Scotching Brexit? Background to the Wightman case about reversing the Article 50 notification unilaterally

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk

As the Brexit clock ticks down, and the diametrically opposed objectives of Theresa May's negotiating imperatives become ever more exposed, the clamour to clarify the processes and procedures surrounding Brexit intensifies.

At the tail end of 2017, a group of seven Scottish politicians, from across the political spectrum and from all three legislatures for Scotland (the Scottish Parliament, the UK Parliament and the European Parliament) commenced an action in the Scottish Court of Session, essentially seeking an answer to the simple question 'Can a member State of the European Union unilaterally revoke their Article 50 TEU notification to leave the EU?' The group is headed by Andy Wightman MSP, and the other pursuers are Ross Greer MSP, Alyn Smith MEP, David Martin MEP, Catherine Stihler MEP and Joanna Cherry QC MP. English MPs Tom Brake and Chris Leslie were joined in the case in May 2018.  The case was crowdfunded through the Good Law Project, headed by Jolyon Maugham, who is also a petitioner.

The pursuers are keen to know the answer to this question since they believe that the route to Brexit is not unidirectional and binary. For the pursuers, representing constituents in a nation of the United Kingdom which voted overwhelmingly to remain in the EU referendum, Brexit does not have to result in 'Deal or No Deal'. Rather, there may be a third way: A People's Vote that includes the option to Remain in the European Union.

In order for a Scottish court to make any pronouncement on this legal question, the court would have to send a preliminary reference request to the European Court of Justice under Article 267 of the Treaty on the Functioning of the European Union since Article 50 TEU is a provision of EU law and by definition, only the CJEU can offer a binding interpretation of EU law for the entire EU.

In February 2018, the pursuer's application for judicial review (subject, in Scotland, to the Court of Session Act 1988, s. 27B) was refused by Lord Doherty in the Outer House of the Court of Session, on the basis that the question of the revocability or otherwise of an Article 50 TEU notification was a purely hypothetical and academic one, since both the UK Parliament and Her Majesty's Government had no yearning to resile from the path to Brexit (paras 10-14 of the judgment).  In particular, Lord Doherty opined that the pursuer's action had no reasonable prospect of success (para 8; see s 27B(2)(b) of the Act) since the matter was not a justiciable matter suitable for judicial determination.

The pursuers appealed the decision to refuse the judicial review and accompanying CJEU reference to a bench of three Scottish judges in the Inner House of the Court of Session by way of a reclaiming motion (which is the process whereby a decision of the Outer House of the Court of Session can be appealed). In their judgment, the panel of three judges heavily criticised the terms of the original judicial review pleadings as being overly complicated, unclear and potentially confusing and fell way below the standards expected for a judicial review application. (The clarity and structure expected in a judicial review claim were set out by Lord Hope in Somerville v The Scottish Ministers [2007] UKHL 44, at paras. 39, 46, 52 and 65. See also Lord Rodger's dicta at para. 88) Nevertheless, given the constitutional importance of the question raised, their lordships were minded to forgive such careless drafting and allow the appeal and remit the case to the Outer House for judgment (para 12). In the opinion of their lordships, the case was neither academic nor hypothetical given that the UK Government could be asked to revoke the Article 50 TEU notification at the request of the UK Parliament (para 30). But, even where the case were to proceed, the pursuers would need time to revisit and rephrase their averments (para 34).

Following a much amended set of pleadings, Lord Boyd of Duncansby heard the application for judicial review in June 2018. Lord Boyd refused the application and thus with it any chance of a preliminary reference request being submitted to the European Court of Justice (para 75). His Lordship's opinion hinged on the hypothetical and speculative nature of the claim. At the time of the judgment, the EU (Withdrawal) Act 2018 was still a bill progressing through Parliament and thus a definitive date for UK withdrawal from the European Union had not yet been set out as a matter of UK law. Rather, the date of exit of the UK was only set out as a matter of EU law as per the terms of Article 50(3) TEU, that is the date of entry into force of the withdrawal agreement or two years from the date of Article 50 notification itself.

As is well known, the European Court of Justice does not entertain national courts submitting hypothetical questions concerning EU law (see, for instance, Foglia v Novello). The preliminary ruling procedure is a practical cooperative link (for example, Case C‑470/12 Pohotovost) between the national courts of the member States and the Court of Justice of the EU, designed to help the national courts decide cases in which the interpretation of EU law is integral to the resolution of the dispute before the national court. (In the Scottish context, see the case of Scotch Whisky Association v Lord Advocate, discussed here) Having reviewed the authorities in this matter, Lord Boyd declared that the case was a hypothetical one which did not need to be answered in order for him to give judgment. He also stated that this position was synonymous with the position adopted by the Scottish courts as to hypothetical cases before them (for example, see Macnaughton v Macnaughton Trustees 1954 S.C. 312 as discussed by Lord Boyd at para. 48).

The petitioners, in their case, also objected to the stated position of UK Ministers that outlines that Article 50 TEU is not unilaterally revocable. Indeed, in the earlier seminal constitutional case of Miller,  the question of unilateral revocability of Article 50 TEU was assumed by both parties to be answered in the negative (para 10 of that judgment). Lord Boyd refused to entertain an in-depth discussion as to the legal appropriateness of the stated position of UK Ministers on the revocability of Article 50 TEU on the basis that were he to do so, this would be a usurpation of Parliamentary privilege and contrary to Article 9 of the Bill of Rights 1689 (paras 54-58 of his judgment). 

The pursuers then immediately appealed to the Inner House of the Court of Session, where their reclaiming motion was successful. The judgment of the Inner House was delivered on the 21st of September 2018. The Inner House found for the Reclaimers on a number of grounds. Lord Carloway, the Lord President, dismissed the UK Government's claim that the judicial review action was not competent because the order sought was not practical. On the contrary, Lord Carloway considered that the issue was justiciable precisely because there was such controversy as to the appropriate way forward within the parliamentary process (paras 22-23 of the judgment). More significantly, the court also found that the case was no longer hypothetical since in between the date of the judgment by Lord Boyd and the present case, the EU (Withdrawal) Act 2018 had now passed onto the statute books and certain provisions of that Act had come into force.

In particular, section 13 of the Act – the “meaningful vote” section – provides that the UK Parliament will be faced with a binary choice after a withdrawal agreement has been provisionally agreed between Her Majesty's Government and the European Union: Parliament must either approve the terms of the withdrawal agreement and accompanying text on the future framework for UK-EU relations or not approve. In the event that approval has not been forthcoming, the Government must inform the Parliament of how it intends to proceed within 21 days of the decision not to approve. Further, in the period up to the 21st of January 2019, if the Government again considers that no deal can be agreed then Parliament must be told of how the Government intends to proceed and again after the 21st of January 2019, the Government must inform Parliament of how it intends to proceed.

In all of these scenarios, there is a presupposition that both the Brexit clock inexorably continues to countdown to the 29th of March 2019 and that the choice for the UK Parliament is stark: Deal or No Deal. The Scottish politicians at the heart of this case contended that there is an alternative to this dystopian vision: The UK population can be given a People's Vote on the terms of the deal, including an option to Remain in the EU. However, this option will only be realisable if the UK's automatic exit from the EU on the 29th of March 2019 can be postponed and the only ways to disapply the automatic departure of the UK is by the UK either securing the agreement of the 27 other Member States to extend the Article 50 TEU time period or by unilateral rescission of the Article 50 TEU notification.  If neither of these options can be secured, then clearly, given that it is November 2018, there will be insufficient time to organise the necessary preparations for what would be in effect a second referendum on UK membership of the EU.

In the reclaiming motion, the Scottish judges approved the text of the question that they wished to send to the CJEU (see the Appendix to the judgment). The question is thus:

“Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU.”

Given that time is of the utmost essence in this case, the Scottish court expressly requested use of the expedited procedure (see Article 105 of the Rules of Procedure of the CJEU) before the Luxembourg court. At present, the average time taken for the CJEU to deliver a ruling under the Article 267 TFEU procedure is 15.7 months (page 114 of the 2017 Annual Report of the CJEU) . Such a timeframe would, ironically, render the judgment academic since the UK is heading towards Brexit in just over four months.  However, even with the expedited procedure, the Court will in all likelihood take between 3 and 5 months to render a judgment. Even this timeframe is problematic given that, at the time of writing, the UK and the EU have agreed a provisional withdrawal agreement on the 13th of November 2018.

In order for the issue of the revocability of Article 50 TEU to have practical import, UK politicians would need to know the answer to this question before they are asked to perform their constitutional task of participating in a meaningful vote on the terms of the withdrawal agreement. Given that there is an agreement in principle in existence between the UK and EU, it is likely that UK MPs will be asked to vote on the terms of the deal before the Christmas parliamentary recess, a mere six weeks away.

The window of opportunity for the CJEU is exceedingly tight. It received the Scottish reference on the 3rd of October 2018. Sixteen days later, the President of the CJEU confirmed that, given the constitutional seriousness of the case, the case would be expedited. It will be heard on the 27th of November 2018.

The UK Government has formally objected to this preliminary ruling request on a number of fronts. Firstly, the UK Government has published a policy paper to the effect that the question from the Scottish court is still a hypothetical one and that the CJEU has overstepped its judicial role in effectively acquiescing in this subterfuge. These arguments can be dealt with cursorily. As a cooperative horizontal judicial process between national courts and the CJEU, it is for the national court alone to determine the appropriateness of sending an EU law question to the CJEU for adjudication. As such, it is a subjective task for the judges seised of the case before them to assess whether they require a resolution to an EU law question in order to enable them to make a decision (See for example, Case 126/80 Salonia).  Secondly, if that is the case, then the answer from the CJEU is not merely an advisory one, rather it is a sine qua non of the national judges preforming their constructive and practical constitutional role.

The UK Government's second approach to taking exception to this Scottish court reference was to challenge the process of requesting assistance from the CJEU itself. The Advocate General for Scotland alleged that the proper course for this issue should have been for the Court of Session to have appealed the case up to the UK's Supreme Court for adjudication rather than sending the case to Luxembourg. The Inner House of the Court of Session, on the 8th of November 2018 refused leave to appeal to the Supreme Court. The UK Government has not given up and has more recently submitted legal papers to try to get the Supreme Court to order cancellation of the reference request from the Court of Session. The Supreme Court has confirmed receipt of these legal papers and has assigned the case to Lady Hale, Lord Reed and Lord Hodge. It is to be expected that a ruling will be forthcoming from the Supreme Court given the Supreme Court's statement itself that it is aware of the urgency of the matter and the fact that the CJEU will hear the Wightman case on the 27th of November 2018.

Regardless of the relative merits or demerits of such an approach by the UK Government, these legal actions evidence a worryingly poor grasp of EU law principles. It is a well-established doctrine of EU law that the Article 267 TFEU Preliminary Ruling Procedure is not an appeal mechanism and as such national courts are free to submit requests to the Luxembourg court, free of any interference from higher national courts (See for example Cases 36 and 71/80 Irish Creamery Milk Suppliers Association v Ireland ECLI:EU:C:1981:62 and Case 338/85 Fratelli Pardini SpA v Ministero del Commercio con l'Estero ECLI:EU:C:1988:194).

Superior courts of the Member States are of course free to issue guidelines to the lower courts on when references should be sent to the CJEU (See for example the dicta of Sir Thomas Bingham MR in R. v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd Ex p. Else (1982) Ltd [1993] QB 534 and the case of Emerald Supplies Limited & Others v British Airways Plc [2017] EWHC 2420 (Ch)), and the CJEU itself issues guidelines on how to refer EU law questions to it, however, these guidelines cannot fetter the wide discretion afforded to national courts to make their own decision on the appropriateness of an Article 267 TFEU reference.  The lack of knowledge of basic underpinnings of EU law at the heart of the UK Government is either negligence writ large or an unashamed attempt to circumvent well established judicial lines of communication between national courts and the CJEU. Either way, it diminishes the reputation of UK Plc. and conversely enhances the standing and reputation of the Scottish courts and politicians.

Nevertheless, inexorably the Brexit clock lurches forward and it remains to be seen whether Scotland can Scotch Brexit for the evident utility of the entire United Kingdom.

*Update (23 Nov 2018): on 20 November 2018 the UK Supreme Court refused to give leave to appeal against the decision to refer, on the grounds that the Court of Session judgment was not final. The CJEU will therefore hold a hearing in this case as planned on 27 November. Also, you can find the full text of the written legal arguments of Mr Wightman and others before the CJEU here. 

Barnard & Peers: chapter 27

Photo credit: Scotcourts.gov.uk

Minimum Alcohol Pricing is Appropriate & Necessary: Scotch Whisky Association v Lord Advocate [2017] UKSC 76

Angus MacCulloch, Law School, Lancaster University (@AngusMacCulloch)

Lord Mance has handed down the long awaited judgment in SWA v Lord Advocate in the UK Supreme Court finally dismissing the SWA’s appeal, and permitting the Scottish Government to implement its Minimum Unit Pricing (MUP) policy in relation to retail alcohol sales. The scheme to introduce a MUP of £0.50 per unit, under the Alcohol (Minimum Pricing)(Scotland) Act 2012, has been delayed for 5 years by this legal challenge which characterised the scheme as being contrary to EU law; in that it was contrary to both Article 34 TFEU, as it was a measure having equivalent effect to a quantitative restriction on trade, and that it was contrary to the bar on price fixing under the Single CMO Regulation EU/1308/2013 covering wine.  

This is the fourth, and final, substantive judgment in this litigation. At first instance the Outer House of the Court of Session found MUP to be lawful, [2013] CSOH 70, and after receiving a response to a preliminary ruling from the Court of Justice of the EU, Case C-333/14 EU:C:2015:845, the Inner House, [2016] CSIH 77, also upheld the lawfulness of MUP. The SWA’s appeal was perhaps inevitable, but after a hearing in July 2017, the final judgment has largely confirmed the findings of both Scottish courts that the policy could be justified on the basis of the protection of public health.

By the time the case reached the Supreme Court it was largely settled that MUP could be characterised as a measure having equivalent effect to a quantitative restriction under Art 34 TFEU, and would be contrary to the Single CMO Regulation, but any restriction contrary to those provisions could be justified on the basis of public health protection. The majority of the discussion in the Supreme Court surrounded the proportionality of MUP; was there an alternate measure which could achieve MUP’s aim but which be less restrictive of trade or competition?

The Aim and Assessment of the Measure

Much of the Supreme Court judgment contains an, at times detailed, analysis of the public health evidence presented to justify the introduction of MUP. The CJEU addressed the appropriate time frame for the assessment of a measure and Lord Mance similarly adopted a permissive attitude to the question. Flexibility was given to allow the consideration of the most recent health studies, and the respondent, the Scottish Government, was permitted, at [28], to:

‘refine the aims advanced and to demonstrate that, on the material now available, the proposed measure is justified, even if it only meets an aim which is narrower than, but still falls within the scope of those originally advanced’.

Both the AG and the CJEU drew attention to the ‘two fold objective’ (CJEU [34]) of MUP, in relation to problem drinking and the general consumption of alcohol, but this flexibility allowed the Scottish Government to refocus their argument on what the new evidence showed to be the most important benefits of MUP, in relation to problem drinking, and away from the issues of general consumption. That was to their advantage when as it was seeking to justify a more targeted measure - MUP - over a more general one - increased excise duty.

The Test of Proportionality

Lord Mance opened with a consideration of the guidance set out by both AG Bot and the CJEU in relation to justification and the proportionality of restrictions under EU Law. After setting out sections of the AG’s Opinion Lord Mance characterised his approach as being a three part test: is the measure i) appropriate, ii) necessary, and iii) a balancing of the restrictive effects of the measure as opposed to possible alternatives [14]. In his assessment of the CJEU’s ruling on the question of proportionality Lord Mance found the CJEU’s test to be somewhat narrower, only relying on the first two limbs, although he did recognised that the CJEU considered some aspects of third limb within ‘necessity’. On this question of the third limb, or ‘proportionality stricto sensu’, Lord Mance posed the following rhetorical question, at [47]:

‘can it be that, provided an objective is reasonable and can only be achieved in one way, it is irrelevant how much damage results to the ordinary operation of the EU market?’

This task was described as being a comparison, ‘between two essentially incomparable values’ – health and the market [48]. It was also stressed that, ‘it was not for any court to second-guess the value which a domestic legislator may decide to put on health’ [48]. This rejection of a ‘balancing’ approach between the competing values of health and the market was important. It reduced the need for the Scottish Government to produce compelling economic evidence of the impact of MUP on future markets, but, more importantly, because it did not compel the court to weigh up, ‘the number of deaths or hospitalisations … [which were] “proportionate to” the degree of EU market interference’ [48].

The final decision on proportionality – after consideration of the new evidence and argument before the Supreme Court – was clear.

‘A critical issue is, as the Lord Ordinary indicated, whether taxation would achieve the same objectives as minimum pricing. … [T]he main point stands, that taxation would impose an unintended and unacceptable burden on sectors of the drinking population, whose drinking habits and health do not represent a significant problem in societal terms in the same way as the drinking habits and health of in particular the deprived, whose use and abuse of cheap alcohol the Scottish Parliament and Government wish to target. In contrast, minimum alcohol pricing will much better target the really problematic drinking to which the Government’s objectives were always directed and the nature of which has become even more clearly identified by the material more recently available’ [63].

This conclusive finding that MUP is the most effective way of targeting a particular pattern of problem drinking in Scotland reflects the same analysis of the evidence by the Lord Ordinary and Lord President in the Court of Session.

The other key point that Lord Mance went on to make concerned the respective roles of the Scottish Parliament, in setting health policy priorities, and the court, in assessing the proportionality of a measure. As the ‘balancing’ approach, suggested by AG Bot, had ready been rejected it is perhaps not surprising that Lord Mance restricted the role of the court.

‘the Scottish Parliament and Government have as a matter of general policy decided to put very great weight on combatting alcohol-related mortality and hospitalisation and other forms of alcohol-related harm. That was a judgment which it was for them to make, and their right to make it militates strongly against intrusive review by a domestic court’ [63].

But in perhaps the most important passage Lord Mance continued:

‘That minimum pricing will involve a market distortion, including of EU trade and competition, is accepted. However, I find it impossible, even if it is appropriate to undertake the exercise at all in this context, to conclude that this can or should be regarded as outweighing the health benefits which are intended by minimum pricing’ [63].

Given the strength of that conclusion it is difficult to see a circumstance in which a UK court presented with clear evidence of prospective health benefits from an intended public health intervention, which is predicted to prevent mortality and hospitalisations, would decide that such a measure is a disproportionate intervention.

On Evidence

The Supreme Court’s heavily reliance on the evidence base behind the adoption of MUP is unsurprising. The CJEU stressed the importance of evidence to justify a measure in both the SWA reference and Case C-148/15 DPV. There is, however, no better example of the extent to which evidence can become important, but also a significant burden (as indicated at 411) to a court, than BAT v Dept of Health [2016] EWHC 1169 (Admin).

Although the Supreme Court was heavily reliant on the wealth of modelling evidence presented to it, it did recognise that much of the evidence was, as the AG described it, ‘somewhat experimental’, and that it would difficult ‘predicting the precise reactions of markets and consumers to minimum pricing’ [62]. In that regard the Lord Mance appears to have taken comfort that the proportionality of the measure in the longer term would be assured as the Scottish Government had built a sunset clause into the Act, and that a formal review of the actual effects of the legislation would be required or it would cease to be in force after six years.

Conclusions

I have been following this case for a very long time and my initial reaction is that it is a good conclusion. The Supreme Court has made it clear, much more so than the CJEU did, that a convincing and well evidenced public health argument should, and hopefully now will, win out over trade or competition concerns. The proportionality test still has teeth. A Member State seeking to justify a measure must be clear about its aim, and it must have a good evidence base to explain and justify the effectiveness of the intervention it has chosen. But it now appears that the courts, in the UK at least, will now give some deference to the policy choices of the legislature if they stand up to that scrutiny.

It is not the courts role to second-guess policy in these areas, but I am sure that we will see new challenges if other jurisdictions attempt to introduce similar policies. Other administrations may see this case as clearing the way, but they should be careful as the decision in this case was tied to a detailed analysis of a particular Scottish problem. It is not the case that the same intervention will be appropriate or necessary everywhere else.

Barnard & Peers: chapter 15, chapter 16

Photo credit: Sky News

The UK General Election and Brexit: Comparing Party Manifestos

Professor Steve Peers

Tomorrow sees another general election in the UK, just two years after the last one. Since this is (according to the Prime Minister) an election on Brexit, it seems appropriate to review the parties’ views on this issue, including future UK/EU relations. I will examine the parties’ views in turn – focussing on larger UK-wide parties plus (due to its political importance) the Scottish National Party. The final section is an overview and comparison.

Conservatives

The Tory manifesto position on Brexit is largely a summary of the position set out in the Brexit White Paper (discussed here), and the planned Great Repeal Bill (discussed here), which would keep EU law as part of ‘UK law’ for the time being. Essentially, the Tories believe that the future UK/EU relationship should be based on a free trade deal without ‘vast’ payments into the EU budget or free movement of persons. Participation in the customs union and internal market would end, and there are some details about the transition to full separate UK participation in the World Trade Organisation. There’s an objective of continuing security cooperation with the EU, but the details are not spelled out.

Some fair settlement of UK accounts would be made upon departure from the EU, but the Tory policy is ‘no deal is better than a bad deal’ – without spelling that position out further. Fortunately, the UKIP manifesto (discussed below) addresses this point. Unlike UKIP, the Tories do not attempt to ‘sell’ the no-deal scenario – which is just as well considering the concerns about its potential economic damage. Rather there is much discussion of what the positive outcomes of a deal would be.

Future immigration policy would retain an objective of net immigration below 100,000 – which would entail reducing non-EU migration (an issue largely outside the scope of EU law for the UK) as well. This would include further restricting the number of foreign students and family members, despite promises from the Leave side made during the referendum campaign to make it easier to admit UK citizens’ non-EU family members.  

Labour

Labour accepts the result of the referendum but sets out in more detail than the Conservatives what the future UK/EU relationship would look like.  It supports continued relations with Euratom and the single energy market, plus wants to maintain the ‘benefits’ of the single market and customs union without explaining how. Other remarks from the party suggest that it opposes continued participation as such in the single market and customs union, and opposes free movement of persons continuing.

Labour reject the ‘no-deal’ option, support a transitional deal, and list a number of areas where they still wish to cooperate with the EU: research programmes, Erasmus, Europol, Eurojust, the European Arrest Warrant (EAW), climate and anti-terrorism cooperation.  They have a different policy from the Tories on future family migration, as they would waive the strict income requirements for family members rather than tighten them. (There would still be a requirement not to use public funds). They would ‘guarantee existing rights’ of EU citizens in the UK. They set out in detail their future trade policy, insisting on links between trade and other concerns like the environment and human and labour rights.

Liberal Democrats

The LibDems aim for a referendum on the final Brexit deal, and support continued membership of the EU single market (including free movement of people) and customs union. They make specific reference to staying in Erasmus, preserving social and environmental rights, and participating in Europol, the EAW, EU databases, EU research funds, the European health card, abolition of roaming fees, and pat passports. Like Labour, they suggest links in between human rights and the environment in future trade deals. LibDems also give some detail on the position of EU citizens in the UK:

Greens

Similar to the LibDems, Greens propose a referendum on the final Brexit deal, and seek to continue with free movement and the single market. They also wish to guarantee EU citizens’ rights, retain social and environmental safeguards, and link trade deals to other standards.

Scottish National Party

The SNP manifesto views on Brexit reiterate its two key positions: Scotland, or the UK as a whole, to stay in the single market (previously discussed here), and a Scottish independence referendum when the terms of Brexit are known (previously discussed here). They also repeat their support for guaranteeing EU citizens’ rights.

UKIP

Finally, that brings us to the UKIP manifesto. This manifesto gives us an indication of how the ‘no-deal’ scenario hinted at in the Conservative manifesto might play out. UKIP opposes the use of the Article 50 procedure to negotiate with the EU, focussing instead on the purely domestic law change of repealing the European Communities Act. They still aspire to a free trade deal with the EU, however, although they are indifferent to whether they get one – since they also promise to spend the £11 billion “windfall” from tariffs on EU goods. There’s no acknowledgement of the effects on the UK economy of this scenario: indeed, they argue that talk of a “cliff edge” from leaving the EU without a trade deal is “hyperbole”, since trade will still continue. This ignores the obvious prospect that the level of trade will decrease if tariffs and non-tariff barriers are imposed. While they reject the single market and customs union, they want EU/UK trade to continue “on the same basis as present”.

In any event, UKIP not only refuse to make any payment upon departure, they expect the UK to receive a sum from the EU as it leaves. Moreover, they pledge to oppose the existence of customs unions like the EU in the World Trade Organisations – even though the WTO expressly provides for the existence of customs unions, and (as UKIP even acknowledge) the EU is a WTO member in its own right.

Overall then, UKIP expects to receive all the current trade benefits of EU membership, with none of the perceived drawbacks, plus a payment on the way out. All of this while refusing to use the official departure route and campaigning to end the EU’s existence as a customs union and WTO member. If you seek a visual metaphor for how UKIP sees the world, imagine their leader Paul Nuttall – a star football player in his own mind - repeatedly scoring penalties over the heads of 27 massed goalkeepers.

UKIP’s rage against the dying of their light deserves one final paragraph. Their immigration policy includes not just an unreal zero migration target, but also a demand that new immigrants observe UK “values” to be admitted. This from a party who have continually disregarded the basic British values of tolerance, equality and fair play: members have referred to gays causing floods, and repeatedly insulted minorities. Indeed, after the last European Parliament election, to receive EU money UKIP did a deal with a party whose leader denies the Holocaust, and claims that women are inferior and obtain their political beliefs via biological transmission from the men they have sexual intercourse with. Clearly, politics’ loss is gynaecology’s gain.

Overview

There are two broad categories of opinion on the EU in this election, but also important differences within each group. The Liberal Democrats, Greens and SNP want to continue participation in the single market as well as a number of other EU policies. Moreover, all three parties want to offer the option of continued EU membership – the LibDems and Greens by means of a UK-wide referendum on the final deal, and the SNP by means of a referendum on Scottish independence.

The Conservatives, Labour and UKIP all favour departure from the UK without the single market, the customs union and free movement of persons, and aim instead for a free trade deal with the EU. However, these similarities soon end.  Like the first group of parties, Labour would guarantee EU citizens’ rights (in fact, it supports guaranteeing their existing rights, an important nuance), and would seek participation in a number of specific EU measures. The Tories are considerably cooler and less detailed on these issues, and are willing to contemplate a ‘no-deal’ scenario, although they cannot bring themselves to ‘sell’ it. Labour would welcome foreign families and students; the Tories see them as numbers to be reduced.

UKIP offers voters not just one fantasy, but a choice of two fantasies: either a problem-free ‘no-deal’ scenario, or a deal with all of the benefits and none of the supposed drawbacks of EU membership, with a gold watch for UK service to the EU thrown in for good measure. Of course, some would argue that UKIP’s fantasies are simply more explicit than Labour’s or the Conservatives’ – since the EU has made clear in its negotiating position that it is not possible to retain all benefits of the single market for a former Member State which leaves it.

Voters may not wish to make Brexit the main reason for their vote, or may in any event choose to cast a tactical vote against a party they dislike, rather than vote for a party which they most agree with but which has no chance of winning their seat. But it can hardly be said that all parties take the same view on Brexit issues, and the summary above makes clear that for those whose concern is Brexit first and foremost, there is a lot at stake in this election.

Manifestos: Conservatives Labour Liberal Democrats Greens Scottish National Party UKIP

Barnard & Peers: chapter 27

Photo credit: BBC

Scotland, the EU and ‘indyref2’: the legal issues

Professor Steve Peers

Yesterday, Scotland’s First Minister (Nicola Sturgeon) announced the Scottish Government’s wish to start the process of holding a second independence referendum, once the main elements of the UK’s final Brexit settlement was known. This follows the UK government’s rejection of alternative suggestions put forward by the Scottish government in relation to Brexit – which I previously discussed here.

Obviously any new independence referendum raises issues besides Scotland’s relations with the EU. But since the second referendum, if it goes ahead, will be more closely linked to issues of Scotland’s EU membership than the first one, it is a good moment to outline the main legal issues – and to address one specific point (on Scottish deficits as a membership criterion) in a little more detail. Of course, this blog might well be returning to these issues again in the months to come. (Some of the following is an updated version of my blog post from October 2016 on these issues.)

Scotland as an independent non-EU country

An independent Scotland might not be an EU Member State, at least initially, but rather have an association with the EU either as an interim step toward membership or indefinitely, in the event of political difficulties obtaining EU membership on either the Scotland or EU side (or both). An association with the EU might well be closer than the relationship between the remaining UK (rUK) and the EU – particularly in light of the UK government’s intention to leave the EU single market and customs union.

The most obvious route for Scotland to consider would be membership of the European Economic Area (EEA), along with Norway, Iceland and Liechtenstein. The EEA provides for participation of these non-EU countries in the EU’s single market freedoms and all the EU legislation related to them, as well as most EU employment and environmental law. But Scotland would not be covered by EU laws in other areas, notably agriculture, fisheries, tax and justice and home affairs – although, like Norway and Iceland, it could sign separate treaties with the EU on these issues. Although the current EEA countries have joined Schengen, this is a separate issue (agreed years after the EEA), and Scotland would have no legal obligation to do the same.

There would be no obligation to join the EU single currency (or any related constraints regarding deficits), and most significantly Scotland would be free to sign separate trade agreements with non-EU countries, because the EEA does not cover the EU’s customs union. This is particularly important because it means Scotland could seek to retain a closer economic relationship with the rUK than the rUK might have with the EU. Scotland could also “go global”, as Brexiteers say, by signing up to the free trade treaties already signed by members of the European Free Trade Area (EFTA: the EEA states plus Switzerland) with non-EU countries. (In principle, EFTA membership requires this). And it would retain power to sign its own treaties on top (or to seek to retain its own versions of the EU’s free trade deals with non-EU countries, as the rUK is likely to do). Scotland would have to become a separate WTO member, but could try to fast-track this by copying the rUK’s process of detaching from the EU’s WTO membership.

Is there a downside to EEA participation? Some have argued against the UK joining the EEA due to objections to single market participation, the need to accept ECJ jurisdiction, continued contributions, its undue size compared to other members, or its lack of influence over EU laws which would apply to it. Are these arguments transferable to Scotland? The first to third objections are not, since Scots voted to remain in the EU, entailing the single market, ECJ jurisdiction and budget contributions anyway. (In fact, the non-EU EEA countries are not subject to the jurisdiction of the ECJ, but a separate body called the EFTA Court: it usually follows ECJ case-law, but its decisions are not always binding. EEA financial contributions do not go straight to the EU budget, and would logically be recalculated in light of Scotland’s economic position anyway).

The fourth objection (size) is unconvincing: Scotland is broadly comparable with Norway, in particular in terms of population, location and economy. Finally, EEA states have a modest say on EU laws, being consulted on draft EU legislation and having the option to reject the application of new EU laws (although the EU might retaliate if they do that). Anyway, this is certainly more say over EU laws than Scotland would get after Brexit as part of the UK. In fact, it’s more say than Scotland gets over EU laws while the UK is an EU Member State – given the marginal influence that Scotland has over anything that the UK government does.

So the EEA option includes things that Scotland seeks (single market participation) while steering clear of things it may wish to avoid (the single currency and deficit criteria, Schengen, EU trade policy with non-EU countries, and EU fisheries policy).  It also has the advantage of being potentially far speedier than joining the EU: the EU can decide to apply treaties with non-EU countries provisionally, pending national ratification.

What about the prospect of a ‘Spanish veto’ over Scotland joining the EEA? Here we have actual evidence to suggest that it’s not very likely. For the EU has recently concluded an association agreement with Kosovo – despite Spain (and four other Member States) refusing to recognise the independence of that country after its unilateral declaration of independence. (Note: the EEA is also an association agreement, and Member States have a veto over the initial conclusion of such treaties).

Failing EEA membership, Scotland could still seek other forms of relations with the EU which may be closer than the rUK might enjoy, possibly as a non-EEA member of EFTA like Switzerland. Unless Scotland followed Turkey in joining the EU’s customs union, this would again leave it free to simultaneously retain a strong economic relationship with the rUK.

Scotland as an EU Member State

I blogged on this issue in 2014, during the first Scottish referendum, but I’ll summarise and elaborate on those views again. The basic point is that the Treaties list the Member States by name, and since the ‘United Kingdom’ is unlikely to be interpreted as automatically referring to Scotland alone after independence, either an accession Treaty (Article 49 TEU) or a Treaty amendment (Article 48 TEU) is necessary to include Scotland’s name as a member.

The Treaty amendment route – which the Scottish government called for in the previous independence referendum – could also entail an amendment to Article 49 TEU, if necessary, to refer to the special case of Scotland: “By way of derogation from the above paragraphs, Scotland shall accede to the European Union pursuant to the Treaty of Culloden”.  One possibility is a Treaty amendment which simply replacing the words “United Kingdom” wherever it appears in the Treaties with “Scotland”; this would mean that Scotland retained the UK’s opt-outs from the single currency, justice and home affairs and Schengen (the budget rebate is set out in secondary legislation). This is perfectly feasible legally, and there is a firm precedent in the Treaty of Lisbon, which in Article 2(2) to 2(8) provides for a whole host of amendments just like this: replacing “Community” with “Union” wherever it appears, for instance.  

However, the EU position at present is that it will insist upon an accession process under Article 49. This would entail a negotiation process, which could possibly be fast-tracked in light of Scotland’s existing de facto EU membership as part of the UK. It should be noted that when Iceland applied to join the EU in 2010, the Commission’s opinion on accession took account of Iceland’s EEA membership, and indeed it was possible to close many negotiating chapters quickly, before Iceland withdrew its application in 2013. By contrast, only one out of 35 negotiating chapters has been closed with Turkey, after many years of talks.

Since unanimity of Member States is required in any event, some have argued that there is a risk of a Spanish veto of Scottish accession, because of concerns that Scotland obtaining easy EU membership would inflame separatist tensions in Spain or other countries. On the other hand, some have argued that these concerns are misplaced.

Another argument is that the EU might not be willing to talk to Scotland until it is fully independent – although it should be noted that the EU has relations with Kosovo (see above), even though not all Member States recognise that country legally.

This brings us to opt-outs. If the EU is not willing to extend the UK’s current opt-outs to Scotland, this would in principle mean full participation in the single currency and justice and home affairs policies, as well as the loss of Scotland’s share of the UK’s budget rebate to Scotland. Each issue is worth further discussion.

The rebate is set out in secondary EU legislation which usually is reviewed every seven years or so, and must be agreed unanimously. Scotland would therefore be in a position to refuse its consent on the next occasion unless a rebate were agreed.

As for justice and home affairs, a distinction must be made between general EU policies and those related to Schengen – the border-free area. On the latter point, there is already a protocol to the Treaties which guarantees the continuation of the ‘Common Travel Area’ between the UK and Ireland – which will continue to apply after Brexit. The details will have to be worked out, but the starting point legally is a requirement imposed upon the EU to protect the common travel area. Arguably this not only protects the Irish position concerning the Northern Ireland border in Brexit talks, but also the position of Scotland in potential accession talks. And whatever solution is found for the island of Ireland is therefore transposable to the (rather shorter) border between Scotland and England.

As regards other JHA issues, the UK already takes part in most civil and criminal law EU measures, and so Scotland’s participation will not change anything. It should be noted that Scotland would not have to take part in the planned European Public Prosecutor, as that body will be set up by means of ‘enhanced cooperation’ and new Member States do not have to participate in measures set up by that EU framework, which is a system allowing for the adoption of EU law by a group of willing Member States, allowing the unwilling Member States to stay out (see Article 20(4) TEU).

That brings us to the single currency – and the related issue of deficits. Scotland’s deficit upon independence is sometimes discussed as if it can be calculated with absolute certainty. This is false: the actual deficit in practice would depend upon the terms of Scotland’s arrangements with the rUK, including its share of rUK debt, as well as broader trade and economic developments, including what currency Scotland uses and the decisions on tax and spending which a Scottish government takes upon independence.

While new Member States have in principle an obligation to join the single currency, it must be noted that the EU does not attempt to enforce this obligation. Sweden has not joined since the currency was created in 1999; Poland, Hungary and the Czech Republic have not joined since 2004, when they acceded to the EU; and Romania, Bulgaria and Croatia have not joined either.

As for the deficit criteria, there is a requirement of 3% of GDP in order to join the single currency. But that is not a requirement to join the EU. Otherwise why have so many new Member States not simply joined the single currency soon after EU membership?

In any event, this is easily provable: the Commission’s monitoring report on Croatia joining the EU noted that it had 4% and 5% debts in the years just before joining the EU. But its membership was still approved.

Of course, a large deficit is going to cause a country other difficulties besides EU membership, and in the event of EU membership the rule is in principle that a country should aim for deficits less than 3% of GDP after joining. But this rule is not absolute and the EU has little means to enforce it: sanctions for breaching it can only be imposed upon Eurozone countries, and the EU has never imposed them anyway. There would be strict conditions imposed upon any bailout deal (if necessary), inside or outside the Eurozone – but that would also apply outside the EU, for countries that need a bailout from the IMF alone. Whether Scotland might have an unmanageable deficit is certainly an important issue – but it’s quite false to say that “it can’t join the EU unless its deficit is less than 3%”.

Photo credit: Daily Record

Barnard & Peers: chapter 27

The judgment in Miller: Representative Democracy Strikes Back

Professor Steve Peers

Yesterday the UK’s Supreme Court gave its long-awaited judgment in the case of Miller (and a parallel Northern Ireland case), concerning the process of the UK leaving the EU. There’s already a detailed analysis of the constitutional law aspects by Professor Mark Elliott here. So my post will summarise the key elements of the judgment, and put it into the broader context of the Brexit process and the role of Parliament.

There are two main issues in the case: the role of Parliament in triggering the Article 50 process, and the role of devolved legislatures. Like the Supreme Court, I’ll take these two points in turn.

Role of Parliament

The Supreme Court, like the High Court ruling in Miller, began by pointing out that it was not ruling on the merits of Brexit, or on any the substantive details of how it would take place. It was only ruling on which political bodies in the UK have the power to send the Article 50 notice to the European Union, thereby starting the clock ticking on the timetable for Brexit. The central question in the case was whether the government could start the process, by means of the ancient ‘Royal prerogative’, or whether some action by Parliament was also necessary.

While the Royal prerogative traditionally gives the British executive power to decide (among other things) on the negotiation and ratification of treaties, and the withdrawal from such treaties, international treaties have no effect in domestic law without an Act of Parliament to give them effect.  In general, the royal prerogative cannot be used to confer rights or remove rights of individuals. Given that the UK’s EU membership is largely regulated by an Act of Parliament – namely the European Communities Act – does it therefore follow that an Act of Parliament (or some other form of consent by Parliament) is necessary to authorise the government to begin the process of removing those rights?

The Supreme Court ruled by a majority (8-3) that Parliamentary consent was indeed necessary. It did so by pointing to the particular nature of EU law – a ‘dynamic’ process of new law-making by EU institutions, which takes effect as part of the domestic law of the UK by means of (primarily) the European Communities Act.  

In reaching this conclusion, the Supreme Court touched on a number of important points. Most significantly, it expressly stated that the judges were not deciding the question of whether an Article 50 notice could be revoked after it was sent, or whether any conditions could be attached to it (para 26). This compares to the High Court, which had accepted the agreement between the parties that the notice to withdraw from the EU could not be revoked.  

This is significant because some would like Parliament or the public to consider whether to withdraw the Article 50 notice, with the result that the UK remains in the EU, when the terms of the final agreement to leave are known. That objective is obviously not feasible in principle unless Article 50 is indeed revocable – although there might be another route to the same end: an indefinite suspension of the two-year time limit for leaving the EU.

A case will soon be brought before the Irish courts on this point, seeking to obtain a reference to the ECJ to clarify the issue. The Irish courts – or the courts of any other Member State – now need not be concerned by any possible awkwardness stemming from taking a different view from the UK courts on this issue. Furthermore, if the revocability issue is somehow brought before a UK court, any lower court can see that the Supreme Court has deliberately left the issue open, and so can consider the issue afresh.  

Next, the Supreme Court provided a neat – if belated – answer to the argument that EU law membership has rescinded parliamentary sovereignty. It observes (paras 60 and 66) that EU law only applies in the UK as a matter of domestic law because Parliament had agreed to this in the European Communities Act. It followed that Parliament could always curtail or abolish this domestic effect of EU law, if it chose.

The Supreme Court also ruled that Parliamentary involvement in converting EU law into British law, by replacing the European Communities Act with a planned ‘Great Repeal Act’, was not sufficient to substitute for the role it should have in triggering the Article 50 process (para 94). Its discussion of the European Union Act 2011 (para 111) does not address head on the argument some have made that this act requires a further referendum before leaving the EU. For a number of reasons, the judges confirm that the referendum result is not legally binding – although they also acknowledge its political significance (leading up to para 125). Finally, it makes clear that legislation (ie an Act of Parliament) is required to trigger Article 50 (para 123). A parliamentary motion won’t do – meaning that parliament will have more chance to influence the result.

       

Devolved legislatures

What about the position of the UK’s devolved legislatures, in Scotland, Northern Ireland and Wales? First, the Supreme Court ruled that those provisions of the Westminster legislation setting up these bodies which require them to act in accordance with EU law do not require those legislatures’ consent to the UK withdrawing from the EU. Secondly, it ruled that the ‘Sewel Convention’ – the informal constitutional rule that Westminster will not normally legislate in areas of devolved powers without devolved legislatures’ approval – was not a legally binding rule. Finally, it also ruled that the Good Friday Agreement did not address the Brexit issue.

Comments

What does the judgment mean for the Brexit process, and for parliamentary democracy more generally? On Brexit, it means that the government needs Parliament to adopt an Act to trigger Article 50, and it intends to propose a bill to this end very soon. Before becoming an Act of Parliament, a bill needs majority support from both Houses of Parliament. While, in light of the referendum result, there is no prospect that a majority of MPs will reject triggering Article 50, the bill is potentially subject to amendments – although the government may try to argue that amendments to its short, highly focussed bill are inadmissible.

But certainly the opposition parties will try. The Labour party has announced plans to table a number of amendments; the Scottish National Party says it will table 50 amendments; and the Liberal Democrats will propose holding a referendum on the final agreement reached by the UK and EU. In the House of Commons, the combined opposition would need around ten Conservatives to join them to pass any amendment. The House of Lords has to pass the bill too.

For a good overview of possible amendments, see this post by Professor Jeff King. In my view, one particular key amendment is essential: ensuring that an Act of Parliament must be passed to approve the UK/EU Brexit deal. That will give Parliament, in 2019, the full power to decide what to do then, from the range of possibilities available.

Anticipating one popular amendment, the government conceded already today that it will publish a White Paper on Brexit. However, rather cynically it seems that the White Paper will only be published after much of the parliamentary scrutiny has taken place. And it has been rightly suggested that an impact assessment would be much more useful.

While the Miller judgment means that arguments over Brexit primarily shift from the courts to parliament, it is not quite the end of legal proceedings. As noted already, the Irish case about the possible revocability of Article 50 will soon be launched, and the Miller ruling is expressly neutral on this point.

Furthermore, the ruling arguably strengthens the contention in a planned case (Wilding and others) that Parliament must also vote on whether the UK should leave the European Economic Area (EEA), a separate treaty that extends the EU single market to some non-EU countries.  I’ve previously blogged on that planned case here, and I can update the status of the case, thanks to Chelvan of No5 chambers, who is acting for one of the claimants (led by Ramby de Mello, for the second Claimants). The permission hearing in the case is due 3 February, and these claimants are arguing that (1) as with the European Communities Act, the royal prerogative does not give the executive power to issue an notice under Article 127 of the EEA; and (2) following the Miller judgment, the exercise of the prerogative without authority of an Act of Parliament will lead to a destruction of fundamental rights and freedoms conferred to UK and EEA nationals living and residing in the UK. As Miller confirmed, the referendum result is advisory; and in any event, it was an expression of political will with respect to leaving the EU and not the EEA.

What about the broader impact of the judgment? It is striking that in every respect, the judgment places the Westminster Parliament at the centre of the Brexit debate. By rejecting use of the royal prerogative to trigger Article 50, the ruling gives Parliament the power to set conditions upon the executive’s conduct of Brexit talks, and ensures that a broader public debate takes place. By affirming that the referendum result was not legally binding, it guarantees that legal authority remains with elected Members of Parliament – buttressed with unelected Lords – rather than the general public. And by asserting that devolved assemblies do not have a veto over Brexit, it entrenches Westminster’s decisive role in the national political debate. Miller raised deep questions about a number of developing tensions in the fabric of British constitutional law: between direct and representative democracy; between Parliament and executive; and between devolved powers and UK-wide government. To every question, the answer was, in effect: the Westminster Parliament.

Of course, there are practical limits to Westminster’s legal authority; and the judgment expressly recognises them. The outcome of the referendum vote is an unavoidable political reality. And so is the convention of seeking seeking the views of devolved assemblies – even though the government has already rejected their views, and intends to proceed against the opposition of the majority of voters in Scotland and Northern Ireland, and (as regards ‘hard Brexit’ at least) against the opposition of the government of Wales and the Plaid Cymru party (see their recent position paper). Furthermore, the executive has many ways to influence the conduct of Parliament’s business.

But for all these caveats, the judgment has certainly returned a degree of power over Brexit to the mother of Parliaments. The outcome of the debate over the Article 50 bill, in conjunction with the battle to come over the ‘Great Repeal Bill’, will determine how important Parliament remains as Brexit unfolds.

Despite many constitutional lawyers’ criticism of the technicalities of the judgment, in my view it at least fully expresses the traditional spirit of the UK constitution – and Parliament’s historic role in British political life. I’m an infrequent visitor to the Houses of Parliament, but I’ve experienced Ian Paisley push rudely in front of me in a queue, Dennis Skinner swear randomly at me in a lift, and Liam Fox glare angrily at me in a corridor. (Reader, I glared back at him). It’s the birthplace of boundless political dreams – yet also the graveyard of countless political careers.

Westminster's position may not last. Many have legitimate concerns about Parliament: the Hogarth cartoons displayed on its walls remind us that concerns about its scandals stretch back through the centuries.  There are valid arguments for further decentralisation of power to the regions, cities and devolved assemblies; for direct democracy; and for the efficiency of executive power. But for now, its pivotal role in the deciding the key aspects of Brexit can only be welcomed.

Barnard and Peers: chapter 27

Photo credit: the Telegraph

Scotland's Place in Europe: Comments on the Scottish Government's new proposals

Professor Steve Peers

Today, the Scottish government published its long-awaited discussion paper on ‘Scotland’s Place in Europe’. Although, as the paper points out, that government supports both EU membership and Scottish independence, the paper focusses on what should happen in the event of Brexit with Scotland remaining part of the UK. It would therefore be quite dishonest for anyone to dismiss the paper as simply ‘rejecting the referendum result’ (either the Brexit or the Scottish independence referendum result) or as ‘banging on about independence’.

So what does the paper propose? Essentially it discusses two options: a) a UK-wide approach to Brexit that would address the concerns of Scottish voters (among others); and b), failing that, a distinct approach for Scotland. It also makes c) the argument for further devolution of powers within the UK in light of the Brexit process. I’ll address mainly points a) and b), although there’s a necessary link between b) and c) – ie a distinct approach for Scotland/EU relations post-Brexit would more obviously require further devolution. Some of this ground is covered in a previous blog post, but it makes sense to revisit the issues in light of the new paper.

UK-wide response to Brexit

The paper primarily argues that the UK should stay in the EU’s single market as extended to non-EU countries like Norway and Iceland, in the form of the European Economic Area (EEA) treaty. It also argues that the UK should remain inside the EU’s customs union, which governs EU trade relations with non-EU states. As the paper rightly points out (at para 104), these are two separate issues – it would be possible to join one but not the other. It’s sometimes argues that being part of the single market entails being part of the customs union, but this is false, as the case of Norway (in the single market, but not the customs union) and Turkey (in the customs union, but not the single market) indicate. Although to date no non-EU state is part of both the single market and the customs union, there is no legal reason this cannot take place.

While it’s sometimes argued that staying in the single market is the same as staying in the EU, and would therefore be a rejection of the referendum result, this is false. As already noted, the EEA agreement doesn’t include the customs union, so the UK would be free to reach trade agreements with non-EU countries. It also does not extend to issues such as fisheries and agriculture (as the Scottish government paper points out), as well as EU foreign and defence policy, tax, and justice and home affairs issues. Norway and Iceland have agreements with the EU on some of these issues, such as participation in the Schengen open borders deal, but these are separate from EEA membership.

Today’s paper tackles a number of the objections to EEA membership.  It correctly notes (at para 100) that EEA membership does not mean being subject to the jurisdiction of the European Court of Justice (ECJ), which is a ‘red line’ for the UK government. However, it does mean being subject to the jurisdiction of an EFTA Court, which usually follows the ECJ where a case concerns an issue within the scope of the EEA treaty. It should be remembered, though, that some EFTA Court judgments (those following references from national courts) are not binding, unlike EU court rulings.

As regards the UK’s budget contribution to the EU, it points out correctly (at para 103) that contributions by non-EU EEA members are calculated differently (they don’t go straight to the EU budget, for instance), and may end up being less for the UK than at present. On the issue of immigration from the EU, the report fails to mention (at para 101) that a safeguard clause could be used to limit EU citizens coming to the UK. The Scottish government would have no interest in using this clause, but it could be invoked on a regional basis – for instance allowing screening of job applications from EU migrant workers at the employer level in England and Wales. While the report notes that non-EU EEA countries are consulted on new EU laws within the scope of the EEA, it doesn’t mention the possibility of non-EU EEA states rejecting the extension of those new laws to them.

Some things could be clearer in the report. There’s a list of areas besides trade where it advocates UK retains a strong relationship with the EU, but it’s not always clearly spelled out whether these are part of the EEA or not. For instance, private law (para 78), discrimination law besides sex discrimination law (para 79), EU funding to Scotland (para 89), research funding (para 92), refugee  issues (para 94) and criminal law (para 91) are outside the scope of the EEA, and so would need to be the subject of separate deals between the UK and the EU. Conversely, consumer law (para 79) and employment law (para 81) are within it. The report does make clear that many – though not all – EU environmental laws are inside the scope of the EEA (see para 93).

In particular, while the report advocates an interim arrangement for the UK leaving the EU, it does not suggest any details of what that might entail – and does not discuss the possibility, favoured by some ‘liberal Leavers’, that the UK could stay in the EEA only on an interim basis, pending negotiation of a comprehensive trade agreement.

Scotland-only approach

The report correctly notes that there is already geographical asymmetry (ie different application of the law in different parts of a country), not only in the application of EU law to parts of Member States and in the application of the EEA, but also in the UK’s planned response to Brexit. It proposes to follow the same approach to Scotland, which would participate in the EEA either via ‘sponsorship’ of the UK or directly (while still part of the UK).

This raises issues concerning the movement of goods or people between Scotland and the rest of the UK, if the two have different arrangements as regards relations with the EU. Some of these issues are discussed in detail in the paper, but it largely relies on arguing that whatever solutions are found for the Northern Ireland/Irish Republic border (as promised by the UK government) can be applied by analogy to relations between Scotland and the remaining UK.

Comments

The prospect of the UK staying in the EEA (or a comparable system) is legally much easier to arrange and negotiate than any Scotland-only approach to Brexit. However, as the report notes, EEA membership seems unlikely for political reasons, since the UK government seems unenthusiastic about any obligations regarding the free movement of people. On this point the report could have done more to address these concerns by discussing the possible use of the EEA safeguard clause. It could also at least have advocated participation in the EEA as an interim measure, given that the UK government in recent weeks has appeared increasingly open to the idea of some interim arrangement following Brexit in principle.  

Equally – although the report does not discuss this – a Scotland-only approach has political problems, as neither the UK government nor the remaining EU seem willing to discuss the idea.

However, the Scottish government might in theory have more success with its proposals relating to devolution. As it correctly notes, devolution issues are bound to arise once the Westminster Parliament examines the planned ‘Great Repeal Bill’ next year – since the conversion of EU law to UK law necessarily raises the question of how this process relates to the powers of the UK’s devolved governments. And on this issue, there is possibly more broad political support: the paper refers in particular to the interest of the Labour party in rethinking devolution, whereas that party does not seem interested in EEA membership for the whole UK and has not (to my knowledge) expressed any view on Scotland-only solutions for Brexit.

In this context, there is the prospect of a coalition of opposition MPs and rebel Conservatives with a number of common (and linked) concerns about the future Bill: ruling out lower standards for environment and employment law, addressing concerns of the devolved legislatures, and limiting the executive’s power to amend Acts of Parliament to reduce standards.

Beyond that is the specifically Scottish political context. If the Scottish government’s proposals on all three issues are rejected by the UK government – given the willingness of today’s report to accept both Brexit and Scotland remaining in the UK – this might be the occasion to argue that a further referendum on Scottish independence is justified, although other factors (such as opinion polling) will also play a big role in that decision.

Barnard & Peers: chapter 27

Photo credit: Business for Scotland