Friday, 3 March 2017

More on the Brexit Notification Bill

The House of Lords has amended the European Union (Notification of Withdrawal) Bill.   The amendment has become Clause 1(2) and is aimed at requiring Ministers to bring forward proposals to ensure that the "EU derived-rights" of European Union (or European Economic Area)  citizens in the UK are protected - see the Bill as amended.   Clause 1(2) reads:

"Within three months of exercising the power under subsection (1), Ministers of the Crown must bring forward proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated in the same way with regards to their EU derived-rights and, in the case of residency, their potential to acquire such rights in the future."

The Report Stage of the Bill is scheduled to take place in the House of Lords on 7th March.  Whether the amendment to the Bill survives remains to be seen.  It appears that Ministers will seek to have it reversed as part of the "ping pong process" when the Bill returns to the House of Commons.  Further amendments to the Bill are possible at Report Stage.

A few observations about the amendment:

1.  The only legal obligation on the government would be to bring forward proposals within 3 months of the Prime Minister triggering Article 50.  What would happen following the bringing forward of proposals is not stated and is unclear.

2.   The amendment does not protect EU derived rights of citizens in the UK who are NOT citizens of another EU or EEA country.  The rights of such individuals will be at the mercy of whatever the proposed "Great Repeal Bill" contains - post of 5th October 2016.

3.   The amendment is not concerned with the rights of British citizens who live / work in other EU countries.  Many such citizens were not permitted to vote in the 23rd June 2016 referendum and that point was unsuccessfully challenged before the courts - Shindler v Chancellor of the Duchy of Lancaster.    In the Brexit litigation before the High Court and the Supreme Court, representations were made on behalf of "ex pat" citizens - post of 24th January 2017.

4.   The EU position regarding the rights of British citizens living / working in EU member States is not clear at the moment.  It may be that this matter will received some priority when negotiations with the EU begin but this remains to be seen.   The government considers it unwise to guarantee the rights of the three million or so EU citizens in this country, before other EU countries are ready to do the same for British citizens abroad. Opponents of the government consider this to be distasteful, immoral even, because many people who have made their lives in the UK could be used, so the phrase goes, as "bargaining chips" in a negotiation - BBC News 1st March 2017

Is the Bill sufficient?

Does the Bill go far enough?  For my part I do not think so.  As I argued previously, Article 50 requires a decision to be made in accordance with constitutional requirements and, following that, notification of the decision.  This sequence is clear enough in the wording of the Article but it also seems that it is being largely ignored within the UK where the focus has been on the authority to give the notice.  The actual decision to leave the EU should be made by Parliament and that requires legislation.  The present Bill could have dealt with this matter but it concentrates only on notification.

It may be possible to argue that the decision is implied by the Bill.  On this see the discussion in this 26th January post.

The question of whether the UK could unilaterally withdraw notice has not been answered.  There is a possibility that the 2 year negotiating period ends without a satisfactory agreement but the UK is bound by its notification.    Whilst there is eminent opinion against this view (Three Knights Opinion) the risk remains.

A cautionary note from Lord Hope:

Lord Hope of Craighead - (former Deputy President of the Supreme Court) - was one of almost 200 speakers during the House of Lords Second Reading of the Bill.   He cautioned against the Government thinking that by introducing this legislation they have done all that the Supreme Court’s decision in Miller requires.  Article 50 makes it clear that the process involves two more stages, both mentioned in the article: negotiation, and the concluding of an agreement between the Union and the state in question. The Bill says nothing about these two further stages.  The White Paper - written after the Bill was published - states that the Government will put the final deal agreed between the UK and the EU to a vote in both Houses of Parliament.  That was confirmed by the Secretary of State in the House of Commons on 7th February.  However,  a resolution in Parliament is not the same thing as being given statutory authority to enter into that agreement—or, indeed, to withdraw from the EU if there is no agreement.

Lord Hope went on to say that there is a respectable argument that only Parliament has the constitutional authority to authorise, by legislation, the concluding of an agreement with the EU or the act of withdrawal if that is what the Government decide that they have to do.   As the Supreme Court said in Miller, at paragraph 123, a resolution of Parliament is an important political act, but it is not legislation and, “only legislation which is embodied in a statute will do”. That was why the Court held that the change in the law that would result from commencing the Article 50 process must be made in the only way that our constitutional law permits: namely, through parliamentary legislation.   The argument that the Government may face is that the same reasoning must be applied to the final stage in the process, too. Even if there is some doubt about this, legislation would provide legal certainty. It would minimise the risk of further legal challenges.

Lord Hope's point was that the government cannot escape from the effect of the Miller decision when the end of the negotiation arrives   He hoped that the Government would be sensible about this, and that further recourse to the courts would not be necessary.

The government would certainly do well to avoid further litigation over this matter - The Independent 1st March.

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