Brexit: Power to Invoke Article 50 Becomes Law

Following debate about whether to accept amendments to the European UnBindmans Logo HRion (Notification of Withdrawal) Bill that had been made by the House of Lords, the House of Commons has now passed the Bill into law.

We hear from legal expert Selman Ansari, Senior Consultant at Bindmans LLP, who explains more.

The debates on the Bill were the direct result of an unprecedented public interest case, R (Miller and Dos Santos) v Secretary of State for Exiting the European Union, in which the Supreme Court held that responsibility for authorising the Article 50 process to take the UK out of the EU lies with Parliament, not the Government.

The Government’s response to the Supreme Court ruling was ‘disappointment’ followed by the short Bill and a White Paper with little detail and nothing at all on contingency plans for the breakdown of negotiations.

The Miller case itself concerned much more than Brexit.  It was about whether the Government could take away rights using prerogative powers without Parliamentary authority.  The attempt to do so was thwarted by the Supreme Court. Secondly, the case helped weave the safety net now in place below the tightrope onto which the Government is about to set foot. Soon, negotiations will begin over the terms of withdrawal, the UK’s future relationship with the EU, what should happen to EU nationals living in Britain and their British equivalents living elsewhere in the EU. Article 50 allows the UK two years to try and reach a deal on these things, not only with the EU institutions but also with each of the remaining 27 states.  That challenge is enormous.  In public, at least, the Government claims it is optimistic about the prospects of success, but parliamentarians of all parties and business leaders are rightly sceptical.  There is a very real risk that, as the end of the two-year negotiation period approaches in March 2019, there will be no deal or perhaps one simply confined to the mechanics of withdrawal.

A linked but separate issue is that of the Great Repeal Bill. This is the proposed instrument by which the government intends to deal with EU law currently effective in the UK. This is through a variety of domestic laws, directly effective EU directives and regulations, and, binding European case law.

An estimated 30% of UK laws are derived from Europe and this estimate obviously does not rank the importance of those laws in relation to establishing systems of regulation in particular areas. For example, UK competition law is currently aligned (although not, strictly speaking, derived from) European law. By way of a wholly domestic statute, the Enterprise Act 2002, there is a ‘cartel offence’. It could be that the entirely domestic cartel offence may also need reforming or repealing as part of the UK’s exit from European laws. Other areas of European law where professional associations may be affected by reform include data protection, procurement and the status of professional educational and training standards.   For the time being, the Government has indicated that it will lift, wholesale, current EU directives and regulations and replicate them in UK law through the Great Repeal Bill. This sounds fairly straight forward, but masks a whole range of issues – not least what happens when the EU changes its laws, either through new directives and regulations or through a change in interpretation by the European courts.

The Brexit vote was one of the great peaceful constitutional upheavals in British history. Such upheavals often do not manifest themselves for tens, if not hundreds, of years. However, it may be that, with the triggering of Article 50, like the proverbial waiting for a bus, we may see a number of such upheavals coming all at once.

Selman Ansari, Senior Consultant

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