Tuesday 10 October 2017

Brexit - Theresa May's statement to Parliament 9th October

Brexit negotiations are entering the 5th Round and, on 9th October, the Prime Minister made this statement to the House of Commons - see Hansard 9th October.

Mrs May emphasised that the government wishes to secure "a new, deep and special partnership with the European Union which spans both a new economic relationship and a new security relationship" but the UK will not be part of the EU single market or customs union. Also, the idea is rejected of "something based on European Economic Area membership."   Instead, the UK is seeking "a unique and ambitious economic partnership" which will "reflect our unprecedented position of starting with the same rules and regulations."  The UK will maintain its "unequivocal commitment to free trade and high standards."

Mrs May then referred to needing a "framework to manage where we continue to align and where we choose to differ."   It is not particularly clear what type of framework is envisaged and neither is it clear whether the British government is willing to accept the Court of Justice of the EU as part of such a mechanism for, at least, a period of transition.  It is highly unlikely that the EU would agree to excluding the Court's jurisdiction entirely in the event that legal issues arise between the UK and EU.  See The Guardian - MPs angry as Theresa May accepts continuing role of EU court.

The Institute for Government has published its analysis of Dispute Resolution after Brexit (6th October).

Mrs May went on to propose "a bold new strategic agreement that provides a comprehensive framework for future security, law enforcement and criminal justice co-operation: a treaty between the UK and the EU."  Inevitably, any such treaty would require a mechanism to resolve any disputes.

Regarding implementation, Mrs May repeated what she had said at Florence.  There should be a strictly time-limited (probably 2 year) period of implementation during which the UK "will have left the EU and its institutions"  but, during this period, there would be access to one another’s markets" on current terms and Britain  would also continue to take part in existing security measures.  For this period of time, the framework would be "the existing structure of EU rules and regulations."   Again, Mrs May was not specific in her statement about what involvement, if any, the CJEU might have but "existing structure of EU rules and regulations" may well include the court.  

During the debate which followed, this prompted Mr Jacob Rees-Mogg MP to ask - "Will my right hon. Friend confirm unequivocally that after 29 March 2019 the European Court of Justice’s writ will no longer run in any way in this country and that any new laws agreed under the acquis communautaire after that date will not have effect here unless agreed specifically by Parliament?"  Mrs May replied - "As I have just said in answer to a number of questions, we want to have a smooth and orderly process of withdrawal with minimum disruption. That is why we want the implementation period. We will have to negotiate what will operate during the implementation period. Yes, that may mean that we start off with the ECJ still governing the rules we are part of for that period, but we are also clear that we can bring forward discussions and agreements on issues such as a dispute resolution mechanism. If we can bring that forward at an earlier stage, we would wish to do so ...."

During the implementation period, there would be a registration system for those coming to live and work in the UK.  Mrs May said, "On citizens’ rights, as I have said many times this government greatly values the contributions of all EU citizens who have made their lives in our country. We want them to stay.  In Florence, I gave further commitments that the rights of EU citizens in the UK - and UK citizens in the EU - will not diverge over time, committing to incorporate our agreement on citizens’ rights fully into UK law and making sure the UK courts can refer directly to it.  Since Florence there has been more progress including reaching agreement on reciprocal healthcare and pensions, and encouraging further alignment on a range of important social security rights.  So I hope our negotiating teams can now reach full agreement quickly."

On Northern Ireland, drafting is in progress of joint principles for preserving the Common Travel Area and associated rights.  Physical infrastructure at the border is to be avoided.

At the moment, the EU financial demands are a serious sticking point but the UK "would want to make a contribution to cover our fair share of the costs involved."  We know that the UK negotiators presented legal argument to the EU regarding the financial demands but we have not be allowed to see this argument.  This is a pity given the immense expertise available on EU law within the British legal professions and universities.  Exposure of the argument ought to help to improve it.

The EU (Withdrawal) Bill will soon be entering its Committee Stage in the House of Commons.  On Monday 9th October 2017 the amendments tabled extend to 130 pages.

Two White Papers have been published on trade and customs. and HERE.  "These pave the way for legislation to allow the UK to operate as an independent trading nation and to create an innovative customs system that will help us achieve the greatest possible tariff and barrier-free trade as we leave the EU."

As Mrs May's statement concluded she said, "And while I believe it is profoundly in all our interests for the negotiations to succeed, it is also our responsibility as a government to prepare for every eventuality. So that is exactly what we are doing."

This suggests that the government is planning for a "no deal" situation should that arise.  Obviously, to fail to undertake such planning would be a gross dereliction of the duty of government.  No details of those plans were revealed.

The Hansard record (link above) contains a short exchange between Mr Ben Bradshaw (MP for Exeter).

Q:  "Is it the Prime Minister’s understanding that, if necessary, it is possible to halt the article 50 process?"

A:  "The position was made clear in a case that went through the Supreme Court in relation to article 50. The Government have made it clear that we have no intention of revoking that. We will be delivering on the vote of the British people."

This reference by Mrs May to the Miller and Dos Santos litigation is not entirely accurate because there was a position agreed between the parties that the UK could neither revoke an Article 50 notice unilaterally nor could it give a conditional notice to the EU.  Hence, the Supreme Court did not make any decision about whether notice could be revoked.  

As a matter of law, the precise situation regarding unilateral revocability of the Art 50 notice has not been decided and, as it is a question of EU law, only the CJEU could decide it. 

Other MPs - notably Helen Goodman and Tulip Siddiq - obtained from the Prime Minister a recognition of the correct position regarding the Supreme Court's decision but Mrs May made it clear that the Article 50 notice was not going to be revoked.

Earlier post regarding revocability of the Art 50 notice

Rule of Law implications of the Brexit Bill:

The Bingham Centre for the Rule of Law has put together a high-powered group of 26 legal, constitutional and other experts under the chairmanship of former Attorney General Dominic Grieve QC MP to consider the implications of the EU (Withdrawal) Bill for the rule of law.   See details of this HERE

European Union (Approvals) Bill:

Another government Bill proceeding through Parliament is the European Union (Approvals) Bill 2017-19.   This is a Bill - To make provision approving for the purposes of section 8 of the European Union Act 2011 draft decisions under Article 352 of the Treaty on the Functioning of the European Union on the participation of the Republic of Albania and the Republic of Serbia in the work of the European Union Agency for Fundamental Rights and on the signing and conclusion of an agreement between the European Union and Canada regarding the application of their competition laws.

Here is an example of "business as usual" continuing during the process of Brexit negotiations.

The government has published this summary of the Bill.

Matrix Chambers - Brexit Hub - the latest news, articles and commentary from Matrix members concerning the legal implications of the UK’s vote to leave the European Union

Monckton Chambers - Brexit blog- Brexit is an unprecedented political, economic and legal phenomenon. The Monckton Brexit Blog gives you expert legal insight and analysis from barristers at Monckton Chambers.

EU Law analysis  - Expert insight into EU law developments

Professor Steve Peers - Bridge over troubled water? Legal issues of the Brexit transition period. 24th September.

Public Law for Everyone

Brexit Time  - a running commentary with interesting contributions

EU Commission - Brexi negotiations

UK Constitutional Law Group blog - Can Brexit be stopped under EU law?

The EU Collection - Links to all previous Brexit-related posts on this blog

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