Tuesday, 12 February 2019

Brexit Library ~ Key materials


Links to Key Brexit materials are set out in this post.  First, some of the background ...

*** Background ***

The United Kingdom joined the European Communities on 1 January 1973.  42 years later, the Conservative Party manifesto of 2015 declared - "For too long, your voice has been ignored on Europe. We will: give you a say over whether we should stay in or leave the EU, with an in-out referendum by the end of 2017."   

It was patently obvious that, after 42 years of integration, the process of leaving the EU was going to be politically controversial with the potential to wreak immense economic damage.  It was also going to be difficult legally.  Any vote to leave was bound to be followed by tense and problematic negotiations with the EU which would seek to protect its own interests and those of its member States.  Furthermore, leaving the EU would convert the border between the Irish Republic and Northern Ireland into a border between a member state (Ireland) and a third country (the UK).

2015:

The Conservative Party won the general election of 2015 with a majority of 12 seats and by the end of 2015 had legislated to hold a referendum on EU membership.   

The Labour Party's 2015 manifesto stated that Labour believed that EU membership was "central to our prosperity and security."  The Party promised to work to reform the EU and would retain membership of it but went on to say that it would legislate for a lock to guarantee that there can be no transfer of powers from Britain to the EU without the consent of the British public "through an in/out referendum."

2016:


Prior to the referendum, the Prime Minister (David Cameron) negotiated a "New Settlement for the UK within the EU."  Clearly he hoped that this would persuade people to vote to Remain in the EU.  In the event, the package proved to be insufficient.  Also, during the referendum campaign, the Remainers failed to gain enough traction with voters.

The referendum was held on 23 June 2016 with an overall UK-wide result in favour of leaving the EU - 51.9% leave to 48.1% remain on a turnout of 72.2%.  Significantly, Scotland and Northern Ireland voted to remain in the EU.   As a matter of law, the referendum was not binding on the government.  Politically, the Conservative Party was committed to implementing the result.

The government had published quite detailed material setting out possible alternatives to EU membership - (HERE) - but this was barely referred to in the referendum campaign.  The Alternatives document concluded by stating - "It is the assessment of the UK Government that no existing model outside the EU comes close to providing the same balance of advantages and influence that we get from the UK’s current special status inside the EU."   The result was that there was little or no consideration during the campaign of the form that Brexit might take.  It cannot sensibly be claimed that either a clear plan for leaving was put to the electorate or that the referendum gave politicians any clear guidance as to the form that Brexit ought to take.

Even after the referendum, time could have been profitably used by government, with Parliamentary involvement, to consider very carefully the ramifications of the referendum result.  In play were matters such as the possible future relationship with the EU, the implications for the UK of the fact that Scotland and Northern Ireland had voted to remain, and the possible consequences of the border between Ireland and Northern Ireland.  It is not hindsight to say this since the need for a well-considered plan was the subject of many articles by notable commentators. 

2017:

2017 saw judgment by the Supreme Court of the UK in R (Miller and another) v Secretary of State for Exiting the EU [2017] UKSC 5 where an 8 to 3 majority held that an Act of Parliament was required to authorise government ministers to give notice under Article 50 of the Treaty on European Union.  The Act duly came - the brief European Union (Notification of Withdrawal) Act 2017 - 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.

The Prime Minister, clearly hoping for a larger majority in the Commons, secured an election in 2017.  The Conservative Party manifesto 2017 promised - "The best possible deal for Britain as we leave the European Union delivered by a smooth, orderly Brexit."  In 2017, the Labour Party manifesto declared - "Labour accepts the referendum result and a Labour government will put the national interest first.  We will prioritise jobs and living standards, build a close new relationship with the EU, protect workers’ rights and environmental standards, provide certainty to EU nationals and give a meaningful role to Parliament throughout negotiations."

The 2017 election resulted in the Conservative Party having 318 seats to Labour's 262 and other parties holding 70 seats.  A minority Conservative government therefore had the task of handling Brexit but, given that Labour accepted the referendum result, the House of Commons was overall pro-Brexit.  Argument would then focus on the form that Brexit would take.

2018:

In July 2018 the Electoral Commission published its investigation report on VoteLeave Ltd, Darren Grimes, BeLeave, and Veterans for Britain.  The report concluded that a number of expenditure offences had been committed during the referendum campaign.  Fines were imposed - £61,000 for Vote Leave, £20,000 for Mr Grimes and £250 for Veterans for Britain.  The relevant legislation is the Political Parties, Elections and Referendums Act 2000.  The Commission's findings did not alter the government's determination to implement the 2016 referendum outcome.  See also Brexitshambles.com - The Brexit Files Part II.  Is Wilson v The Prime Minister the silver bullet that will kill Brexit?

Parliament enacted the European Union (Withdrawal) Act 2018 - An Act to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.  This Act aims to ensure legal continuity at the time the UK leaves the EU.

A DRAFT withdrawal agreement was reached by the end of February 2018.  Following the government meeting at Chequers on 6 July 2018 a White Paper was published - The future relationship between the UK and the EU.  By 25 November 2018 a Withdrawal Agreement and Political Declaration has been reached but, as required by the 2018 Withdrawal Act, both documents had to be approved by the House of Commons.

Withdrawal Agreement 25 November 2018 - Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

Political Declaration 25 November 2018 - Draft Political Declaration

2019:

On 15 January 2019, the House of Commons voted against approving the Withdrawal Agreement and Political Declaration.

Article 50:

At the very heart of Brexit lies Article 50 of the Treaty on European Union: the mechanism by which a member leaves the EU.  Once the article is triggered it leads to a 2 year period which can be extended by agreement.  At the end of the 2 year period the State leaves the EU either with a Withdrawal Agreement or without any agreement.  Thus "no deal" is the situation unless agreement is reached.  It has been decided by the Court of Justice of the EU that the State may unilaterally revoke its notification under Article 50 and, if the notification is revoked, the State continues with membership on the same terms it already holds.  It is beyond doubt that the UK has particularly good membership terms given its non-participation in the Eurozone etc.

Brexit has resulted in the publication of millions of words in countless official documents as well as articles and blogposts.  Running through this mesmerising array of documentation is a central core of material.   Enough then of the background.  The following is what I see as the central core of material.

*** The Key Material ***

The 1972 Act and the Treaties:

European Communities Act 1972

Treaty on European Union (TEU) and Treaty on the Functioning of the EU (TFEU)

Referendum:

European Union (Referendum) Act 2015

UK government - material published under section 7 of the Referendum Act -(a) Alternatives to membership: possible models for the UK outside the EU; (b) Rights and Obligations of EU membership.

BBC - Referendum result 23 June 2016

Supreme Court - Miller case:

Supreme Court judgments in R (Miller and another) v Secretary of State for Exiting the EU [2017] UKSC 5 - majority 8 to 3 -majority judgment and 3 dissenting judgments.  The majority held that an Act of Parliament was required to authorise government ministers to give notice under Article 50 of the Treaty on European Union.

European Union (Notification of Withdrawal) Act 2017 - 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.

The Article 50 Notification was handed to the President of the EU Council on 29 March 2017 thereby commencing the 2 year Article 50 period.  In Wightman and others v Secretary of State for Exiting the EU, the Court of Justice of the EU (CJEU) has held that notification under Article 50 of the Treaty on European Union is unilaterally revocable.  Read the Court's Press release 10 December 2018 and the Court's Judgment

Government policy:

Prime Minister's Lancaster House Speech - January 2017 - set out the Plan for Britain, including the 12 priorities that the UK government would use to negotiate Brexit.

The 2018 Withdrawal Act:

European Union (Withdrawal) Act 2018 - An Act to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.

Withdrawal Agreement negotiated:

A DRAFT withdrawal agreement was reached by the end of February 2018.

Following the government meeting at Chequers on 6 July 2018 a White Paper was published - The future relationship between the UK and the EU.

Withdrawal Agreement 25 November 2018 - Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

Political Declaration 25 November 2018 - Draft Political Declaration

The Withdrawal Agreement Explained - published by the EU on 8 February 2019


: Posts since 1st January 2019 - (latest first) :

12 February - Brexit Library ~ Key materials

28/29 January - House of Commons - Brexit debate - updated post







10 January - Shenanigans in the Commons as the 'meaningful vote' comes closer

9 January - Brexit - Government loses vote on Finance (No.3) Bill


: Pre-2019 posts and materials :

Latest first ....


2018






















Brexit-related litigation - 28th March- (this post replaced by post of 4 October 2018)

4 Posts on the Constitution Committee Report (published 29th January 2018) -



Legal status of retained EU law - (30th January 2018)





What is “no deal” Brexit? Getting hold of fog - 12th January 2018.

The House of Lords and the EU Withdrawal Bill - 3rd January 2018

A short round up - includes some Brexit items - 18th January 2018

2017:

Brexit - end of year view (29th December)

Joint EK EU Report (4) - Euratom and other points (10th December)

Joint UK EU Report (3) - Money (10th December)

Joint UK EU Report (2) - Ireland and Northern Ireland (9th December)

Joint UK EU Report (1) - Citizens' rights (9th December)

Brexit shambles develops (7th December)



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

Brexit Notes - Round 5 and other items (12th October 2017)


Brexit Negotiations Round 4 (29th September)





Brexit - Government Papers - (18th August 2017)-  Papers regarding (a) Customs and (b) Ireland
2016:
19 December 2016 - Brexit in the High Court (2)

What did Parliament mean? 12/12/16

High Court of Northern Ireland ~ very brief note on the Brexit case - 28/10/16

The Art 50 case - some thoughts (27/10/16)

Brexit should be scrutinised as it happens - House of Lords report (20/10/16)
25/6/16 - It is Brexit (2) - A short note on developments since Thursday 23rd June
24/6/16 - It is Brexit (1) - The overall vote was to leave the EU
 
: Pre Referendum (23rd June 2016) :
20th February 2016 - Brexit ~ referendum ~ a few points - including link to the deal secured by the Prime Minister

UK and the EU (1) - History and Background

UK and the EU (2) - The EU Treaties - key points

UK and the EU (3) - The Parliament, the Commission and the Court

UK and the EU (4) - Freedom of movement of persons

UK and the EU (5) - Referendum - People need facts not slogans (Lord King)

UK and the EU (6) -Will Brexit be a simple process?

UK and the EU (7) -Your Rights

UK and the EU (8) - Trading bloc or emergent State

UK and the EU (9) - A monumental referendum - information to assist

UK and the EU (10) - What if it is Brexit 

UK and the EU (11) - The event horizon approaches - What if it is Brexit

UK and the EU (12) - Final post of this series



Political Speeches

Prime Minister's speeches -

Lancaster House (January 2017),   
Florence (September 2017),   

Munich Security Conference (February 2018) 



Theresa May - Belfast 20 July 2018

Theresa May - Belfast 5 February 2019
EU council


EU Commission

European Parliament
Motion prepared by the European Parliament’s Brexit Steering Group raising  possibility of an ASSOCIATION AGREEMENT founded on Article 8 TEU and Article 217 TFEU - The motion is available HERE. 

European Parliament Resolution 14 March 2018

Europa - the EU website





UK Parliament and Courts






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