Davor Jancic: A Very Parliamentary Brexit: Satire in Two Acts

davor-jancicBrexit is a very parliamentary affair. The reason is that both the UK Parliament, the European Parliament and, in all likelihood, each of the parliaments of the EU Member States will have veto powers over the terms of Brexit. This gives them ample opportunities to influence the course of negotiations. Unless the wishes of all of these parliamentary bodies are accommodated, it will be a rather ‘hard’ Brexit indeed. This commentary examines the role of parliaments in the UK’s yet-to-be-triggered exit from the EU.

Approval: Tougher Than It Seems

The UK Supreme Court confirmed in the Miller case a month ago, only Parliament can unmake the EU law that is in force in the UK. In consequence, MPs and peers need to authorise the triggering of Article 50 TEU. While this allows each chamber to adopt amendments to the Government’s European Union (Notification of Withdrawal) Bill, none have passed in the House of Commons and it remains to be seen whether any will pass in the currently ongoing deliberations in the House of Lords. Once negotiations have been completed, Section 20 of the Constitutional Reform and Governance Act 2010 gives the Commons, but not the Lords, the power to veto ratification of the withdrawal agreement.

Equally, Article 218 TEU requires consent of the European Parliament (EP). Not only does the EP have its ‘own’ Brexit negotiator, former Belgian Prime Minister Guy Verhofstadt, the leader of the largest political grouping within the EP, the European People’s Party, Manfred Webber, warned that the EP will be a ‘very difficult partner’ in Brexit negotiations. The EP has already vetoed several EU international agreements: the ACTA, the first SWIFT Agreement, and sent the PNR agreements with the US and with Canada to the Court of Justice in Luxembourg for verification of compliance with the EU treaties. The EP means business.

The UK Government’s Brexit White Paper insists on reaching as comprehensive and frictionless agreement with the EU as possible. This would exceed the arrangements agreed in the CETA agreement signed between the EU and Canada and approved by the EP. However, this is a mixed agreement, which requires approval of national parliaments of the EU Member States. Any EU-UK trade deal is likely to necessitate domestic parliamentary approval too, because it is likely to affect the residence and employment rights of their nationals in the most direct way.

National parliaments are by no means in the dark about Brexit negotiations. COSAC, an interparliamentary conference gathering members of the European affairs committees of national parliaments and the EP, is presently conducting an inquiry into domestic parliamentary approaches to Brexit. For example, both the French National Assembly and the Senate have drawn up extensive reports on Brexit, making their own demands. French senators warned on 15 February 2017, ‘Brexit is a matter for Brits, the European awakening is a matter for Europeans; the European project may not be taken hostage by Brexit’. A week later, on 22 February 2017, French MPs brought CETA to the Constitutional Council for fear of a fresh transfer of sovereignty from the Member States to the EU. Belgium’s regional parliament of Wallonia, the ‘mouse that roared’ at CETA, further indicates that sub-national legislatures in the EU may also obstruct Brexit.

Devolved legislatures in the UK, however, are the most sidelined. As the UK Supreme Court ruled, their consent is not required for triggering the withdrawal process. This position stems from the constitutional fact that Britain is a unitary state, where the Westminster Parliament may freely grant or take powers away from Belfast, Cardiff and Edinburgh. The Supreme Court has clarified that the Sewel convention, which is a non-legally binding political promise that Westminster will not normally legislate on devolved matters without the consent of the devolved legislatures, is not sufficient to shield Scotland and Northern Ireland from Westminster’s legislative supremacy. That is the theory, the law as it stands now.

Politically, however, the image is much more blurry, because ignoring the position of the ‘remain’ countries of Scotland and Northern Ireland and exiting the EU against the wishes of the majority of their voters could legitimise centrifugal forces in the Kingdom that could lead to its break-up. Surely, this is not the goal of Brexit. On the plus side, Brexit may bolster parliamentary diplomacy within the British–Irish Parliamentary Assembly (established in 1990, expanded in 2001), which brings together legislators from Westminster, Oireachtas, and the devolved legislatures in Scotland, Wales, Northern Ireland, Guernsey, Jersey and the Isle of Man.

Taking Back Control: A Dampener

“Taking control of our own laws” is a key UK Government objective in Brexit negotiations. But will the British Parliament really rise to sovereign glory after the exit? The short answer is not quite. Here is why. The central instrument for ensuring a ‘smooth and orderly’ Brexit is to enact a Great Repeal Act (GPA). This Act will repeal the European Communities Act 1972, which is Parliament’s permission for EU law to apply in the UK. Westminster is back in the driver’s seat, you may think. However, two important considerations thwart this scenario.

First, the GPA will also ‘preserve’ EU law as it applies in the UK on Brexit day. This is aimed at preventing countless legal gaps from arising if EU law was abolished without it being replaced by British law. This is a good thing, as it ensures that private parties may continue to rely on ‘domesticated’ EU law to protect their rights and interests. But, there is a catch. There is so much EU law that has become applicable in the 44 years of British EU membership, that disentangling the two legal orders – by repealing directly applicable EU law that will have become unavailable on Brexit day and, most likely, replacing it in one form or another with UK law – may take years to complete. To illustrate this: only in January 2017, the EU adopted 77 new legal acts: 46 regulations, 30 decisions and one directive. To speed up the entrenchment or repeal of EU law in the UK, the GPA intends to use the so-called Henry VIII clauses, which allow the Government to adopt secondary legislation to amend or repeal primary legislation. The way in which Parliament will delegate this legislative task to the Government and what levels of scrutiny it may retain are as yet unknown. Power will nonetheless to a significant extent go back to the Government rather than to Parliament. Meanwhile, the Brexit and European scrutiny committees in both chambers will continue to oversee the Government’s negotiations plans. But debates, questions and reports, while paramount for executive accountability, will not be sufficient to reclaim full control over UK law-making.

Second, the influence of EU law in the UK will not end, as the Prime Minister hopes, and not only for the above reason. Not only will much EU law remain in rather than leave the UK legal system, EU law will find inroads in UK law in two other ways. The first one is through requirements that the EU will impose on the UK in exchange for a degree of single market access. The second one is through international standard-setting bodies, where the UK’s clout will have to compete with that of the EU27. The UK will already have to ‘return’ the European Medicines Agency and the European Banking Authority, two crucial licensing and regulatory bodies for the health and financial sectors which are currently tucked away in London’s Canary Wharf.

Many challenges to the UK Parliament’s legislative pre-eminence remain that will not be wiped out by Brexit. Conversely, some will be brought to the fore – above all, the commercial and regulatory interdependence between the UK and the rest of the European continent. Brexit negotiations are not going to be between two equal partners: they will be one against 27, all with their own sets of potential obstacles and wish lists.

Davor Jancic, Lecturer in Law, Department of Law, Queen Mary University of London. This commentary summarises the points made at the public debate on ‘Brexit and Parliaments’, held at Europe House in London on the premises of the European Parliament’s Information Office on 21 February 2017.

(Suggested citation: D. Jancic, ‘A Very Parliamentary Brexit: Satire in Two Acts’, U.K. Const. L. Blog (23rd Feb 2017) (available at https://ukconstitutionallaw.org/))