UK Vol.61 (Post-EUref Vol.7 – BREXIT AND BEYOND Vol.2)

Here are excerpts from BREXIT AND BEYOND – HOW THE UNITED KINGDOM MIGHT LEAVE THE EUROPEAN UNION (PDF; Nov 2016) | @UKandEU @PolStudiesAssoc.

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CHAPTER TWO: INVOKING ARTICLE 50 TEU
2.1 Who gets to decide (whether) to trigger Article 50 TEU?
…the Government’s position that it can, through notification, trigger Article 50 negotiations without parliamentary assent on the basis that treaty negotiations fall within the Crown prerogative. Beyond general constitutional law doctrines about the relationship between Parliament and the executive, much…rests on the outcomes of these challenges, which have been brought together in an action to be heard by the High Court in October, with a possible leapfrog to the Supreme Court in December. … Beyond Government reporting on what it thinks fit, significant involvement of Parliament will be confined, it would appear, to repealing the European Communities Act 1972, under the Government’s plan for a ‘Great Repeal Bill’.
… Triggering Article 50 does not in itself have an impact on the legislation which brings EU law into effect within the legal orders of the UK – the European Communities Act 1972. Nor does it necessarily follow that EU-derived rights currently available in this UK legislation will be removed by Brexit. …
… A slightly stronger argument is that even without legislation, exit will result in British citizens losing certain rights granted by the European Communities Act. These include the right to vote and stand for the European Parliament, to secure grants from EU institutions and to apply to work in EU institutions. This is true, but…
… Possibly most persuasive may be the arguments raised by litigants from Northern Ireland, where there was a majority vote to remain from 55.8% of the electorate. In the Northern Ireland case there is an additional set of constitutional concerns, specific to the island of Ireland, which may support the need not just for the UK Parliament’s approval, but also that of the Stormont Assembly. …

2.2 Article 50 TEU: Many negotiations or one?
…@instituteforgov…there will have to be at least two negotiations as Article 50 talks only of ‘arrangements surrounding withdrawal’. … Article 50 goes only to those matters which would, otherwise, lead to a legal limbo on exit, and separate negotiations will be needed, possibly in parallel, for the UK’s future arrangements with the EU on matters such as trade, security, protection of the environment and transport. …these can be rolled into one. …any Article 50 arrangement is required to take account of the UK’s future relationship within the EU, and this is simply not possible if any exit agreement is confined to legal limbo issues.
The scope of Article 50 negotiations will, therefore, be one of the first issues to be formally engaged with after the handing in of the Article 50 notification by the UK Government. …
… First, an Article 50 agreement only requires a qualified majority in the Council. Trade and security agreements of the sort sought by the UK outside the Article 50 framework will almost certainly require a unanimous vote. …
Second… Article 50 negotiations have to be concluded within two years, unless the unanimous agreement of the other Member States can be secured to extend the negotiations…. there is a likelihood that these could take longer than two years. …

2.3 The minimum Article 50 TEU items of negotiation
ACQUIRED RIGHTS:
The Vienna Convention on the Law of Treaties, which binds both the EU and the UK, requires that when a treaty is dissolved, any rights acquired by virtue of it and which now have an independent existence continue to be protected. … Property rights, contracts and pension rights…are almost certainly protected. Similarly, employment or transnational contracts for the supply of goods and services would almost certainly have to be honoured. There is a belief that those granted permanent residence in another EU Member State would retain that status. …
TRANSITIONAL REGIME:
…both the UK and the EU will want to make sure that they are legally protected as the courts will look at what a prudent trader could have anticipated. … These include receipt of EU funds, pending applications for EU authorisations for products and processes, and protection of existing contracts to supply goods or services into the UK from outside the EU.
SHARED LIABILITIES AND ENTITLEMENTS:
…who is responsible for existing liabilities and who receives unallocated funds for projects or actors in the UK. …
TRANSFER OF REGULATORY AND POLICING RESPONSIBILITIES:
EU institutions have regulatory and policing functions over the UK, whether this be in the form of Europol files, or Commission authorisations in fields as diverse as competition law, genetically modified food or pharmaceuticals. …

2.4 Parliamentary Consent(s) and a second referendum at the end of Article 50 negotiations?
A statute will be needed at the end of the Article 50 negotiations – agreement or not – if only to stop EU law generating new rights, obligations and responsibilities after secession by virtue of the European Communities Act 1972. …Great Repeal Bill …Sewel Convention provides that the Westminster Parliament will not normally legislate on devolved matters without the devolved parliaments’ consent, and does not amount to a blanket prohibition. …a further stimulus to a redefinition of the relations between the nations of the UK.
… The European Union Act 2011 …section 4(1)(i) of the Act …a referendum must be held if the new treaty confers any power on any EU institution to impose a requirement or obligation on the UK. …

2.5 Can the triggering of Article 50 be revoked?
…given that the process is likely to take an extended period of time, the situation…might well change, necessitating a breaking off of the process before it can be concluded. …changes in government, major economic shocks, major diplomatic shocks and military aggression. …
MUTUAL CONSENT:
… Hence if the UK were to indicate that it was changing its mind, then it should find a broadly positive response from the rEU. …the working assumption would be that the UK would continue as a Member State on the terms of the status quo ante. In particular, the deal concluded by David Cameron in spring 2016 would not come into effect, as the European Council has now agreed that this has lapsed: specific re-approval would be needed for it enter into force. …
UNILATERAL REVOCATION BY THE REU:
Under both Article 50 and customary international law, this is not an option. …
UNILATERAL REVOCATION BY THE UK:
…one where the UK decides to abort Article 50 without seeking the approval of the rEU. If this is possible, then it changes the balance of bargaining power within the Article… Instead of choosing between taking a deal that might contain much that is unfavourable and leaving with no deal at all, the UK might be able to terminate Article 50 and revert to the prior terms of membership. …
The 1969 Vienna Convention on the Law of Treaties offers some guidance on the matter. Articles 65-8 establish that a Member State is not only free to leave a treaty if it no longer wishes to be subject to it, but that until it finally leaves, it is also free to change its mind on the matter and retain its membership. …
… First, not all Member States of the EU are signatories to the Vienna Convention… the EU itself is not a signatory… However, the Vienna Convention itself is essentially a codification of customary international law…so a case would have to be made that the UK’s unilateral rights did not apply here. …
…no exit mechanism exists… Article 54 of the Vienna Convention states that once a Member State has made its notification to withdraw, it effectively cedes its rights to change its mind, especially since its initial decision will have been made in accordance with some domestic decision-making procedure – such as a referendum. …
…if the British Government revoked Article 50 in the face of a bad deal, and then shortly afterwards submitted a new Article 50 notification, in the hope of securing a better deal from the rEU with the clock reset. …highly politically damaging, with substantial reputational costs …use of both the EU treaties and the Vienna Convention… potentially lead to the United Nations playing a role in settling the dispute.