March Brexit briefing

  • Insight

20 March 2017

Following the decision of the UK Supreme Court in January 2017 that the UK Government requires primary legislation in order to trigger Article 50 of the EU Treaty, to commence withdrawal negotiations between the UK and the EU, the necessary legislation has now been passed by the UK Parliament.

On the eve of the Prime Minister, Theresa May, giving notice to the EU of the UK’s intention to leave the EU, the First Minister for Scotland has announced that she will seek a section 30 Order under the Scotland Act 1998, for a Scottish independence referendum, in response to the UK Government’s ‘hard Brexit’ approach to EU withdrawal. Article 50 is expected to be triggered on 29 March 2017.

European Union (Notification of Withdrawal) Act 2017

The European Union (Notification of Withdrawal) Act 2017 (“the 2017 Act”) received its Royal Assent on 16 March 2017. It is remarkably short in its terms (see below), but has the effect of giving the Prime Minister the power to give notice under Article 50 of the EU Treaty of the UK’s intention to leave the EU, so triggering a 2-year negotiation period between the UK and the other EU 27 Member States; although the 2-year period can be extended, with the agreement of Member States.

Power to notify withdrawal from the EU

  1. The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.
  2. This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

Short title

  1. This Act may be cited as the European Union (Notification of Withdrawal) Act 2017.

Article 50 requires that the withdrawal negotiations be conducted in light of guidelines to be provided by the European Council. These guidelines have not yet been published, but it is expected that they will be provided not long after the UK has triggered Article 50. The Prime Minister is expected to trigger Article 50 on 29 March 2017, marking the start of the 2-year negotiating period that will run to the end of March 2019. The UK’s permanent representative to the European Union, Sir Tim Barrow, is understood to have informed the EU that it should expect a letter of notification from the Prime Minister on that date. There is still no legal certainty about whether Article 50 is reversible, i.e. whether the UK can unilaterally withdraw its notice under Article 50 and effectively change its mind, before the end of the 2-year period. It is not yet known whether the issue of reversibility will be the subject of guidance from the EU. Article 50 is open to interpretation in respect of reversibility, but the UK Government’s position is that such a move would be politically unacceptable.

Citizenship issues

One of the most pressing and unresolved issues arising from Brexit is the concern about what, if any, rights non-UK EU or EEA citizens in the UK will be guaranteed once the UK leaves the EU. It is estimated that there are currently almost 3 million EU or EEA nationals in the UK, who have not yet been given any assurances by the UK Government about what their situation will be in a post-Brexit UK. Concerns have been expressed about the possibility that the situation of these people might be used by the UK Government as a bargaining chip in negotiations with the EU. The contemplation of such an approach has been the subject of criticism and concern by the Scottish Government and by a range of other groups and sectors, including rights-based groups and sectors of the economy that rely on the skills and contribution of EU and EEA citizens.

However, the 2017 Act makes no provision to safeguard the rights of these citizens currently living in the UK. An attempt was made to try to amend the legislation on its passage through Parliament, to require the UK Government to bring forward proposals, within 3 months of triggering Article 50, to ensure EU or EEA citizens who were legally resident in the UK on the day the 2017 Act was passed would continue to be treated in the same way going forward, in terms of their EU-derived rights and acquired rights in relation to residency. However, this amendment was rejected by a majority of MPs in the House of Commons.

Role of the UK Parliament

Another issue that has given rise to concern is the UK Government’s refusal to provide a specific provision in the 2017 Act giving the UK Parliament and the devolved Parliaments and Assemblies a vote on the final outcome of the withdrawal negotiation process, before the UK leaves the EU. The UK Government did not agree with the terms of an amendment to the legislation made in the House of Lords, which would have prevented the Prime Minister from concluding an agreement with the EU on the terms of the UK’s withdrawal without the approval of the UK Parliament (although none of the devolved Parliaments or Assemblies). The amendment also contained a requirement that such approval must be required before the European Parliament could debate and vote on the agreement. However, the amendment was removed from the legislation in its final stages in the House of Commons.

This means that, although the case for EU withdrawal made reference to the need to restore the sovereignty of the UK Parliament, on this occasion the UK Parliament has no legal guarantee that it will be able to veto the terms of the final deal. Although the UK Government has stated that a parliamentary vote on the final deal will be a political requirement, concerns have arisen that this will not be a meaningful vote. In contrast, the European Parliament will be required to vote on the agreement before it is finalised at EU level.

Notwithstanding the absence of a guarantee in the 2017 Act for a final vote on the deal in the UK Parliament, the UK Government will have to rely on the UK Parliament to bear much of the legislative burden associated with the task of leaving the EU. The Institute of Government has published a report on ‘Legislating Brexit: The Great Repeal Bill and the Wider Legislative Challenge’, which sets out the scale of the task. The report specifically notes that “to date there has been a complete lack of clarity about the role that the devolved legislatures will play in legislating for Brexit.” It recommends that the UK Government “should make clear at the earliest opportunity what role it envisages for the devolved legislatures: whether the devolved legislatures will need to pass their own bills to preserve EU legislation that has effect at a devolved level; and, whether ‘legislative consent’ motions will be needed to signal the nations’ assent to UK-wide primary legislation changing the powers of the devolved governments.”

Second Scottish Independence Referendum

On Monday 13 March 2017, the First Minister of Scotland announced her intention to seek a section 30 Order under the Scotland Act 1998 for a Scottish independence referendum. The Scottish Parliament will vote on the following motion in the name of Nicola Sturgeon (S5M-04710) this week, following a debate on Tuesday 21 and Wednesday 22 March:

Scotland’s Choice: That the Parliament acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs and therefore mandates the Scottish Government to take forward discussions with the UK Government on the details of an order under section 30 of the Scotland Act 1998 to ensure that the Scottish Parliament can legislate for a referendum to be held that will give the people of Scotland a choice over the future direction and governance of their country at a time, and with a question and franchise, determined by the Scottish Parliament, which would most appropriately be between the autumn of 2018, when there is clarity over the outcome of the Brexit negotiations, and around the point at which the UK leaves the EU in spring 2019.

It is anticipated that the Scottish Government will secure a majority in favour of a section 30 Order, with the support of Green MSPs.

The First Minister indicated that her announcement about a Scottish independence referendum was in response to a failure by the UK Government to properly consider representations from the Scottish Government regarding particular concerns arising from the UK Government’s pursuit of a ‘hard Brexit’, in relation to access to the single market and free movement of persons. The First Minister stated that Scottish Government representations had hit a “brick wall” with the UK Government, who she considered had abandoned the “language of partnership”. She stated: “I cannot pretend to the Scottish people that a compromise looks even remotely likely”, but added that her “door will always be open to discussion” with the Prime Minister.

In terms of timescales, the First Minister indicated that her preferred timescale for a Scottish independence referendum was sometime between Autumn 2018 and Spring 2019, at a time when the terms of the UK Brexit deal would be known to voters in Scotland, to enable them to make an informed choice about Scotland’s future. The Prime Minister has so far indicated that the UK Government’s view is that the timing of this proposal is not right. It remains to be seen whether the UK Government will refuse a request for a section 30 Order for a Scottish independence referendum, if the Scottish Parliament votes in favour of that option.

Scottish Parliament inquiry report

On 5 March 2017, the Scottish Parliament’s Culture, Tourism, Europe and External Relations Committee published its report: Determining Scotland’s Future Relationship with the European Union. The report can be read here. The report was debated in the Scottish Parliament Chamber on 15 March 2017. The debate can be read here. The report comes out of an inquiry by the Committee which commenced in July 2016, taking evidence from a wide range of contributors, as well as gathering expert evidence from specialist advisers on EU law, on matters including the implications for Scotland of leaving the EU, on Scotland’s future relationship with the EU and on how Scotland’s interests will be represented in the EU withdrawal process.

Information obtained during the inquiry includes correspondence with Scottish Ministers and UK Ministers, including most recently correspondence of 3 March from the UK Minister of State for Trade and Investment Greg Hands MP regarding communications with the WTO. The Committee has published other reports during the course of its inquiry, include a report on EU Migration and EU Citizens’ Rights (6 February 2017) and a report on Brexit: What Scotland thinks: summary of evidence and emerging issues (20 January 2017), which make interesting reading at this stage in the process.

For further information on any of the issues in this briefing