Wednesday, 4 April 2018

Brexit Update - Committee for Exiting the EU

The House of Commons Select Committee for Exiting the EU has published The Future UK-EU relationship.  The Committee's analysis has indicated that there are a number of key tests by which any deal agreed by October can be judged. The Prime Minister has set out her red lines for the negotiations. However, the success of the future relationship will be judged on the ground by the members of the public, businesses and agencies that travel to and from, trade with and will continue to work closely with the EU and EU Member States.  At paragraph 32 the Committee's criteria are set out:

  • The border between the Republic of Ireland and Northern Ireland must remain open, with no physical infrastructure or any related checks and controls, as agreed in the Phase 1 Withdrawal Agreement;
  • In the fight against crime and terrorism, arrangements must replicate what currently exists in operational and practical cross-border co-operation. In particular, the UK must retain involvement with Europol and the European Arrest Warrant and continue to participate in the EU’s information-sharing systems including SIS II;
  • Institutional and decision-making frameworks must be identified to ensure that the UK is able fully to participate in foreign and security co-operation with the EU, to meet the challenges it shares with its neighbours in the EU-27;
  • In respect of trade in goods, there must be no tariffs on trade between the UK and the EU 27;
  • Trade in goods must continue to be conducted with no additional border or rules of origin checks that would delay the delivery of perishable or time-sensitive deliveries or impede the operation of cross-border supply chains;
  • There must be no additional costs to businesses that trade in goods or services;
  • UK providers of financial and broadcasting services must be able to continue to sell their products into EU markets as at present;
  • UK providers of financial and other services should be able to retain automatically, or with minimal additional administration, their rights of establishment in the EU, and vice versa, where possible on the basis of mutual recognition of regulatory standards;
  • There must be no impediments to the free flow of data between the UK and the EU;
  • Any new immigration arrangements set up between the UK and the EU must not act as an impediment to the movement of workers providing services across borders or to the recognition of their qualifications and their right to practise;
  • The UK must seek to maintain convergence with EU regulations in all relevant areas in order to maximise access to European markets;
  • The UK must continue to participate in the European Medicines Agency, the European Aviation Safety Agency, the European Chemicals Agency and in other agencies where there is a benefit to continuing co-operation;
  • The UK must continue to participate in the Horizon 2020 programme, the Erasmus+ scheme, the Galileo project and in other space and research programmes in order to support the work of our world-class academic institutions and the importance of cultural and educational exchange between the UK and the EU 27;
  • The UK must continue to participate in all relevant air safety agreements and the Open Skies Agreement to ensure no disruption to the existing level of direct flights.
  • The UK Government must ensure maximum access to European markets while agreeing reciprocal access to waters and a fairer allocation of fishing opportunities for the UK fishing industry. 
It is still possible - (but not likely unless there is a major change in UK political thinking) - that the UK could seek to revoke its notification of leaving the EU.  For a little more on this see below. 
European Union (Withdrawal) Bill:

This Bill is with the House of Lords and the current situation may be seen HERE.

See also House of Lords EU Committee
Can Brexit be stopped / deferred:

The criteria will be of value in assessing the eventual deal BUT Brexit will occur on 29th March 2019 because that is the inevitable effect of the notice served under Article 50 of the Treaty on European Union.

Is there anything that could stop this?  As far as I can see there are only three things:

1.  The Article 50 notification is revoked either by agreement with the EU or unilaterally by the UK.

2.  The 2 year period referred to in Article 50 is extended.

3.  The Withdrawal Agreement specifies a different date.

2 and 3 are deferments of the Brexit date and do not prevent Brexit.

Whether, as a matter of law, unilateral revocation is permissible remains unclear.  Litigation in Scotland's Court of Session seeks to have this point decided.  The UK Parliament could - as the UK's sovereign body - require that the government seek to revoke the Article 50 notification.

Article 50.3 permits the European Council to extend the 2 year period BUT it must do so unanimously.

Litigation:

Litigation based on a view that Parliament never made a "decision" to leave the EU is also on-going.  The prospect of this being successful seems doubtul.  Parliament enacted the European Union (Notification of Withdrawal) Act 2017 permitting the Prime Minister to give notice of withdrawal and that meets the UK's constitutional requirements.

Brexit-related litigation

Spending limits:

Alleged breaches of spending rules during the referendum has also been raised - see The Guardian - Cambridge Analytica Files.  The European Union (Referendum) Act 2015 imposed controls on expenditure - see section 3 and Schedule 1.   Breaches of those rules does not appear likely to lead to negation of the referendum but could result in fines being imposed on any guilty parties.  The 2015 Act Schedule 3 paragraph 19 placed the following restriction on challenge to the referendum result:


"No court may entertain any proceedings for questioning the number of ballot papers counted or votes cast in the referendum as certified by the Chief Counting Officer or a Regional Counting Officer or counting officer unless -

(a) the proceedings are brought by a claim for judicial review, and

(b) the claim form is filed before the end of the permitted period.

The permitted period has long since expired.



 

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