Brexit Basics 10: update 15th October

Another of our occasional updates of news and comment on Brexit.

On 10 October, the House of Lords Constitution Committee published a report calling for Parliamentary assent before Article 50 is triggered.

No such luck; on the same day in a statement to the Commons, Brexit Secretary David Davis told the House that triggering Article 50 was a Prerogative power and that there would be no need for Parliamentary approval:

  • he confirmed the Government will bring forward a “Great Repeal Bill” in the next Parliamentary session to repeal the 1972 European Communities Act and transpose existing EU law into domestic law where practical – effective on the day the UK leaves the EU;
  • he stated that, following repeal, Parliament would then consider changes to domestic legislation to reflect the outcome of negotiations and the UK’s exit and the UK would no longer be subject to ECJ jurisdiction;
  • he suggested too much Parliamentary oversight of the deal would be seen as an “attempt to hold up the process unduly”and “to keep Britain in the EU by the back door”;
  • he reiterated that the Government would not give a “running commentary” on its negotiating position but emphasises that it was taking a “consultative approach” in relation to business, Parliament and the devolved administrations, and that the Government would observe the constitutional and legal precedents that apply to any new treaty on a new relationship with the EU; and
  • he confirmed that the Prime Minister would trigger Article 50 no later than the end of March 2017.

At the same time, the Telegraph reported that Downing Street had said that giving Parliament a vote to second-guess the referendum decision was “not an acceptable way forward”. Later that day, a “Downing Street source” told the BBC’s assistant political editor, Norman Smith, that that did not necessarily rule out a parliamentary vote once “a final” deal is reached.

We may not have heard the last of this.

The UK Dimension

  • Bingham Centre for the Rule of Law: Parliament and the Rule of Law in the Context of Brexit: new Briefing Paper which “aims to inform the work of Parliament by setting out preliminary rule of law issues relating to Brexit. The Paper focuses on procedural rule of law questions concerning how Parliament can respect and safeguard the rule of law in the process of domestic and international law-making required to give effect to the outcome of the June referendum”. [29 September]
  • Iain Duncan Smith et alCentre for Social Justice: Road to Brexit: former cabinet minister Iain Duncan Smith has co-authored some guidelines for the UK’s impending negotiations with European leaders: not everyone is enthused. [1 October].
  • Mark ElliottPublic Law for EveryoneBrexit | On why, as a matter of law, triggering Article 50 does not require Parliament to legislate: an old post that happens to accord with our own view – for what that’s worth. [30 June]

  • Lord Norton of Louth: Repealing the Fixed-term Parliaments Act? This post considers issues associated with calling a snap General Election under the present Act and the complexities associated with repealing the Act and its necessary replacement with new legislation relating to General Elections. [8 October]
  • Jo Maugham QC: Waiting for GodotTheresa May’s mighty throw of the dice: “It moves the debate on … only from ‘Brexit means Brexit’ to ‘How Brexit means Brexit’. But it leaves unanswered the What: it tells us nothing about the shape our relationship with our European neighbours will come to take.” [4 October].
  • George Peretz QC, Monkton Chambers: The Great Repeal Bill: a giant Henry VIII clause? [3 October] “If the price of a quick Brexit is rushed and incoherent legislation, prepared with inadequate democratic scrutiny and giving rise to substantial costs to business, even many leavers will wonder if that is a price worth paying.” [3 October].
  • Matthew Scott, BarristerBloggerMr Grayling is wrong about the Brexit dividend to station platforms: “So almost everything Mr Grayling said about platforms seems to be wrong. Britain doesn’t have ‘European platform heights’ at the moment; in fact the EU itself doesn’t have standard European platform heights (it has lots of different ones), and although there are moves to introduce a measure of standardisation into European platform heights, they will not require Britain to change the heights of our existing or new platforms in any way. The whole thing appears to be a complete nonsense.” [3 October].

UK Parliament

  • House of Lords Constitution Committee: 4th Report of Session 2016–17: The invoking of Article 50: concludes that “The constitutional roles of each—the Executive and the Legislature—must be respected, beginning with parliamentary involvement and assent for the invoking of Article 50.” [10 October]
  • House of Lords, European Union Committee: Northern Ireland Secretary questioned on UK-Ireland relationship following Brexit. Despite the misleading title, this relates to a future evidence session on 11 October when the Committee will hear evidence from the Rt Hon James Brokenshire MP, Secretary of State for Northern Ireland and Robin Walker MP, Parliamentary Under-Secretary of State, Department for Exiting the European Union on: the impact of Brexit on Northern Ireland; Trading relationships between the Republic of Ireland and the UK; the impact on North-South relations and on the Irish land border; the impact on the peace process and the Good Friday Agreement; and police and security cooperation between the UK and the Republic of Ireland.

Legal action 

  • R (Hardy) v Prime Minister And First Lord Of The Treasury [CO/3527/2016]: the two-day hearing will start on 15 October.
  • R (Dos Santos and M) v Secretary of State for Exiting the European Union [CO/3809/2016 & CO/3281/2016]: was set down to be heard in the Divisional Court on 13 and 17 October: the People’s Challenge Interested Parties released its skeleton argument for the Article 50 TEU litigation and the Government’s skeleton argument in rebuttal is published here. The skeleton argument for Miller and Dos Santos is here. There is an uncorrected full transcript of the first day’s proceedings here and Robert Craig of the LSE has posted a helpful Report of Proceedings on the UK Constitutional Law Association blog.
  • Re an application by Raymond McCord for Judicial Review and Re an application by Steven Agnew and Ors for Judicial Review: the hearing took place on 4-5 October: part of the proceedings has been stayed because it overlaps with the proceedings at the High Court in London. Maguire J said that at some stage the court would probably reconvene to discuss the situation in relation to the stayed issues: see the report in the Belfast News Letter. The Government subsequently published its skeleton argument for both actions.

The Scottish, Welsh and Northern Irish dimensions

  • Alan Page, Centre on Constitutional Change: Brexit: the implications for the devolution settlement: “The implications of EU withdrawal for the devolution settlement are far-reaching – quite apart from the question of a second independence referendum.” [27 September]
  • First Minister Nicola Sturgeon, opening the SNP conference, said that she was determined that Scotland would be able to reconsider the question of independence – and to do so before the UK left the EU – if that were necessary to protect Scotland’s interests. She confirmed that an Independence Referendum Bill would be published next week. A consultation would be launched following publication and Ms Sturgeon would then decide whether or not to introduce it formally at Holyrood. She reiterated that if a new referendum were called it would take place before the UK formally broke its ties with the EU, currently expected early in 2019. Her predecessor, Alex Salmond, called for a new referendum even if the opinion polls were level. [13 October]

Earlier posts on Brexit

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  1. Pingback: Law and religion round-up – 16th October | Law & Religion UK

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