On 29th March 2017  the UK Government gave notice to Donald Tusk President of the European Council under Article 50 of its intention to withdraw from the European Union.

This will begin a two year negotiation procedure after which deal or no deal the UK will leave the EU. The negotiating window can however be extended by the agreement of the remaining 27 Member States.

It is unlikely that the negotiations will start in earnest at least until late June as the EU member states put together their wider negotiating teams and agree their negotiation objectives. The process may be further frustrated by elections in France and Germany due in May and early Autumn. Apart from a lot of political grandstanding by both the UK Government and the EU not much of substance is likely to emerge from the early stages of negotiation. However we do know that the EU position is that it has to agree the terms of the divorce first and bill for the UK Government’s former commitments to Europe rumoured to be in the region of £60 billion before negotiations can start on any future trade deal with the UK.

Focus will now turn to two key issues:  how the Government proposes to implement Brexit in national law and whether the Irish Courts will entertain a reference to the European Court of Justice on whether the UK Government may unilaterally withdraw its Article 50 notice during the two year negotiation process.

UK Implementation

The Government’s legislative programme in the run up the UK’s exit from the European Union will be swamped with Brexit related bills including in particular the Great Repeal Bill, which will transfer EU laws to the UK statute book. Many other acts of parliament will also be required. There is going to be little space for any other legislative measures. 

It is estimated that between 15-25% of current UK law is based on EU legislation. In transposing this EU legislation into UK laws the Government will have fillet out all mention of regulatory and other duties, rights and obligations currently vested in EU bodies such as the EU Commission. In addition the UK will have recreate its own immigration and customs rules for the UK. Ministers will also have to introduce legislation to establish UK agricultural, fisheries and trade policies for the first time for 40 years. This is just the beginning.

Make no mistake Brexit is likely to cause the “biggest legal train crash in modern history” and the consequences together with the problems of legal interpretation and the uncertainties created will be felt for generations.

It is the modern equivalent of Henry VIII’s break with Rome except many times more complex.”

The Great Repeal Bill is likely to be highly contentious as the Government proposes to use what are referred to as Henry VIII’s powers to repeal legislation by ministerial order after Brexit rather than following the usual Uk Parliamentary procedure of debating the repeal of the relevant legislation. The use of these powers based on Henry VIII’s Statute of Proclamations of 1539 are likely to be challenged both in Parliament and the Courts. Henry VIII didn’t need to contend with the modern principles of judicial review but today’s Government does. It could be very messy in the years ahead.

Can the UK unilaterally revoke it's Article 50 Notice

“The UK Government’s view has been and still is that once the Article 50 notice is served it is not possible to revoke it and the UK is leaving the European Union.

There is no doubt that if, at some time in the next two years, the UK Government changed its mind and the other 27 Member States agreed the UK could withdraw its Article 50 notification. .

But the really contentious question is whether, as a matter of EU law, the UK Government could unilaterally withdraw its notice without having to seek agreement from the remaining 27.

A senior English barrister, Jolyon Maugham Q.C ,and others have started a case before the High Court in the Republic of Ireland to answer this question. The case has been started in the Republic because it alleges breaches of EU law by  EU Member States other than the UK.  Proceedings were issued in January 2017. The case seeks a preliminary reference from the Irish Courts  to the Court of Justice of the European Union (CJEU) in Luxembourg which is the ultimate arbiter of European Law. The case seeks interpretation on a number of questions of European Law and, in particular, whether Article 50 can be revoked unilaterally by the UK.

Nobody knows whether as a matter of law Article 50 can be unilaterally withdrawn until the position is clarified by the CJEU.

However the claimants in this case believe that that many leading EU lawyers and politicians concur that a Member State could revoke a notification if it had a genuine change of heart. Among those who are strongly in favour of such an interpretation is Lord Kerr, a former leading diplomat, who is credited with having drafted the original text for Article 50 as well as Donald Tusk, President of the European Council.

The UK faces momentous decisions about its future in the months and years ahead. So it is only right that the British public should know the exact nature of the legal framework in which those decisions are being taken. “

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