This article presents the political context of the current Brexit debacle and addresses the complex legal questions covering many Brexit eventualities.
The political aspect
On 12th December 2018 Theresa May faced a vote of no-confidence from her fellow Conservative Members of Parliament (MPs). She won by 200 to 117 votes, consequently retaining her premiership. However, the fact that more than a third of Conservative MPs voted against her is regarded by Brexiteers as a clear sign that the deal she struck with the EU is deeply unpopular within the UK’s governing party. One key reason why May survived was her pledge to resign before the next general election in 2022. With this promise she hoped to reassure MPs who feared that she would become an electoral drawback, but at the same time she risks damaging her own fragile authority. As a matter of fact, talks between the main opposition force, the Labour Party, and the Democratic Unionist Party, are currently taking place in order to trigger a no-confidence motion in the House of Commons against the Government, which if enacted would further weaken May’s position as it would have the support of the hardline Tory Brexiteers who are against her. This case drew comparisons with the 1990 Conservative leadership contest in which the then British premier Margaret Thatcher was running for re-election. She won the first round by 204 to 152 votes, but party rules stated that the winner had to be at least 15 percent ahead of his/her opponent. Later, Thatcher was persuaded by her cabinet not to proceed with the second round because it was felt that she could not succeed. Therefore the Iron Lady resigned as party leader and Prime Minister before being replaced by John Major, who triumphed in the second leadership ballot. Coincidentally this contest began partially because of Europe as Thatcher’s finance and foreign minister Sir Geoffrey Howe, who believed strongly in European unity, resigned after she rejected further integration at a summit earlier that year.
May travelled to Brussels the day after the no-confidence vote in order to gain legal assurances on the Irish backstop from EU leaders. Unfortunately for her, they just reiterated that the deal was not up for renegotiation, but simultaneously they doubted her ability to get it through Parliament. The European Commission President Jean-Claude Juncker urged the UK to establish more clearly what it wants and declared that the Commission would soon publish information on its preparations for a no-deal/hard Brexit. In contrast, Austrian chancellor Sebastian Kurz, whose country currently holds the EU presidency, suggested that there could be a Brexit summit in January 2019 to agree on “additional assurances”. Meanwhile, Downing Street has confirmed that a Parliamentary vote on May’s deal will also take place at the start of the New Year.  This is the point at which matters will become complicated for Britain.
What is certain is that May does not have the full backing of neither her own party or even the opposition to ensure that the deal passes through the House of Commons. So we can conclude that it is highly unlikely that it will be ratified, thus making her even more vulnerable. It is more than probable that May would not survive a vote of no-confidence in her Government if it is triggered by Labour and the opposition parties, meaning that she would have to step down. At this point there will be several options for the House of Commons to undertake: a leadership contest within the Conservative Party; the formation of a Labour minority Government; a general election; a second referendum; leave the EU with no deal (i.e. a hard Brexit); or unilaterally revoke Article 50.
If May resigns as prime minister the Tories would be under intense pressure to find a new leader for the country. David Lidlington, the current cabinet office minister and May’s second-in-command, could take the reins of the country temporarily, but it would not be a long-term solution. A leadership competition could occur within the Conservative Party. The only advantage of this undertaking is that it would take less time than a general election or a second referendum, but whoever wins would have to face the same challenges as her predecessor and would require the backing of a majority of MPs and rank-and-file members. All this would happen within fourteen days, which is the time allowed under the Fixed Term Parliament Act for a Government to form a new administration if it loses a vote of confidence. If the Tories are unsuccessful then a general election will have to be held.
The Labour Party has been presenting itself as a force ready to lead a minority Government in case May gives her notice. While they are right to say that theoretically a UK prime minister can be nominated even without an election, it is not a given that Labour leader Jeremy Corbyn could take May’s place since the present circumstances would still favour a Conservative successor. Therefore Britain’s main opposition party has a higher chance of taking charge only after a popular vote. If, indeed, a general election is held it would require the extension of the Article 50 deadline (29th March 2019) and whoever gains power afterwards would still have to reach a compromise with the EU.
The idea of holding a second referendum, or People’s Vote, as it has been referred to, is gaining traction lately. In early December 2018 a survey was conducted showing that 62 percent of the UK population wants a final say on the Brexit deal. Another poll concluded that there has been a decrease in support for Brexit and an increase in attitudes favouring EU membership. The campaign for a People’s Vote has been publicly backed by 53 MPs from the Conservative, Labour, Liberal Democrat, Green and Scottish and Welsh nationalist parties. May is completely against it, while Labour’s position is to keep “all options on the table” meaning that it could support a second plebiscite if there is no other feasible way out of the Brexit crisis. At the time of writing it has been reported that a number of May’s cabinet ministers consider the withdrawal agreement to be dead and are reluctantly considering the prospect of a People’s Vote. Although it might seem like a justified course of action, there are some undeniable problems that go with it. Critics argue that having another referendum would divide the British public even more than the one held in 2016. Moreover, they claim that it would be an affront to democracy if the results of a second vote overturned the outcome of the previous referendum as it would make many people (especially hardline Brexiteers) lose faith in the idea that using the ballot box can make a change. This in turn could foster social unrest which would embolden far-right and populist forces. If enacted, it would be reminiscent of when Ireland held two referendums on the Lisbon Treaty in 2008 and 2009. In the first vote the Irish people rejected the Treaty. Outraged, the EU establishment persuaded Ireland’s Government to have a rerun which ended up reversing the previous result. Furthermore, even if a People’s Vote gained Parliamentary approval it would mean that the Article 50 deadline would still have to be extended.
At the beginning of December 2018, May stated that British lawmakers faced three choices: accept the deal she struck with the EU, leave with no deal or cancel Brexit altogether. The chances of a hard Brexit are slim since the majority of MPs (both in the Government and in the opposition) are against it. Many economists and businessmen are also not in favour of a no deal scenario since they claim that it would be catastrophic for the country’s economy. In addition, the House of Commons has recently ratified a motion allowing MPs to decide on the next steps if May’s deal is rejected, thus damaging her authority even more. Although the European Court of Justice (ECJ) has declared that Britain could revoke Article 50 unilaterally, the UK prime minister has already dismissed the idea. If this option is carried out it would be just as divisive as a second referendum and it would make hardline Brexiteers believe that out-of-touch politicians have capitulated to the ‘elitist’ EU.
As we have explained, in the likely case that May’s deal gets turned down by the House of Commons there is a variety of pathways to follow, each with their own pros and cons. However there is another approach that could be a solution to the Brexit conundrum. And that is for the UK Government to push for a Norway-style deal. This idea is backed by several MPs and there is a growing feeling that it would be approved by a Parliamentary majority. A research study demonstrated that an increasing number of British voters would like their Government to negotiate a soft Brexit, along the lines of Norway’s relationship with the EU. When it came to a new referendum, participants responded that they would support continued EU membership over a customs union or no-deal Brexit, but would prefer the Norwegian model over Remain if given the choice. This proves that more and more people regard close ties between Britain and the EU positively. The question you might be asking is: what would a Norway-style deal entail?
Essentially, a Norway-style Brexit would mean leaving the EU, staying in the European Economic Area (EEA) and single market, and re-joining the European Free Trade Association (EFTA), an interGovernmental organisation comprising Norway, Iceland, Liechtenstein and Switzerland who trade with each other and sign trade deals with other countries. The UK used to be part of this group until 1973. Membership of the EEA and EFTA, as well as access to the single market means that there will be less obstacles to UK-EU trade and continued single market treatment for services, which account for roughly 80 percent of the British economy. Moreover, the United Kingdom will not be forced to agree to some of the EU’s most controversial policies, such as the Common Fisheries Policy and the Common Agricultural Policy and it would no longer be under the jurisdiction of the ECJ. Furthermore, most studies (including a recent Government impact assessment) have concluded that the Norway option would be the least damaging in terms of economic harm. As a matter of fact if Britain remained in the EEA then it would not have to pay a £40 billion withdrawal bill.
People have mentioned the disadvantages of this direction, including the fact that Britain would still have to accept the freedom of movement of people and that it would still have to abide by EU regulations without having a say. However, as George Trefgarne explained, these flaws are “mythical”. While it is true that the freedom of movement of labourers is part of the EEA Treaty there are two opt-outs. Firstly, Article 112 allows members to restrict immigration in order to address “societal or environmental difficulties of a sectorial or regional nature” which is what Liechtenstein has done since 1997. Secondly, Article 28 states that freedom of movement can be “subject to limitations justified on grounds of public policy, public security or public health”. One of the other myths used to discredit the Norway option is that the UK would still have to pay into the EU budget and abide by its regulations. Trefgarne wrote that in reality the EEA does not pay fees to the EU, but EEA members agree to give monetary contributions to voluntarily participate in certain EU agencies and programmes. Also, single market rules make up only 28 percent of EU laws and, under the EEA agreement, EFTA members have the right to be consulted on single market legislation. For instance, Article 102 permits members to veto rules they disagree with. One example is when Norway forbade EU-licensed vessels to fish for snow crabs in its waters. The EU asked the EFTA to take action, but it refused to do so, meaning that it recognised Norway’s veto power. Other notable criticisms of this model are that the UK won’t be able to negotiate its own trade deals and that the EFTA court obeys the ECJ. However, as pointed out above, the EFTA members sign free-trade deals with other countries. They currently have 27 agreements with 43 other states, but they can negotiate bilateral agreements too, as Switzerland has done with China and Japan. When it comes to the EFTA court, it does work together with the ECJ to create a unified procedure, albeit being autonomous. Its former president Dr Carl Baudenbacher highlighted that it is not bound to the ECJ and cited eleven cases in which the EFTA court deviated from its counterpart.
Perhaps the strongest case for a Norway-style Brexit is that it would solve the problem of the Irish border. By respecting single market rules, Britain would avoid an excess of non-tariff barriers that would otherwise emerge on the frontier between Northern Ireland and the Irish Republic. Former Conservative minister Nick Boles has championed a ‘Norway-plus’ as an alternative Brexit plan if May’s deal gets rejected by Parliament. The ‘plus’ would be a temporary customs union with the EU which would be negotiated to ensure that there is no hard border in Ireland. This temporary arrangement would be kept until the UK and the EU signed a specific trade deal. However, as appealing as a Norway-style deal may look, it has already been ruled out by Theresa May who suggested that she would not offer it as a compromise to reach a Parliamentary consensus, since it would mean the continuance of freedom of movement of people. Even the main opposition leader Jeremy Corbyn has refused to endorse the Norwegian model because, in his view, it would turn Britain into a “rule taker” without any influence at EU level. His ideal Brexit agreement would include a “comprehensive customs union with the EU, with a British say in future trade deals”, “a new and strong relationship with the single market” that allows “frictionless trade”, a migration policy that meets “the needs of the economy”, “an open border in Ireland” and “guarantees that existing EU rights at work, environmental standards and consumer protections will become a benchmark to build upon”.
Another obstacle for any possible Norway-style deal is the EFTA members themselves. If Britain attempts to re-join the EFTA, its membership request would have be to considered by the EFTA Council, where decisions are taken by consensus. It is not possible to tell exactly what their conclusion will be as EFTA needs to examine all options to protect the interests of its member states. Not long ago, senior Norwegian politicians and business figures spurned the idea of a ‘Norway-plus’ agreement, claiming that it would not be in Britain’s nor in their country’s interest. This has been a blow to a British parliamentary cross-party group which supports this model. Erna Solberg, the Norwegian prime minister, on the other hand has been more diplomatic saying that Norway would examine a UK application. Nonetheless, Heidi Nordby Lunde, a Norwegian Parliamentary deputy belonging to the governing Conservative Party and leader of her country’s European movement, who is opposed to Britain joining the EFTA, explained that her opinion reflected that of her Government. Ole Erik Almlid, of the Confederation of Norwegian Enterprise business association, reiterated Lunde’s viewpoint by questioning whether Britain would be willing to be a rule taker instead of a rule maker. He remarked that Norway would suffer and that sections of the EFTA agreement would have to be suspended if an EFTA member such as the UK refused to follow the obligations within the treaty.
One option that is not currently on the table but could probably be an even better solution than the Norwegian model is a ‘Ukraine-plus’ deal. According to the research carried out by Ursula F. Ott and Pervez N. Ghauri, two professors of International Business, the style of Ukraine’s relationship with the EU is one that satisfies Theresa May’s objectives. Therefore a ‘Ukraine-plus’ agreement is viable as it would entail: access to the EU single market; the ability to strike trade deals with other states; an end to EU law being applied in the UK; cessation of the freedom of movement of people; cooperation with the EU on security and defence matters; and no ECJ oversight. Although Ukrainian workers cannot move freely, there is visa-free travel between Ukraine and most EU member states, meaning that Ukraine’s citizens can travel for a maximum of 90 days in a 180-day period for tourism, business reasons or visiting friends and relatives abroad. Something similar could help Britain gain full control of its borders, which was a key issue in the Brexit debates. As Ott and Ghauri explained, a ‘Ukraine-plus’ option would be the ideal treaty that May should negotiate with the EU as it could achieve most of her goals and appeal to the different factions within the Conservative Party.
The legal viewpoint
From November to present day, recent developments on Brexit, since the Withdrawal Agreement was agreed jointly by the European Council and the Government of the United Kingdom, have taken place and sparked several concerns. Below, we will undertake a concise analysis based on two aspects, namely; Parliamentary sovereignty (including the question of the 2016 referendum and its implications), and the primacy of EU law (referring to, likewise, international law obligations bound by treaties).
Parliamentary sovereignty and the legal effects produced by the 2016 referendum
Q: What legislation governs a referendum in the United Kingdom?
A: According to the Political Parties, Elections and Referendums Act (PPERA) 2000, referendum “means a referendum or other poll held, in pursuance of any provision made by or under an Act of Parliament, on one or more questions specified in or in accordance with any such provision”. In addition, the Code of Good Practices on Referendums 2007, elaborated by the Venice Commission of the Council of Europe, provides that referendums “must comply with the legal system as a whole, and especially the procedural rules”. Based on the previous definitions and legislative official provisions, a referendum underscores four main elements to be considered as valid: (a) it must comprise an objective mean to cast people’s opinion (eg. through votes), (b) it shall respond to a specific objective established in an Act of Parliament, (c) needs to contain a question aligned with the objective determined in the Act of Parliament that invokes the referendum, and (d) it cannot be contrary to constitutional or statutory laws.
Q: Was the 2016 referendum held legally binding?
A: If we consider the four elements explained above, (a) it is clear the contested referendum included an objective mean to cast people’s votes. Likewise, (b) it seeked to cast the people’s opinion on “whether the United Kingdom should remain a member of the European Union”. Besides, (c) the language of the question determined for the 2016 referendum is undoubtedly aligned with the objective of the referendum proposed . Finally, (d) the 2016 referendum was not contrary to any constitutional or statutory law, as the Act of Parliament that approved it, was discussed and not legally contested nor challenged by any third party or Member of the Parliament.
However, the nature of the ‘legally binding’ aspect alludes more to the effects produced by the results of the referendum. Therefore, we will briefly discuss whether the results legitimised the Government to trigger Article 50 TEU and initiate Brexit. Reading the wording of the EURA 2015 again, it certifies that no provisions are given for the interpretation and/or implementation of the referendum result on whether confirming or renouncing to EU membership. A situation confirmed by the Supreme Court of the United Kingdom, that acknowledges the “referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation”. Based on this argument, a referendum would only produce a legally binding result, whenever the Act or statute that regulates it, provides the effects either outcome would produce on existing legislation. Therefore, in this specific case, it concerns directly to the UK membership to the EU, which also refers to the question of EU citizenship and the numerous and exhaustive rights it comprises.
As a result, a referendum shall only be considered as legally binding in its outcome, whenever it contemplates that possibility in the form of a clear and concise provision stipulated in the text of the Act of Parliament authorizing it. In this specific case, the Supreme Court dealt with challenging the power the Government claimed it was given by the people’s vote in the referendum to “allow [them] to withdraw the United Kingdom from the European Union without legislation”. Likewise, it is relevant to understand the difference between the content of the law and the intention behind the drafters of a law whilst interpreting its essence. While the former refers to an understanding of the meaning of the written provision in a certain law or statute, the latter draws its attention to the intention pursued by the Member of Parliament or Minister responsible for drafting that legal document. Consequently, it is not necessary for content to be an equivalent to what the Ministers or MPs responsible for drafting the Bill (that will later become a statute or Act) were pursuing or seeking to achieve after enacting and implementing it. As such, due to the absence of clear and specific provisions in the statute about the effects of that 2016 referendum it is clear, therefore, it did not materialise the effect desired by its sponsors.
In conclusion, we may affirm the 2016 referendum was politically, but not legally binding. The former, if we consider how the Parliament relied heavily on the outcome to decide granting the power to the Government to trigger Article 50 TEU. Finally, the latter, due to the lack of clear provisions in the statute about the effects it should have produced in UK legislation.
Q: What is Parliamentary sovereignty and what implications does it represent to the outcome of Brexit?
A: Departing from the Miller (UKSC 5) case, the Supreme Court underscores a written response from the Government to a House of Lords Select Committee Report. Therein, the court outlined a recommendation that comprised three key elements: 1) sovereignty of Parliament, 2) referendums are not legally binding in the UK, 3) not being legally binding does not exclude Parliament discretion to rely heavily on people’s opinion on certain matters. Despite being a favourable response, it goes further by affirming “Parliament must be responsible for deciding whether or not to take action in response to a referendum result”. An important precedent that demonstrates in practice that Parliament, regardless of its sovereign power to decide on matters affecting the UK in its entirety, cannot as easily as any other action dismiss the will and opinion from the people.
Basically, in contrast to many of contemporary European democracies, Parliament enjoys a supreme power, as conceived by John Locke, due to its competence to dictate and make laws within a specific territory. This responsibility encompasses the duty of the holder of the Executive power to enact laws or acts after receiving the consent from the legislative body (the Parliament), as it only governs under an oath to the law which, if violated, undermines its legitimacy to rule the territory. These considerations do reflect the nature of this peculiar system of Government that, to some extent, might contribute to reaffirm the will of the people in opposition to the interests of the Executive power based on objective evidence of that opinion, such as the one a referendum offers.
Having contested the nature of the legally binding referendum in the UK, we may now analyse and examine whether the Government’s prerogative power or Parliament’s ‘parliamentary sovereignty’ prevails in the matter of affairs connected directly to Brexit. The Supreme Court refers back to the membership process of the United Kingdom into the European Economic Community (nowadays, the European Union) in 1972, in order to respond to this question. Herein lies the relevance of the legal process that followed the integration of the UK into the European Community, noting with great attention the powers used and implemented to achieve that objective. On this question, the Court affirmed that “Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties”. By strongly vindicating the power the Parliament holds, the Court recognizes it “involves a unilateral action by the relevant constitutional bodies which effects a fundamental change in the constitutional arrangements of the United Kingdom”. In other words, if Parliament’s legally binding decision translated into the Government notification that transmitted the UK will to join and enter the European Communities, after the favourable outcome of the 1972 referendum, then, it is uncontested that any decision irreversibly affecting the constitutional structure and powers of the State can only be valid if the Parliament agrees on that. For this reason, following the procedures of its admission, a withdrawal, that is a unilateral act, can only be achieved if the same institutional body that endorsed the decision to join the international organisation it is now seeking to leave, gives its consent for the Government to execute that provision authorizing the withdrawal.
Based on the reasons presented above, we may claim that Parliamentary sovereignty prevails over the Government’s prerogative powers on whether deciding to continue to pursue Brexit or unilaterally revoking the notification that expressed the intention to withdraw from the EU. One certain criteria reaffirmed in the content of the European Union (Withdrawal) Act 2018 (see Section 13), now in force, regulates the development of Brexit and entitles the Parliament to reject or approve an Agreement, in accordance with Article 50 TEU. With this Act, and the jurisprudence cited above, the Government cannot unilaterally enact any power concerning the continuity or not of Brexit if not endorsed by a Parliament (House of Commons) binding decision (eg. a statute). In addition, the recent ECJ ruling on the revocation of the notification of the withdrawal, as laid down in Article 50 TEU, acknowledges that a wish to remain must be “expressed through its democratic process in accordance with its constitutional requirements”. Respecting that criteria outlined by the Court, and following the UK constitutional doctrine, referendums should only be legally binding, if direct legal effects are provided in the act that implements them. How it is possible to achieve that? This relies heavily on the Parliament power to materialise its sovereignty by deciding accordingly, to the last extent, on the public opinion, in a binding rather than in a consultative referendum as the one held in 2016.
Primacy of EU law and the obligations bound by treaties in international law
Q: Does EU law prevail over UK national laws?
A: To question whether EU law prevails over a Member State national law, means contesting the maxim “ex factis oritur jus”, that means the law arises from the facts. This is an approach justified with the creation of an international organisation (the European Union, formerly known as the European Economic Community), which is autonomous and empowered to fulfil its mandate through the “limitation of sovereignty or a transfer of powers from the states”.
However, any international organisation, regardless of its peculiar conditions, can invoke the prevalence of its decisions over the already established legal order of its own Member States? To answer it, we should examine the EEC Founding Treaty (EEC Treaty), that “created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States”. Clearly, the founding States of the Community had to make reasonable concessions on sovereignty to ensure that new organisation would achieve the goals and comply with the duties established under the Treaty. Hence, this decision responded to the States’ own will to limit their powers for the sake of the Community to fulfil its responsibilities on behalf of its Members as a whole.
In addition, having discussed the question, in principle, about the prevalence of EU law over national law, we may refer to the question of a State, like the United Kingdom, that was not a Founding Member, rather a Member that was granted admission after a referendum and negotiations took place in 1972. Having not been a Founding Member, the United Kingdom signed and ratified jointly with the Community Members a Treaty of Accession to integrate as a Member, where it transferred “to the Community legal system of the rights and obligations arising under the Treaty”. Thus, the rights and obligations transferred did not originate from the founding Treaty that constituted the Community, as the United Kingdom did neither sign nor ratify directly the 1957 EEC Treaty, but from the 1972 Treaty of Accession, with its Protocols and Annexes, based on the negotiations held for its admission. Furthermore, it might be questioned whether the limitation of sovereignty is subject to the conditions provided in the EEC Treaty. Nevertheless, as the Act of Accession (an integral independent part per each State comprised in the Treaty of Accession) is part of the EU primary law, the entirety of its content (including its protocols and annexes) do also constitute “provisions of primary law, unless that act provides otherwise”. Accordingly, regardless of its type of membership (founding member or accesitary member), the 1972 Act of Accession, its Protocols and Annexes, are binding and applicable for the United Kingdom in an equal manner as the EEC Treaty is for the Members who signed and ratified it in 1957.
Furthermore, to clarify the procedures needed for EU laws and its legally binding instruments to directly impact UK legislation, we must refer to the European Communities Act 1972. How do all EU laws and compulsory texts have binding effect within the territory of the United Kingdom? The Act “authorises a dynamic process by which… EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes”. In other words, the statute contributes to constitutionally ensure a safe mean to implement EU legislation in the UK legal order, rather than limiting or conditioning its applicability according to the competences attributed to the EU. Moreover, we may underscore that “EU Treaties themselves are directly applicable”, a premise that, connected to Article 50 TEU, demonstrates EU laws, as “independen