In between the celebrations for 60th Anniversary of the Treaty of Rome and April Fool’s day, Day 1 of Britain’s exit from the EU began. On March 29th Sir Tim Barrow was despatched with a 6-page letter from Downing Street , which was ceremoniously handed over in front of the worlds cameras as he shook hands with European Council President Donald Tusk. The picture inevitably made front page news but in contrast to the media, markets failed to react either positively or negatively making Day 1 strangely anti-climactic – in effect more of a whimper rather than a bang. Nonetheless, the countdown has begun.
Day 2 brought a swift EU response in the form of Brexit Negotiating Guidelines. Despite expressing the deep regret that Brexit will now happen by March 29th 2019, the EU repeated its resolve to act as one. It set out core principles which also made clear that Britain’s desire for a UK-EU relationship of bits and pieces was delusional. Two phases for negotiation are set out: Phase 1 will focus on ‘disentanglement’, including consideration of the so-called ‘Divorce Bill’; Phase 2 will only begin when according to the European Council ‘sufficient progress’ has been made on Phase 1. Phase 2 of negotiations will include discussions only on the ‘overall understanding on the framework’ for the future relationship. In another blow to Government plans, the Guidelines state that agreement on a future relationship can only be concluded when the UK becomes a ‘third country’ – work towards a free trade agreement can only begin once the UK is no longer a Member State of the EU. An LSE-Briefing Paper by Damian Chalmers gives a clear overview of the challenges facing the Government negotiators.
Transitional arrangements can be considered, but it is unclear in which phase. What is clear is that during any transitional phase prolonging the EU acquis all Union regulatory, budgetary, supervisory and enforcement instruments and structures will continue to apply. However, transitional arrangements cannot provide a shelter for trade talks – as explained above, if this means that the UK remains a Member State, movement towards a free trade agreement with EU will be stalled. A transition period may therefore prove a hurdle to the conclusion of a free trade agreement or any future partnership in areas such as security and defence, terrorism, international crime. Transition is not the only hurdle – the EU has linked the application of any agreement between the UK and the EU in Gibraltar to a prior agreement between the UK and Spain. It is clear what lies behind this: 96% of residents on the Rock voted to remain in the EU. Nicola Sturgeon must be green with envy – the SNP would no doubt also welcome such protection.
The EU is also clear that the future partnership must include enforcement and dispute settlement mechanisms that do not affect the Unions autonomy – there can be no doubt since Opinion 2/13 on EU accession to the ECHR how jealously the CJEU will also guard its own powers. Thus it is hard to see how the UK can square this with its statement in the White Paper, published on Day 3, that the jurisdiction of the CJEU in the UK will end when we leave the EU. Unless, of course, it plans to leave the EU without any agreement.
Day 3 saw the publication a White Paper on Legislating for the UK’s Withdrawal from the EU. The centrepiece of this is a ‘Great Repeal Bill’, setting out the government’s vision of legislating for withdrawal from the EU. The plan for the Great Repeal Bill is to provide for ‘minor changes’ – it will repeal the ECA 1972 and incorporate wholesale the EU acquis communitaire (the Treaties but not the Charter, EU Regulations and Directives including implementing and delegated Regulations and Directives, and all CJEU case law) into UK law, convert EU Regulations into domestic law (these will be known as EU-derived law) and finally create limited discretionary powers for creation of secondary legislation. This secondary legislation will enable necessary ‘corrections’ to laws that would not function properly outside of the EU. In order to have the power to make these corrections, the Bill proposes the introduction of a so-called ‘Henry VIII clause,’ although this may cause significant problems according to Lord Neuberger.
It is questionable whether all this amounts to a ‘minor change’. It seems that the ‘Great Repeal Bill’ will create more in UK law than it repeals. By March 2019, and for an undefined period of time there will be two sets of laws: UK law and ‘EU-derived law’ both of which will remain relevant until repealed. Repeal, conversion, and correction to fill gaps in EU derived laws will be an ongoing process. While the use of Henry VIII powers is defended as necessary to provide legal certainty, the Bill envisages that there will be flux and constant change. Thus the law may change more than once during the process as negotiations continue.
The CJEU is specifically mentioned: while according to the Bill the jurisdiction of the CJEU in the UK will end, its case law will live on in EU-derived law: the White paper states that
‘as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means…To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts be reference to the CJEU’s case law as it exists on the day we leave the EU…the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decision of our own Supreme Court’ (Paras 2.14 & 2.16)
EU law decided until March 29 2019 will therefore continue to influence law in the UK.
Confusingly, this ‘historic’ case law will not ‘fossilise’ CJEU decisions but the Supreme Court is expected to take a ‘sparing’ approach to departing from CJEU case law. This will perhaps provide some comfort for EU citizens and workers settled in the UK, as well as Zambrano carers whose right to remain in the UK to care for their EU citizen babies arises under EU law. However, this comfort will be only temporary as alongside repeal, conversion and correction further bills will be introduced to make ‘major’ policy changes. The White Paper specifically mentions a customs bill and an immigration bill. It is likely that some EU laws will eventually also be repealed and rights lost, such as the right to be forgotten.
Only brief mention is made of plans for repatriation of powers to devolved administrations in Northern Ireland, Scotland and Wales, as well as the position of the Crown Dependencies (Jersey, Guernsey and the Isle of Man and the Overseas Territories, especially Gibraltar and the Sovereign Base Area in Cyprus.
Interestingly, the White Paper makes no mention of Miller in the brief history of its own evolution. Also, it is worrying and confusing that there are no plans to ‘carry across’ the EU Charter – it is unclear how this will be consistent as since 2009 this specific and expansive catalogue of fundamental rights in the EU has been integral to the acquis communitaire and the case law of the CJEU.
By March 29 2019, the government therefore plans to 1. Repeal the ECA; 2. Correct ‘EU derived law’ using secondary legislation; 3. Introduce new laws; 4. Negotiate a Withdrawal Agreement with the EU; 5. Negotiate a framework for future relations with the EU; 6. Prepare for trade relations with the EU under WTO rules in the case of no Withdrawal Agreement; 7. Develop bilateral trade agreements with countries in other parts of the world; and even, according to former Conservative Minister Michael Howard, 8. prepare for war with Gibraltar
The Government welcomes feedback on the White Paper but the document gives no date by which these should be received – a sign of desperation or the sloppy drafting that is to come? Even the Ukippers are unhappy. Negotiations continue under the shadow of one Rock, and we are increasingly in the hands of the other.