existent impact assessments demanded by the Humble Address (8th November)

Brexit material and Parliament - Contempt? (28th November)

The analyses have been criticised as "simplistic and uninformative" - a "shoddy mess" and "a masterclass in cut and paste."

On 21st December, the Committee for Exiting the EU published 39 "Sectoral Reports" but they are stripped of "commercially, market or negotiation sensitive information" and the committee decided not to publish "Sectoral Views" even though they had been supplied to the committee by the government.  For those who wish to do further research, the reports contain many footnotes including internet links.

There are also the reports of Parliamentary committees - see the links below.

Treasury reports:

The Treasury is coming under some political pressure to publish its own assessment of Brexit - The Guardian 26th December - where it is reported that twenty-five Labour MPs have written to the chancellor demanding that he release the studies.  Already in the public domain are some pre-referendum Treasury reports - Immediate Economic Impact of Leaving the EU (23rd May 2016) and Long term economic impact of EU membership and the alternatives (18th April 2016).

EU (Withdrawal) Bill:

The European Union (Withdrawal) Bill completed its Committee Stage in the House of Commons on 20th December with only only Clause 9 amended which I wrote about HERE.  Clause 9 is just one of the powers which Ministers are seeking to make Regulations and the amendment prevents use of the Clause unless there is prior enactment of an Act of Parliament approving the final terms of withdrawal.   The Bill as amended may be seen HERE and there is extensive analysis of it via the following links:

Professor Mark Elliott 14th August - The Devil in the detail: Twenty questions about the EU (Withdrawal) Bill

Professor Phil Syrpis (Professor of EU Law Bristol) - European Union (Withdrawal) Bill: paving the way towards a very uncertain future.

Constitution Unit UCL - European Union (Withdrawal) Bill - Constitutional change and legal continuity and To devolve or not to devolve - the EU (Withdrawal) Bill and devolution

The House of Lords Select Committee on the Constitution - The "Great Repeal Bill" and delegated powers

and also the posts on this blog - HERE


There is a possibility that further litigation will come during 2018 - see Crowdjustice  - "Earlier this week we wrote to David Davis MP and the Advocate General for Scotland asking them to set out the Government's position on whether the Article 50 notice can be unilaterally withdrawn. We gave them fourteen days to confirm that the  Government accepts that it is legally possible as a matter of EU law for the UK unilaterally to withdraw its Article 50 notice."

Article 50 TEU is part of EU law and, ultimately, only the Court of Justice of the EU can pronounce on its meaning.  The revocability of the Art 50 notice was discussed on this blog back in October.

Ideology or for the national good?

My pre-referendum analysis of Brexit is on this blog and led me to the conclusion that remaining in the EU was the better option for the UK - (post 21st June 2016).  Obviously those demanding Brexit (in whatever form) will disagree with the view but it ought to have been for them to produce clear evidence that the national interest would be improved by Brexit.   There is scant evidence of that and much to suggest the opposite.  Nothing that I have seen points toward "sunlit uplands" in the years following Brexit.    Pursuit of Brexit appears to be no more than Eurosceptic ideology which asserts that, following the referendum, it is "the will of the people" whilst ignoring the distinct possibility that it may no longer be the will of the people in the light of what is now known.   Ultimately, these are political questions and the law will be adapted to cope with whatever emerges.  In business there is a need for the greatest clarity possible and it is to be hoped that this will come during 2018.

: Parliamentary Committees and Sub-Committees :

- House of Commons -

·  European Scrutiny Committee

The European Scrutiny Committee assesses the legal/political importance of EU documents

·  Exiting the European Union Committee

The Exiting the European Union Committee examines the expenditure, administration and policy of the Department of Exiting the European Union

House of Lords - 

·  EU Select Committee

The EU Select Committee is appointed to consider EU documents and other matters relating to the EU

·  EU Energy and Environment Sub-Committee

The Sub-Committee scrutinises EU proposals on agriculture, fisheries, environment and energy including the Common Agricultural and Fisheries Policies (CAP and CFP), environmental protection, climate change, maritime affairs and energy policy

·  EU External Affairs Sub-Committee

The Sub-Committee scrutinises EU proposals on external affairs including European defence and security, international trade and development and foreign affairs

·  EU Financial Affairs Sub-Committee

The Sub-Committee scrutinises EU proposals on economic and financial affairs

·  EU Home Affairs Sub-Committee

The Sub-Committee scrutinises EU proposals on health, education and sport and home affairs including police cooperation, asylum and migration, counter-terrorism, and civil protection

·  EU Internal Market Sub-Committee

The Sub-Committee scrutinises EU proposals on Internal Market, Infrastructure and Employment including energy, industry, transport, communications, research and space

·  EU Justice Sub-Committee

The Sub-Committee scrutinises EU proposals on civil and criminal justice, fundamental rights,the EU's institutions, agencies and other bodies, EU citizenship, consumer protection, intellectual property and culture policy

: European Council :

European Council - Brexit

: Department for Exiting the EU :

Dept. for Exiting the EU Official website


: Other Links :

Policy Network 29th December - Associate or dissociate: it’s make your mind up time

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