Brexit – a legal quagmire?

4 December 2018

Brexit is, of course, primarily a political process. But that process takes place within a legal framework and, in that particular arena, it must be said that the Government’s record has been less than impressive.

First of all, in the Miller case heard at the end of December 2016, the Supreme Court decided that an Act of Parliament was required in order to sanction the delivery of the UK’s withdrawal notice under Article 50 of the Treaty on European Union. The Government argued that it had a discretion to deliver the notice on its own initiative, but that position was rejected.

Secondly, the Government has sought to prevent any court from deciding whether the Article 50 notice is itself capable of revocation or withdrawal. It may be that the Government fears that the exercise of a unilateral right of withdrawal might add impetus to calls for a second referendum on the Brexit deal. On the basis of an assurance that it would never withdraw the Article 50 notice, the Government therefore sought to persuade both the Court of Session in Scotland and the European Court of Justice that a decision on the issue would be “premature” or “academic”. In this respect, its efforts have also failed – thus far. The Advocate General to the European Court of Justice has said that a ruling on the Article 50 issue would be meaningful because Members of Parliament should understand the range of options available to the United Kingdom. Moreover, he has stated that the UK could withdraw its notice immediately and without the consent of other Member States – the very position that the Government has apparently sought to avoid. This view will no doubt be highly influential when the European Court of Justice prepares its forthcoming judgement on this subject.

Finally, Government ministers have been subjected to a “contempt of Parliament” charge, on the grounds that they had published only a summary of the Attorney General’s legal advice on the draft Withdrawal Agreement, as opposed to his full advice. It must be said that the 43 page summary – titled “EU Exit: Legal Position on the Withdrawal Agreement” – contains very little in the way of advice or assessment. In many respects, it is merely a descriptive document, providing a precis of the draft Withdrawal Agreement itself. The description of the First Protocol – dealing with Ireland/Northern Ireland – only serves to highlight the difficulties over the so-called “backstop” issue. The Protocol and its Annexes run to some 170 pages, yet they are intended to be replaced by a new agreement that avoids a hard border between Ireland and Northern Ireland. The Protocol is therefore “… intended to apply only temporarily … until superseded … by a subsequent agreement…”. In other words, the temporary agreement is permanent until all parties agreed otherwise. Crucially, the UK has no unilateral right of exit from the customs area backstop. We are apparently to learn more—the Government, having lost the “contempt” vote, is to publish the full legal advice on 5 December.

So the Brexit process is currently stuck in something of a legal quagmire.

We will follow up with discussion of Brexit-related issues of particular interest to businesses and individuals.

Charles Proctor Author
Charles Proctor
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