Two major developments occurred in the ongoing saga of Brexit in the last week.

The UK Government gave the European Union formal notice of its intention to leave the EU under Article 50 of the Lisbon Treaty. It also set out how it hopes to disentangle UK law from EU law on Brexit, which in fact principally involves duplicating the laws on a domestic level.

The road to Article 50

It has been a long road to an Article 50 notification for the Government, with some unwelcome diversions.  Having initially claimed it had the ability to trigger Article 50 without Parliamentary approval, the Government lost both in the High Court and on appeal to the Supreme Court, essentially because the notification would result in a change to the constitution of the UK and the loss of rights by UK citizens.

The Government produced a very short bill authorising the Prime Minister to “notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU”.  Parliament neither blocked the Bill nor secured a single amendment which might constrain the Government in its negotiations.

The European Union (Notification of Withdrawal) Act 2017 received Royal Assent on 16 March 2017.

The letter

The notification letter delivered on 29 March 2017 needed to say very little, but in fact went on for six pages.  It outlined some of the principles on which the Government intended to negotiate, which had been previously announced, including that the UK did not wish to be part of the Single Market.

This apparent “hard Brexit” stance remains a controversial issue, as it may have serious consequences for the UK economy and rights of its citizens, even though the nature of Britain’s future relationship with the EU was not the subject of the referendum and nor was it set out in the Government’s manifesto at the last election.

The stance set out in the letter is essentially political.  Its legal relevance is that it started both the formal process of negotiations and the clock running on Brexit.  Unless agreed otherwise, the UK will cease to be a member state of the European Union at midnight on 29 March 2019.

The Great Repeal Bill

The Government also expanded on its plans to deal with the problem of disentangling the UK legal system from EU law after Brexit.  A White Paper was published, but a draft Bill was not, suggesting that the reported difficulties in drafting the Bill were not exaggerated.

The discussion paper does set out some proposals for what the Great Repeal Bill should contain, but leaves some details to be discussed.

• The Bill will convert all EU law as it applies in the UK into domestic law on the day the UK leaves the EU. This is intended to ensure “a smooth and orderly exit”.
• Due to the amount of EU law which is currently applicable in the UK (through directly-applicable regulations, directives legislated for at a domestic level and case law), it would not be possible to make all of the necessary amends through primary legislation.
• Secondary legislation will deal with those aspects of EU-based UK law which plainly don’t work post-Brexit, including references to EU law, the involvement of EU institutions or information-sharing with EU institutions. These changes should be in place before the UK leaves the EU on 29 March 2019.
• The paper assures that policy changes will not be made through such delegated powers, although in practice what constitutes a change in policy and what does not may be difficult to determine. The paper recognises the inherent conflict between the need for scrutiny on one hand and the size of the task and the limited timeframe in which to complete the project.
• The EU Charter of Fundamental Rights will cease to apply upon Brexit, but the Government notes that many of the underlying rights are already protected under UK law or in other laws such as the specific EU laws being incorporated upon exit.
• Historic Court of Justice of the European Union (CJEU) decisions will still form part of UK law after Brexit, whilst future CJEU decisions will have no effect. However, CJEU case law will have the same status as Supreme Court decisions, rather than being superior to it.  This will allow the Supreme Court to come to a different decision in those limited circumstances and on the same principles that it overrules its own previous decisions. In reality, judges will be aware of ongoing CJEU decisions and it will influence UK judgments, whether or not they are bound to follow them.

WAB Comment

When the momentous referendum decision of 23 June 2016 became clear the following morning, many noted that the Government had no plan for Brexit and neither did those who campaigned in favour of it.

It has since become clear that the negotiations will be far more difficult than those in favour of Brexit would have admitted.  The EU is not prepared to grant something equivalent to Single Market membership without the UK accepting underlying fundamental principles, including freedom of movement, which the Government believes to be contrary to the referendum result, following a campaign in which immigration was a key issue.

The Government is already discussing the possibility of no deal at all being achieved, with the UK exiting with nothing more than World Trade Organisation terms. Most commentators agree that such an outcome would be ruinous for the UK economy.

The legal framework required to allow Brexit to occur is less interesting to non-lawyers, but is similarly a challenge for the UK Government, Parliament and the Civil Service of a magnitude and complexity that does not seem to have been fully anticipated before the referendum occurred.

It is not at all clear that most of those who voted for Brexit anticipated quite how large and complex a project it would be.  It will dominate the work of many Government departments for the next two years and, in some cases, much longer.