The UK’s Prime Minister, Theresa May, has delivered a speech at the Conservative Party’s annual conference. The speech gives us more insight into the government’s plans for #Brexit than we’ve had before, but it makes the lawyer in me wonder if the government is overreaching itself already.

The #Brexit related headlines from today’s speech include:

“… Britain is going to leave the European Union … ”

” … everything we do … will be consistent with the law … and that means invoking Article Fifty …”

“… We will invoke Article Fifty no later than the end of March next year …”

“… it is not up to the House of Commons to invoke Article Fifty, and it is not up to the House of Lords.  It is up to the Government … and the Government alone ...”

“… we will … put before Parliament a Great Repeal Bill, which will [revoke] the European Communities Act [(ECA)]. This … will mean that … the legislation that gives direct effect to all EU law in Britain, will no longer apply from the date upon which we formally leave the European Union …

As we repeal the [ECA], we will convert the ‘acquis’ – that is, the body of existing EU law – into British law.  When the Great Repeal Bill is given Royal Assent, Parliament will be free … to amend, repeal and improve any law it chooses. But by converting the acquis into British law, we will give businesses and workers maximum certainty as we leave the European Union.  The same rules and laws will apply to them after Brexit as they did before …”

“… we are going to leave the EU.  We are going to be a fully-independent, sovereign country, a country that is no longer part of a political union with supranational institutions that can override national parliaments and courts.  And that means we are going … to have the freedom to make our own decisions … from how we label our food to the way … we … control immigration.

… the process we are about to begin is not about negotiating all of our sovereignty away again … It is not … a negotiation to establish a relationship … like the one we have had … [I]t is not going to [be] a “Norway model”. It’s not going to be a “Switzerland model”.  It is going to be an agreement between an independent, sovereign United Kingdom and the European Union …  But we will seek the best deal possible as we negotiate a new agreement with the European Union … I want it to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same here. But let me be clear.  We are not leaving the European Union only to give up control of immigration again.  And we are not leaving only to return to the jurisdiction of the European Court of Justice … ”

Comments

If the UK gives its Article 50 notice in Q1 2017, it will probably leave the EU in Q1 2019. If the UK and EU agree the terms of the UK’s withdrawal in less than 2 years, the UK could leave more quickly, but this is unlikely. If the UK and EU need more than 2 years to agree terms, the 2 year notice period could be extended, but this would require the agreement of at least a qualified majority of the other EU Member States, so this seems unlikely too. (More details here.)

As anticipated, the government will use “savings legislation” to bake all existing EU law into UK law, to stop holes appearing in UK law at the moment the UK leaves the EU.  At least for now, that legislation is being referred to as the Great Repeal Bill (perhaps it will become the Great Repeal Act – rather than something else – in due course). That Bill will be introduced in the next Queen’s speech (in say April 2017), and is expected to receive royal assent before Q1 2019. It will come into force from the moment the UK leaves the EU, whether that’s on an agreed date in accordance with the agreed withdrawal terms, or by default at the end of the 2 year Article 50 notice period if no agreement has been reached.

Notwithstanding the Prime Minister’s comments (above and in the wider speech), but as anticipated, the UK seems to be heading towards (a) a “hard Brexit” (or at least something at that end of the soft or hard-Brexit spectrum); and (b) a version of the Swiss option (at least in the sense that the government seems to be hoping that it will be able to negotiate a bi-lateral agreement with the EU that will give UK businesses access to at least some of the single market on terms that are better than those available under ordinary WTO rules). A hard-Brexit and “the maximum freedom to trade with and operate in the Single Market… ” will be difficult to achieve, at best, if the rhetoric from the European institutions and the leaders of the major European economies are to be taken at face value. European Treaty change may also be required – leaving more opportunity for slips between cups and lips.

The prime minister seems to have been careful to stress that it’s up to the government to give the Article 50 notice. Few will doubt this assertion. But there are good legal reasons for supposing that the government cannot lawfully give that notice unless and until it’s been authorised to do so:

• by a motion of both houses of parliament (see the House of Lords Select Committee Report on invoking article 50 – blog here); or
• by an Act of Parliament (see the pending judicial review, where the litigants are: the Claimants ((1) Gina Miller; and (2) Deir Tozettis Dos Santos); the Defendant (the Secretary of State for Exiting the European Union – David Davis MP); the Interested Parties ((1) AB, KK, PR and children; and (2) Grahame Pigney and others); and the Interveners (George Birnie and others) – blog here.

So the government may be over-reaching itself in at least 2 ways: (a) in its desire for something akin to a hard-Brexit and maximum freedom to trade with and operate in the single market; and (b) by impliedly assuming that it will be free to give the Article 50 notice in Q1 2017. We’ll see. More to follow…