Brexit Briefing - December 2018

Blondin crossing Niagara Falls

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First Publication1863
Source Wikipedia

Jane Lambert

As I have repeated many times in this blog, art 50 (3) of the Treaty on European Union provides:

"The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

The notification to which this paragraph refers is dated 29 March 2017.  Unless Her Majesty's government enters a "withdrawal agreement" within the meaning of art 50 (3) or revokes the notification before 23:00 on 29 March 2019 the laws that govern the United Kingdom's relationship with 27 of its closest neighbours, trading partners and allies will simply fall away. 

Although there are some who regard that prospect with equanimity there are many others who do not. As this is a legal and not a political blog, I will not enter the argument as to whether leaving the EU without a deal would be a good thing or a bad thing beyond observing that it would be expensive and inconvenient for many businesses and individuals which could have serious, adverse economic consequences for the whole country.

There are two ways of avoiding that eventuality.  One would be to enter the draft withdrawal agreement of 14 Nov 2018 that was approved by the governments of the remaining member states on 25 Nov 2018.  That is a "withdrawal agreement" within the meaning of art 50 (3) and it is probably as good an agreement as any British government could possibly get given the disparity in negotiating power between one member state and 27 others.  The other way would be to withdraw the notification which the Court of Justice of the European Union held to be possible in its judgment in Case C‑621/18, Wightman and others v Department for Exiting the European Union ECLI:EU:C:2018:999, EU:C:2018:999, [2018] 3 WLR 1965, [2018] WLR(D) 747, [2018] EUECJ C-621/18 which I discussed in my case note of 11 Dec 2018.

Both courses of action would require parliamentary approval.  The Prime Minister has already abandoned one attempt to secure such approval for the withdrawal agreement and has rescheduled another for this month.  As there is little evidence of a change of heart since her last attempt, it is possible that she may delay the attempt again in the hope that resistance to the draft withdrawal agreement will crumble the closer we come to the 29 March 2019.  The Prime Minister has already proved her skills as a tactician in the way that she routed her opponents in the parliamentary party by holding a confidence vote before they had time to organize. Whether delaying a vote on the withdrawal agreement until the last possible moment will work remains to be seen but, at present, it seems unlikely.

The revocation of the notification of 17 March 2017 is even less likely.   Ir would lead to howls of protest in sections of the press and Conservative Party.  Parliament would be accused of defying "the will of the people" though it has done precisely that in very similar circumstances as I explained in The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? 17 Dec 2018. As I added in Sometimes it is a Good Thing to ignore Referendums 19 Dec 2018, that decision turned out to be the right thing to do.  The Court of Justice made clear that any revocation of a notification under art 50 (2) would have to be in good faith.  The British government could not do it with the intention of issuing a new notification simply for internal political reasons.  It would also have to be prepared to hold elections for the European Parliament in May 2019.

The possibility of the UK's leaving without a withdrawal agreement is, to say the least, a strong possibility for which both the UK and the EU have been preparing.  I discussed those preparations in No Deal Preparations on Each Side of the Channel 20 Dec 2018.  In leaving the EU the UK will also leave the European Economic Area which will require a new relationship with the member states of the European Free Trade Association.  Agreements have been made with Iceland, Liechtenstein and Norway on a variety of issues and with Switzerland on expatriates' right which I covered in Future Relationship Agreements with the EFTA States 3 Jan 2019.  The agreement with Iceland, Liechtenstein and Norway contained provisions on geographical indications, database rights and exhaustion of rights  which I addressed in The IP Provisions of the Future Relationship Agreement with Iceland, Liechtenstein and Norway 4 Jan 2019,

Anyone wishing to discuss this article or the legal consequences of Brexit on their lives and businesses should call me on +44 (0)20 7404 5252 during office house or send me a message through my contact page,

Sometimes it is a Good Thing to ignore Referendums

Jane Lambert

The Prime Minister's response to growing calls in her party and the nation for a "Peoples' Vote" or second referendum is that it would somehow "break faith with the British people" (see Brexit: May to urge MPs not to 'break faith' by demanding people's vote 17 Dec 2018 The Guardian).  In my article The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? (17 Dec 2018 NIPC Brexit) I wrote that a select committee of 3 peers and 3 MPs recommended that Parliament should not even consider the result of a referendum in which almost all eligible voters had participated and where the majority was 66% as opposed to a rather paltry a 51.9% plurality.

The issue that was the subject of the referendum was whether the state of Western Australia (with a land area of just over 1 million square miles or just over a third of the territory of Australia) should secede from the federation and become a separate nation.  The reason why that question came before the British Parliament is that the Australian constitution was a British statute that made no provision for secession.  The only way that the result of the referendum could be implemented was by an Act of the United Kingdom Parliament.  Parliament set up the select committee to consider arguments from both the state and federal governments.  The history of those events is discussed by Mr Tom Musgrave of the University of Wollongong in an excellent article entitled The Western Australian  Secessionist Movement which was published at page 95 of the Macquarie Law Journal (2003) Vol 3. Copies of Mr Musgrave's article may be downloaded from the Macquarie Law Journal website.

The parallels between the Western Australian secession referendum and the UK's Brexit referendum are striking.  Identity and sovereignty were important issues in both referendums.  Western Australia had enjoyed considerable autonomy under the Colonial Laws Validity Act 1865  (c. 63 28_and_29_Vict) and many of its inhabitants were reluctant to give up that autonomy to join states many hundreds of miles to the east in a continent-wide federation. Similarly, a large section of the British public had always been opposed to an ever closer union.  For a while, participation in the Australian federation brought many economic benefits just as British membership of the European Union did in the United Kingdom.  Those benefits came to an end for many in Western Australia with the Great Depression just as they did for many in the UK with the 2008 recession. A single-issue political movement known as the Dominion League campaigned for a secession referendum just as UKIP did in the UK.  In Western Australia as in the UK, much of the press was vociferous in its support for those referendums and the outcomes of those who campaigned for them.

In my earlier article, I noted that the arguments for and against independence were almost exactly the same as in the Brexit debate.  Essentially whether the will of the overwhelming majority of the Western Australian electorate trumped parliamentary sovereignty as expounded by Burke and Dicey.  In 1935 the doctrines of Burke and Dicey won and it was probably just as well that they did because Austraila found itself at war with Japan in 1941.  Enemy forces bombarded Darwin in February 1942 and were on the point of launching an invasion.  Happily, Australian forces supported by their American and other allies gallantly resisted that challenge but that may not have happened had Australia fragmented into separate nations.  The population of Western Australia was under a million in the early 1940s. There might well have been antagonism between the successor states which would have obstructed a military alliance.  Had Australia or just Western Australia fallen to the enemy the course of the Second World War might have been very different.

Returning to the present, neither Mrs May nor anyone else has explained persuasively why Parliament should not exercise its independent judgment on whether Brexit is or is not a good thing rather than give effect to the will of a narrow plurality.  Losing faith in democracy is one argument and even civil disorder along the lines of the vestes jaunes protest in France has been forecast.  Exactly the same was said in 1935 but nothing like that happened in the end.  Economic conditions improved and calls for independence abated.

There is no reason to suppose the same would not happen if Parliament called a second referendum or simply repeated the European Referendum Act 2015.  As this is a legal blog and not a political one I do not argue that Parliament should do either of those things.  At the same time, nothing has happened since 1935 that leads me to doubt that, if Parliament wished to do so, it could.

Anyone wishing to discuss this or my previous article is welcome to call me on 020 7404 5252 or send me a message through my contact page.