One month after the EU referendum result, much has happened in the political arena. We have a new UK Prime Minister and new Cabinet, talks between EU Heads of State have taken place as well as the first court hearing of the legal challenges in relation to the effect of the referendum result.
The UK and devolved governments across the UK have been discussing issues of timing and procedure for invoking Article 50 and exiting the EU and, in the case of Scotland, how to secure its relationship with the EU.
UK and the EU
On 20 July 2016, following a meeting with German Chancellor Angela Merkel, the Prime Minister indicated that the UK was in no rush to leave the EU, acknowledging that it was important for there to be clarity on the UK’s approach. Asked about immigration and trade in goods and services, the Prime Minister has stated that these will both be important issues in discussions and that the UK will be taking some time to determine its principles and objectives.
The German Chancellor has stated her willingness to listen to what the UK wants in order to find the right answers and seek the best results for both the UK and the remaining EU Member States. However, she also underlined the need for clarity on timing. The Prime Minister has indicated that the UK will not begin official negotiations on leaving the EU this year. The UK Government has also announced that it is going to relinquish its upcoming six-month presidency of the Council of Europe in the second half of 2017.
Scotland and the EU
Scotland’s First Minister, Nicola Sturgeon, has outlined the next steps that the Scottish Government intends to take in order to meet the overarching objective of securing Scotland's position in Europe, following the EU referendum, and key interests to be protected. Speaking at an event hosted by the Institute for Public Policy Research (IPPR) in Edinburgh on 25 July 2016, she highlighted five key interests that the Scottish Government is seeking to protect in terms of Scotland’s relationship with Europe:
- Democratic interests – making sure Scotland's voice is heard and its wishes respected.
- Economic interests - safeguarding free movement of labour, access to the EU single market of 500 million people and EU funding for the agricultural and higher education sector.
- Social protection - ensuring continued protection for human rights and workers' rights.
- Solidarity – in terms of Scotland’s ability to work with other countries in relation to crime, terrorism and climate change.
- Influence – ensuring that Scotland has a say in shaping the laws governing the single market.
However, the question that remains to be answered is how these key interests can best be protected. In her speech, the First Minister noted that there was currently no clear line of sight to the future and that the situation was unprecedented, stating quite frankly that: “We don’t yet have any clear idea of what a Leave vote means in practice – while ‘Brexit means Brexit’ is intended to sound like a strong statement of intent, it is in fact just a sound bite that masks a lack of any clear sense of direction.” “If we can read anything from the early signs, whether from government appointments or initial pronouncements, it is that the UK is heading towards a hard rather than a soft Brexit – a future outside the single market, with only limited access, and significant restrictions on free movement.”
Previously, the First Minister had said a second independence vote was highly likely, but promised to explore other options. In her speech at the IPPR event, she stated that Scottish independence was not her starting point in considering options in response to Brexit and that she remained determined to explore all options; but she also noted that independence must be one of those options and that Scotland must have a right to consider it, although it would not be straightforward and would bring its own challenges. Her guiding principle was identification of the option that would be in the best interests of Scotland.
On the triggering of Article 50, the First Minister understood that the Prime Minister’s position was that Article 50 would not be triggered until an “overall UK” approach had been agreed. If, however, no agreement can be reached in terms of the approach to be taken, it is anticipated that the Scottish Government would need to move fairly quickly to take the necessary steps to seek a second independence referendum on Scottish independence, if that becomes the option considered to be in the best interests of Scotland.
Speaking at the IPPR event, a spokesman for the IPPR called on those who do not support the option of Scottish independence to come forward with their own solutions that will protect Scotland’s interests in response to the Brexit vote.
Scottish and UK Government discussions
On 15 July 2016, the First Minister met with the Prime Minister in Edinburgh, for what was described after the meeting as a constructive discussion, in spite of clear political differences. The First Minister’s reaction to the discussion was that she was pleased that the UK Government would be willing to listen to “any options that the Scottish Government now brings forward to secure Scotland’s relationship with the European Union. The process that is now taken forward by the UK Government will be open and flexible and the Scottish Government will be fully involved in that.”.
However, listening to options does not mean that the UK Government will commit to any of those options. Indeed, the Prime Minister has been reported to be unwilling to consider a second Scottish independence referendum, noting that the Scottish people "had their vote" in 2014.
Article 50 and legal actions in the English courts
Several private legal actions have been raised in recent weeks, challenging the right of the UK Government to invoke Article 50 of the EU Treaty using the Royal Prerogative without first obtaining the consent or approval of the UK Parliament. The actions are also seeking confirmation that the referendum result is advisory, rather than legally binding on the UK Government.
It is likely that the leading action will be the one raised by an Investment Manager from London, Gina Miller, with other challenges joining that action. A directions hearing on the actions took place in court on 19 July 2016. The court indicated that the actions will be heard over two to three days during October 2016, by Lord Chief Justice Lord Thomas of Cwmgiedd.
During the directions hearing on 19 July 2016, lawyers for the UK Government told the court that the Prime Minister did not intend to trigger Article 50 of the EU Treaty before the end of 2016. Given that the next hearing will take place in October 2016, this leaves time for any appeal to be made against the decision of the court before Article 50 is triggered and it seems likely that this case will be appealed all the way to the UK Supreme Court, whatever the initial court hearing decides.
Taking a slightly different line on timing, the Brexit Secretary, David Davis MP, has indicated that, in his view, Article 50 should be triggered "before or by the start of next year". EU leaders have urged the UK to trigger Article 50 as soon as possible, although they do not have the powers to force the UK Government to trigger Article 50 at any particular time.
Process for EU withdrawal and involvement with the devolved legislatures
During questions in the House of Commons last week to Jeremy Wright, the Attorney General for England and Wales, issues were raised about the discussions that the Attorney General’s department has had with the devolved Governments across the UK on the timescale for invoking Article 50 of the EU Treaty.
Although the Attorney General did not provide details of those discussions, he confirmed the Prime Minister’s earlier statement that Article 50 would not be triggered before the end of 2016, whilst also noting that invoking Article 50 was for the “UK Government to do at a time of their choosing”.
When asked whether a legislative consent motion was required to be passed by the Scottish Parliament before the UK Government had the legal authority to invoke Article 50, the Attorney General noted that, although all parts of the UK, including the Scottish Government, should be able to participate in the process of developing the UK’s approach to these negotiations, it does not mean that any of the parts of the UK have a veto over this process. He said “consultation most certainly, but veto I am afraid not.” He noted that “The Prime Minister has been very clear that the United Kingdom will leave the European Union, and that means all of the United Kingdom, but, as I said earlier, it is very important that in the process of exiting the European Union all parts of the United Kingdom have an opportunity to contribute to the negotiations in which we will engage. That is the spirit in which the UK Government will approach this process.”
When asked about reports that the Brexit Secretary, David Davis, had said that the UK Government might be able to prevent EU citizens from coming to the UK before the UK leaves the EU, whilst remaining in the EU single market, the Attorney General stated that: “The legal position is clear. For as long as we remain members of the European Union, the rights and responsibilities that attract as a result of that membership will persist, but it is open to the member states to negotiate different arrangements if they think it is appropriate to do so, and we will see, once Article 50 is triggered, exactly how those negotiations play out. The legal position, as I say, is that the rights and responsibilities of member states, and of course of citizens of those member states, will persist for as long as we are members of the European Union.”
British-Irish Council Extraordinary Summit
On 22 July 2016, the British-Irish Council convened an extraordinary summit of the Council in Cardiff, in advance of the Council summit scheduled to take place in Wales later in 2016. The British-Irish Council, which usually meets on an annual basis, comprises representatives from the Irish Government, UK Government, Scottish Government, Northern Ireland Executive, Welsh Government, Isle of Man Government, Government of Jersey and Government of Guernsey.
The meeting of the Council was called by First Minister for Wales, Mr Carwyn Jones, to discuss the implications of the Brexit vote for all Council members, including EU funding issues, the economy, trade, the Common Travel Area, the land border between Northern Ireland and Ireland, relations with the EU and the status of all citizens who would be affected by Brexit. Carwyn Jones stated that: "My view is that any future deal the UK agrees should be ratified by all four parliaments within the UK in order to get the greatest buy-in".
Nicola Sturgeon reported that the discussions had been “frank and robust” and that she had raised the issue of how the decision to trigger Article 50 would be made. She said: "I put forward very clearly the fact that a majority of people who voted in Scotland voted to remain, and that that meant we have a mandate to try to prevent the damaging consequences of Brexit for Scotland.” She noted that: "Sometimes these discussions seem very abstract, but the consequences of Brexit are potentially severe, for jobs and for trade and for our universities, for skills, for our ability to grow our population, so my mandate is to seek to protect Scotland's interests, and I was very clear that that's my job.”
Speaking at the Council meeting, the Northern Ireland Secretary for the UK Government, James Brokenshire, reiterated earlier statements made by the UK Prime Minister that "Brexit means Brexit", although he also indicated that the UK Government was "in listening mode".
We have set up a dedicated Brexit Group made up of expert lawyers from across all the specialist areas of the firm. To discuss what the referendum outcome means for you, please contact Fiona Killen or a member of our Brexit Group.