A Renaissance of the Brexit talks? Theresa May’s Florence speech

Professor Steve Peers*

Today’s speech by Prime Minister Theresa May was widely understood to be an attempt to unblock the talks on the Brexit process, which have clearly become stalled, in particular over financial issues. Will her speech accomplish that aim? Or will its implicit attempt to reassure Leave voters in the UK, especially in the cabinet and the press, mean that it fails to unblock talks? And what does it tell us about the future of UK/EU relations?

The key feature of the talks is that they are sequenced. In an initial phase of talks, the main issues are: a) the position of EU27 citizens in the UK, and UK citizens in the EU27, after Brexit (discussed here); b) the extent of outstanding UK commitments to the EU; and c) the issue of the border between Ireland and Northern Ireland (discussed here). Only if the EU judges there to be ‘sufficient progress’ on these issues will the talks move to a second phase, about the future trade relationship between the EU and the UK and a transitional arrangement to bridge the gap between Brexit Day and that future arrangement.

As things stand, the EU will not judge there to be ‘sufficient progress’ in October, mainly because the UK has not accepted any specific financial commitments, although there has also been little progress in discussion of the Irish border and there are still gaps between the two sides’ positions on UK and EU27 citizens.

In that light, has May’s speech moved the UK closer to reaching the ‘sufficient progress’ threshold? On Northern Ireland, she simply observed that both sides wanted to avoid a ‘hard border’, but said nothing new about that. The UK’s proposals on novel customs methods to address the issue (by the government’s own admission) ‘blue sky thinking’, but she did not further flesh them out.

On the issue of EU27 citizens, she committed to setting out the withdrawal agreement into UK domestic law, and permitting the UK courts to take account of relevant ECJ case law. But this goes no further than the draft EU Withdrawal Bill, which already assumes (in Clause 9) that the withdrawal agreement will be transposed in domestic law and sets out (in Clause 6) that pre-Brexit ECJ case law binds lower courts (but not the UK Supreme Court, the government or Parliament) and that post-Brexit ECJ may be considered at a UK court’s discretion. While the Prime Minister made much of the excellence and independence of UK courts, she failed to mention the embarrassing recent refusal of the Home Secretary to give effect to a court order. So the EU27 side will still press for the ECJ’s involvement. Nor did she make any concessions as regards the substance of the law. 

On financial issues the Prime Minister said in effect that the UK would pay into EU funds to the end of the current EU budget cycle in 2020, during a transitional period after Brexit Day in March 2019 (see below). She also stated that the UK would honour commitments made during EU membership, although it is not clear if this is a reference to the broader issue of the UK’s share of costs in cases where the EU made a commitment in one year and paid for it in a later year. There are also other financial issues (off-budget funds, pensions, UK share of liability for loans that might not be paid).

More broadly, the Prime Minister supported the idea of a transitional period after Brexit Day of about two years, when the UK and EU would still trade on the same basis and apply the same security arrangements. The UK would still cease to be a formal EU Member State on Brexit Day – ceasing to participate in the EU’s political institutions – although some role for the ECJ seemed to be implicitly conceded. It should be noted that the EU27 side is also open to discussing a short transitional period as long as EU frameworks of enforcement, et al (including the ECJ) continue to apply. So there is broad agreement on the notion of a transitional period – subject to discussion of the details.

What about those details? Mrs May offered little about the substance, stating that EU27 citizens could still come to the UK during the transitional period but would have to register – as already permitted by the EU citizens’ Directive (see Article 8). Presumably the UK would have a customs union with the EU for the transitional period, although she said it would start to negotiate trade deals with non-EU countries. The transitional period could be terminated early on specific issues, for instance dispute settlement – an indication that the UK wants to end involvement with the ECJ as soon as possible.

Comments

Despite the attention paid to Mrs. May’s speech, the key question is whether the details of the UK’s negotiation position have changed. In particular, movement on those financial issues which were not expressly mentioned will be crucial determining whether talks move forward to trade issues in October. But the issue on enforcement of EU27 citizens’ rights will still remain a stumbling block, and the EU side will likely want to see some clarification of the UK’s proposals on customs and the Irish border.

The tone of the Prime Minister’s speech may help. It was civil, emphasising the importance of a future partnership between the UK and the EU, ruling out a rush to lower UK regulatory standards and with only brief mention of the discredited "no deal is better than a bad deal" mantra.

If the talks do move forward to transitional issues, this means there is no immediate need to discuss the technical questions of winding down UK/EU relations as of Brexit day, although they would still have to be discussed at some point if the UK and EU are going to change the substance of their relationship after that date. But this will mean that difficult issues of principle relating to the transitional period will have to be discussed.

What exactly is the transition period a bridge to? Which EU laws (if any) will no longer be applied? What if the transition time frame isn’t long enough? Would the UK be bound by new ECJ rulings during this period? Would it apply new EU legislation? Would the UK be consulted on it if it does? Would EU law apply in the same way as it does as an EU member? While the Prime Minister was anxious to rule out the ‘Norway model’ of EU/UK relations, the transitional period would nevertheless look somewhat like that model – except it appears that the UK would apply even more EU law than Norway does.

Overall, the Florence speech makes it somewhat more likely – but still far from certain – that there will be a conclusion to the Brexit talks, with no immediate ‘cliff edge’ for either side on Brexit Day. As always, the devil will be in the detail.

Barnard & Peers: chapter 27

Photo credit: The Telegraph

* *This blog post was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Cross-border civil litigation after Brexit: analysis of the UK government’s proposals

Professor Steve Peers

Imagine you’re a prominent UK politician. You spend most of your time ranting on a radio station in the UK or grovelling in the USA, occasionally showing up in France or Belgium to do your actual full-time job. You’re now getting a divorce from your German wife. Which court rules on matters concerning divorce and access to children – and which law applies?

This dispute would be part of the broader topic of cross-border civil litigation (or private international law), which is the subject of the UK government’s latest position paper on the Brexit talks. This paper gives some interesting hints about how the UK seeks a close relationship with the EU after Brexit, while also leaving some key issues rather vague.

First of all, it’s necessary to point out that the paper doesn’t concern the future of dispute settlement between the UK and the EU after Brexit. That’s the subject of another position paper coming very soon. Rather it concerns how cross-border disputes between private citizens or companies in the UK or EU will be dealt with after Brexit.

The paper usefully sets out which EU laws in this area the UK has currently opted into, in particular: the general rules on civil and commercial jurisdiction and conflict of laws; the special rules on insolvency disputes and divorce/child access, maintenance, and stalking orders; and related laws on simplified litigation, service of documents, legal aid, evidence, legal aid, mediation and the ‘European Judicial Network’ (a talking shop on the operation of these laws). (For an overview of these issues in the Brexit context see the recent House of Lords report).

Note that the UK has opted out of some other EU laws in this area, in particular those concerning marital property after divorce (and the property of civil partnerships which ended), inheritance and conflict of divorce law. (For an overview of EU law in this area as a whole, see the chapter in the second volume of my book on EU Justice and Home Affairs Law).

The paper is mainly about the future UK/EU relationship in this area, not withdrawal from the EU as such. But there's a bit on that issue at the end, in response to the EU’s position paper on the UK’s exit from the law in this area. Of course, the UK government is correct to say that there is no need for any such transition arrangements, to the extent that the UK still participates in the law in this field after Brexit. But then, the EU won't discuss any aspects of its future relationship with the UK until there is ‘sufficient progress’ on the key issues of the UK’s so-called ‘divorce bill’ and the status of UK and EU citizens. (If and when the EU and UK do agree on post-Brexit treaties in this area, note that the EU usually votes by a qualified majority, except as regards family law, where there is a veto. At least in key areas, the ECJ has ruled that Member State ratification of such treaties is not necessary, since the EU is exclusively competent).

There’s likely to be a need to bridge the gap between Brexit Day and any future agreement between the UK and the EU. This will probably take the form of some transitional extension of current EU law, as part of the Brexit withdrawal treaty. But the position paper doesn’t mention this issue at all – perhaps because the UK government has not fully agreed on the details, and perhaps because the EU side insists that the ECJ would still have jurisdiction during that period.

Future relationship

So what relationship does the UK government want with the EU in future? The papers calls for a ‘new partnership…reflecting our close existing relationship’, but does not detail which laws the UK wants to continue participating in.  One hopes that the government will at least tell the EU which laws it wants to continue applying. 

There’s one thing the UK government clearly doesn’t want though: the continued ‘direct’ jurisdiction of the ECJ. (The notion of ‘direct’ jurisdiction isn’t explained explicitly, but we can deduce what the government will accept – see further below).  The reader gets the distinct impression that the UK is happy to continue participating in all the EU laws it has signed up to already, except for removing the ECJ’s direct jurisdiction. It’s a bit like tearing down and rebuilding a house, in order to change one brick.

The paper doesn’t address an obvious question: what if an existing EU law is revised post Brexit? This point isn't hypothetical. There's a proposal to revise the current EU law on divorce and child access already. The UK has already opted in to negotiations. But negotiations are slow, and might not conclude before Brexit Day. Other laws in this field are negotiated over time. How to address this topic?

International treaties

The paper seems keen to reassure those who litigate in the UK (in particular, London) that the UK will still be ‘open for business’ in this field after Brexit. To that end, the government confirms that it will remain a party to a list of international treaties in the field (as distinct from EU law), drawn up in the auspices of an international body which focusses on cross-border civil litigation – the Hague Conference on Private International Law, including the important Hague Convention on child abduction. For most of these treaties, this will be simple, because the UK is a party to them in its own right, not as an EU Member State. For some others, the UK participates only as an EU Member State, although it ought to be an easy transition to participating in its own name: it can simply sign and ratify them on Brexit Day.

However, the UK also wants to stay part of the Lugano Convention - which extends an earlier version of the main EU law on civil and commercial jurisdiction to relations between the EU and EFTA states (Norway, Iceland, and Switzerland – along with EU Member State Denmark for convoluted reasons). This is another kettle of fish. According to that Convention, to sign up in its own name, the UK either has to become an EFTA state (which is a big issue in itself, since EFTA is a trade agreement) or wangle a special invitation to sign up. And as the government’s position paper acknowledges, it’s awkward that the Convention only relates to an earlier version of that EU law.

Signing up to the Lugano Convention also raises an issue about the ECJ. The Convention states that the courts of non-EU states must ‘pay due account’ to ECJ judgments. So we can deduce that the UK government does not believe that such an obligation violates its ‘red line’ against ‘direct jurisdiction’ of the ECJ. It might have been better to say this explicitly, and to propose it as a template for UK/EU relations in this field, given that the UK apparently wants to keep participation in other relevant EU laws as well. Indeed, it might also be a template for other areas where the UK seeks to continue participation in EU laws as a non-EU state. Perhaps the forthcoming paper on EU/UK dispute settlement will say more on this.

Furthermore, the ECJ clause in the Lugano Convention is similar (but not identical) to the ECJ clause in the EU Withdrawal Bill as proposed by the government – which says that pre-Brexit ECJ rulings stay binding (subject to the UK Supreme Court possibly overruling them, or the government or parliament overruling them), while post-Brexit ECJ may be taken into account by courts in the UK.

This may be enough of a compromise to satisfy hardline Brexiteers; we’ll see. It ought to be acceptable to the EU side, given that it’s been accepted in the context of relations with EFTA states for nearly thirty years (the first version of the Lugano Convention dates back to 1988). But then, the UK is asking for a closer relationship in this field of law than any other non-EU country. In any event, the areas of law where the EU insists on an ECJ role (citizens’ rights, the ‘divorce bill’, a transitional deal) will be more difficult to agree. Time will tell if talks eventually founder – either on those ECJ issues, or indeed on the bill itself.

Barnard & Peers: chapter 27

JHA4: chapter II:8

Photo credit: Metro

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