The past, the present and the future of Brexit

This article presents the political context of the current Brexit debacle and addresses the complex legal questions covering many Brexit eventualities.

The political aspect

On 12th December 2018 Theresa May faced a vote of no-confidence from her fellow Conservative Members of Parliament (MPs). She won by 200 to 117 votes, consequently retaining her premiership. However, the fact that more than a third of Conservative MPs voted against her is regarded by Brexiteers as a clear sign that the deal she struck with the EU is deeply unpopular within the UK’s governing party. One key reason why May survived was her pledge to resign before the next general election in 2022. With this promise she hoped to reassure MPs who feared that she would become an electoral drawback, but at the same time she risks damaging her own fragile authority.[1] As a matter of fact, talks between the main opposition force, the Labour Party, and the Democratic Unionist Party, are currently taking place in order to trigger a no-confidence motion in the House of Commons against the Government, which if enacted would further weaken May’s position as it would have the support of the hardline Tory Brexiteers who are against her.[2] This case drew comparisons with the 1990 Conservative leadership contest in which the then British premier Margaret Thatcher was running for re-election. She won the first round by 204 to 152 votes, but party rules stated that the winner had to be at least 15 percent ahead of his/her opponent. Later, Thatcher was persuaded by her cabinet not to proceed with the second round because it was felt that she could not succeed. Therefore the Iron Lady resigned as party leader and Prime Minister before being replaced by John Major, who triumphed in the second leadership ballot.[3] Coincidentally this contest began partially because of Europe as Thatcher’s finance and foreign minister Sir Geoffrey Howe, who believed strongly in European unity, resigned after she rejected further integration at a summit earlier that year.[4]

May travelled to Brussels the day after the no-confidence vote in order to gain legal assurances on the Irish backstop from EU leaders. Unfortunately for her, they just reiterated that the deal was not up for renegotiation, but simultaneously they doubted her ability to get it through Parliament. The European Commission President Jean-Claude Juncker urged the UK to establish more clearly what it wants and declared that the Commission would soon publish information on its preparations for a no-deal/hard Brexit. In contrast, Austrian chancellor Sebastian Kurz, whose country currently holds the EU presidency, suggested that there could be a Brexit summit in January 2019 to agree on “additional assurances”. Meanwhile, Downing Street has confirmed that a Parliamentary vote on May’s deal will also take place at the start of the New Year. [5] This is the point at which matters will become complicated for Britain.

What is certain is that May does not have the full backing of neither her own party or even the opposition to ensure that the deal passes through the House of Commons. So we can conclude that it is highly unlikely that it will be ratified, thus making her even more vulnerable. It is more than probable that May would not survive a vote of no-confidence in her Government if it is triggered by Labour and the opposition parties, meaning that she would have to step down. At this point there will be several options for the House of Commons to undertake: a leadership contest within the Conservative Party; the formation of a Labour minority Government; a general election; a second referendum; leave the EU with no deal (i.e. a hard Brexit); or unilaterally revoke Article 50.

If May resigns as prime minister the Tories would be under intense pressure to find a new leader for the country. David Lidlington, the current cabinet office minister and May’s second-in-command, could take the reins of the country temporarily, but it would not be a long-term solution.[6] A leadership competition could occur within the Conservative Party. The only advantage of this undertaking is that it would take less time than a general election or a second referendum, but whoever wins would have to face the same challenges as her predecessor and would require the backing of a majority of MPs and rank-and-file members. All this would happen within fourteen days, which is the time allowed under the Fixed Term Parliament Act for a Government to form a new administration if it loses a vote of confidence. If the Tories are unsuccessful then a general election will have to be held.

The Labour Party has been presenting itself as a force ready to lead a minority Government in case May gives her notice. While they are right to say that theoretically a UK prime minister can be nominated even without an election, it is not a given that Labour leader Jeremy Corbyn could take May’s place since the present circumstances would still favour a Conservative successor. Therefore Britain’s main opposition party has a higher chance of taking charge only after a popular vote.[7] If, indeed, a general election is held it would require the extension of the Article 50 deadline (29th March 2019) and whoever gains power afterwards would still have to reach a compromise with the EU.

The idea of holding a second referendum, or People’s Vote, as it has been referred to, is gaining traction lately. In early December 2018 a survey was conducted showing that 62 percent of the UK population wants a final say on the Brexit deal.[8] Another poll concluded that there has been a decrease in support for Brexit and an increase in attitudes favouring EU membership.[9] The campaign for a People’s Vote has been publicly backed by 53 MPs from the Conservative, Labour, Liberal Democrat, Green and Scottish and Welsh nationalist parties. May is completely against it, while Labour’s position is to keep “all options on the table” meaning that it could support a second plebiscite if there is no other feasible way out of the Brexit crisis.[10] At the time of writing it has been reported that a number of May’s cabinet ministers consider the withdrawal agreement to be dead and are reluctantly considering the prospect of a People’s Vote.[11] Although it might seem like a justified course of action, there are some undeniable problems that go with it. Critics argue that having another referendum would divide the British public even more than the one held in 2016. Moreover, they claim that it would be an affront to democracy if the results of a second vote overturned the outcome of the previous referendum as it would make many people (especially hardline Brexiteers) lose faith in the idea that using the ballot box can make a change. This in turn could foster social unrest which would embolden far-right and populist forces. If enacted, it would be reminiscent of when Ireland held two referendums on the Lisbon Treaty in 2008 and 2009. In the first vote the Irish people rejected the Treaty. Outraged, the EU establishment persuaded Ireland’s Government to have a rerun which ended up reversing the previous result. Furthermore, even if a People’s Vote gained Parliamentary approval it would mean that the Article 50 deadline would still have to be extended.

At the beginning of December 2018, May stated that British lawmakers faced three choices: accept the deal she struck with the EU, leave with no deal or cancel Brexit altogether.[12] The chances of a hard Brexit are slim since the majority of MPs (both in the Government and in the opposition) are against it. Many economists and businessmen are also not in favour of a no deal scenario since they claim that it would be catastrophic for the country’s economy. In addition, the House of Commons has recently ratified a motion allowing MPs to decide on the next steps if May’s deal is rejected, thus damaging her authority even more.[13] Although the European Court of Justice (ECJ) has declared that Britain could revoke Article 50 unilaterally, the UK prime minister has already dismissed the idea.[14] If this option is carried out it would be just as divisive as a second referendum and it would make hardline Brexiteers believe that out-of-touch politicians have capitulated to the ‘elitist’ EU.

As we have explained, in the likely case that May’s deal gets turned down by the House of Commons there is a variety of pathways to follow, each with their own pros and cons. However there is another approach that could be a solution to the Brexit conundrum. And that is for the UK Government to push for a Norway-style deal. This idea is backed by several MPs and there is a growing feeling that it would be approved by a Parliamentary majority.[15] A research study demonstrated that an increasing number of British voters would like their Government to negotiate a soft Brexit, along the lines of Norway’s relationship with the EU. When it came to a new referendum, participants responded that they would support continued EU membership over a customs union or no-deal Brexit, but would prefer the Norwegian model over Remain if given the choice. This proves that more and more people regard close ties between Britain and the EU positively.[16] The question you might be asking is: what would a Norway-style deal entail?

Essentially, a Norway-style Brexit would mean leaving the EU, staying in the European Economic Area (EEA) and single market, and re-joining the European Free Trade Association (EFTA), an interGovernmental organisation comprising Norway, Iceland, Liechtenstein and Switzerland who trade with each other and sign trade deals with other countries. The UK used to be part of this group until 1973. Membership of the EEA and EFTA, as well as access to the single market means that there will be less obstacles to UK-EU trade and continued single market treatment for services, which account for roughly 80 percent of the British economy. Moreover, the United Kingdom will not be forced to agree to some of the EU’s most controversial policies, such as the Common Fisheries Policy and the Common Agricultural Policy and it would no longer be under the jurisdiction of the ECJ. Furthermore, most studies (including a recent Government impact assessment) have concluded that the Norway option would be the least damaging in terms of economic harm.[17] As a matter of fact if Britain remained in the EEA then it would not have to pay a £40 billion withdrawal bill.[18]

People have mentioned the disadvantages of this direction, including the fact that Britain would still have to accept the freedom of movement of people and that it would still have to abide by EU regulations without having a say. However, as George Trefgarne explained, these flaws are “mythical”. While it is true that the freedom of movement of labourers is part of the EEA Treaty there are two opt-outs. Firstly, Article 112 allows members to restrict immigration in order to address “societal or environmental difficulties of a sectorial or regional nature” which is what Liechtenstein has done since 1997. Secondly, Article 28 states that freedom of movement can be “subject to limitations justified on grounds of public policy, public security or public health”. One of the other myths used to discredit the Norway option is that the UK would still have to pay into the EU budget and abide by its regulations. Trefgarne wrote that in reality the EEA does not pay fees to the EU, but EEA members agree to give monetary contributions to voluntarily participate in certain EU agencies and programmes. Also, single market rules make up only 28 percent of EU laws and, under the EEA agreement, EFTA members have the right to be consulted on single market legislation. For instance, Article 102 permits members to veto rules they disagree with. One example is when Norway forbade EU-licensed vessels to fish for snow crabs in its waters. The EU asked the EFTA to take action, but it refused to do so, meaning that it recognised Norway’s veto power. Other notable criticisms of this model are that the UK won’t be able to negotiate its own trade deals and that the EFTA court obeys the ECJ. However, as pointed out above, the EFTA members sign free-trade deals with other countries. They currently have 27 agreements with 43 other states, but they can negotiate bilateral agreements too, as Switzerland has done with China and Japan. When it comes to the EFTA court, it does work together with the ECJ to create a unified procedure, albeit being autonomous. Its former president Dr Carl Baudenbacher highlighted that it is not bound to the ECJ and cited eleven cases in which the EFTA court deviated from its counterpart.[19]

Perhaps the strongest case for a Norway-style Brexit is that it would solve the problem of the Irish border. By respecting single market rules, Britain would avoid an excess of non-tariff barriers that would otherwise emerge on the frontier between Northern Ireland and the Irish Republic.[20] Former Conservative minister Nick Boles has championed a ‘Norway-plus’ as an alternative Brexit plan if May’s deal gets rejected by Parliament. The ‘plus’ would be a temporary customs union with the EU which would be negotiated to ensure that there is no hard border in Ireland. This temporary arrangement would be kept until the UK and the EU signed a specific trade deal. However, as appealing as a Norway-style deal may look, it has already been ruled out by Theresa May who suggested that she would not offer it as a compromise to reach a Parliamentary consensus, since it would mean the continuance of freedom of movement of people.[21] Even the main opposition leader Jeremy Corbyn has refused to endorse the Norwegian model because, in his view, it would turn Britain into a “rule taker” without any influence at EU level.[22] His ideal Brexit agreement would include a “comprehensive customs union with the EU, with a British say in future trade deals”, “a new and strong relationship with the single market” that allows “frictionless trade”, a migration policy that meets “the needs of the economy”, “an open border in Ireland” and “guarantees that existing EU rights at work, environmental standards and consumer protections will become a benchmark to build upon”.[23]

Another obstacle for any possible Norway-style deal is the EFTA members themselves. If Britain attempts to re-join the EFTA, its membership request would have be to considered by the EFTA Council, where decisions are taken by consensus. It is not possible to tell exactly what their conclusion will be as EFTA needs to examine all options to protect the interests of its member states.[24] Not long ago, senior Norwegian politicians and business figures spurned the idea of a ‘Norway-plus’ agreement, claiming that it would not be in Britain’s nor in their country’s interest. This has been a blow to a British parliamentary cross-party group which supports this model. Erna Solberg, the Norwegian prime minister, on the other hand has been more diplomatic saying that Norway would examine a UK application. Nonetheless, Heidi Nordby Lunde, a Norwegian Parliamentary deputy belonging to the governing Conservative Party and leader of her country’s European movement, who is opposed to Britain joining the EFTA, explained that her opinion reflected that of her Government. Ole Erik Almlid, of the Confederation of Norwegian Enterprise business association, reiterated Lunde’s viewpoint by questioning whether Britain would be willing to be a rule taker instead of a rule maker. He remarked that Norway would suffer and that sections of the EFTA agreement would have to be suspended if an EFTA member such as the UK refused to follow the obligations within the treaty.[25]

One option that is not currently on the table but could probably be an even better solution than the Norwegian model is a ‘Ukraine-plus’ deal. According to the research carried out by Ursula F. Ott and Pervez N. Ghauri, two professors of International Business, the style of Ukraine’s relationship with the EU is one that satisfies Theresa May’s objectives. Therefore a ‘Ukraine-plus’ agreement is viable as it would entail: access to the EU single market; the ability to strike trade deals with other states; an end to EU law being applied in the UK; cessation of the freedom of movement of people; cooperation with the EU on security and defence matters; and no ECJ oversight. Although Ukrainian workers cannot move freely, there is visa-free travel between Ukraine and most EU member states, meaning that Ukraine’s citizens can travel for a maximum of 90 days in a 180-day period for tourism, business reasons or visiting friends and relatives abroad. Something similar could help Britain gain full control of its borders, which was a key issue in the Brexit debates. As Ott and Ghauri explained, a ‘Ukraine-plus’ option would be the ideal treaty that May should negotiate with the EU as it could achieve most of her goals and appeal to the different factions within the Conservative Party.[26]

The legal viewpoint

From November to present day, recent developments on Brexit, since the Withdrawal Agreement was agreed jointly by the European Council and the Government of the United Kingdom, have taken place and sparked several concerns. Below, we will undertake a concise analysis based on two aspects, namely; Parliamentary sovereignty (including the question of the 2016 referendum and its implications), and the primacy of EU law (referring to, likewise, international law obligations bound by treaties).

Parliamentary sovereignty and the legal effects produced by the 2016 referendum

Q: What legislation governs a referendum in the United Kingdom?

A: According to the Political Parties, Elections and Referendums Act (PPERA) 2000, referendum “means a referendum or other poll held, in pursuance of any provision made by or under an Act of Parliament, on one or more questions specified in or in accordance with any such provision”.[27] In addition, the Code of Good Practices on Referendums 2007, elaborated by the Venice Commission of the Council of Europe, provides that referendums “must comply with the legal system as a whole, and especially the procedural rules”.[28] Based on the previous definitions and legislative official provisions, a referendum underscores four main elements to be considered as valid: (a) it must comprise an objective mean to cast people’s opinion (eg. through votes), (b) it shall respond to a specific objective established in an Act of Parliament, (c) needs to contain a question aligned with the objective determined in the Act of Parliament that invokes the referendum, and (d) it cannot be contrary to constitutional or statutory laws.

Q: Was the 2016 referendum held legally binding?

A: If we consider the four elements explained above, (a) it is clear the contested referendum included an objective mean to cast people’s votes. Likewise, (b) it seeked to cast the people’s opinion on “whether the United Kingdom should remain a member of the European Union”.[29] Besides, (c) the language of the question determined for the 2016 referendum is undoubtedly aligned with the objective of the referendum proposed .[30] Finally, (d) the 2016 referendum was not contrary to any constitutional or statutory law, as the Act of Parliament that approved it, was discussed and not legally contested nor challenged by any third party or Member of the Parliament.

However, the nature of the ‘legally binding’ aspect alludes more to the effects produced by the results of the referendum. Therefore, we will briefly discuss whether the results legitimised the Government to trigger Article 50 TEU and initiate Brexit. Reading the wording of the EURA 2015 again, it certifies that no provisions are given for the interpretation and/or implementation of the referendum result on whether confirming or renouncing to EU membership.[31] A situation confirmed by the Supreme Court of the United Kingdom, that acknowledges the “referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation”.[32] Based on this argument, a referendum would only produce a legally binding result, whenever the Act or statute that regulates it, provides the effects either outcome would produce on existing legislation. Therefore, in this specific case, it concerns directly to the UK membership to the EU, which also refers to the question of EU citizenship and the numerous and exhaustive rights it comprises.[33]

As a result, a referendum shall only be considered as legally binding in its outcome, whenever it contemplates that possibility in the form of a clear and concise provision stipulated in the text of the Act of Parliament authorizing it.[34] In this specific case, the Supreme Court dealt with challenging the power the Government claimed it was given by the people’s vote in the referendum to “allow [them] to withdraw the United Kingdom from the European Union without legislation”.[35] Likewise, it is relevant to understand the difference between the content of the law and the intention behind the drafters of a law whilst interpreting its essence. While the former refers to an understanding of the meaning of the written provision in a certain law or statute, the latter draws its attention to the intention pursued by the Member of Parliament or Minister responsible for drafting that legal document. Consequently, it is not necessary for content to be an equivalent to what the Ministers or MPs responsible for drafting the Bill (that will later become a statute or Act) were pursuing or seeking to achieve after enacting and implementing it. As such, due to the absence of clear and specific provisions in the statute about the effects of that 2016 referendum it is clear, therefore, it did not materialise the effect desired by its sponsors.[36]

In conclusion, we may affirm the 2016 referendum was politically, but not legally binding.[37] The former, if we consider how the Parliament relied heavily on the outcome to decide granting the power to the Government to trigger Article 50 TEU. Finally, the latter, due to the lack of clear provisions in the statute about the effects it should have produced in UK legislation.

Q: What is Parliamentary sovereignty and what implications does it represent to the outcome of Brexit?

A: Departing from the Miller (UKSC 5) case, the Supreme Court underscores a written response from the Government to a House of Lords Select Committee Report. Therein, the court outlined a recommendation that comprised three key elements: 1) sovereignty of Parliament, 2) referendums are not legally binding in the UK, 3) not being legally binding does not exclude Parliament discretion to rely heavily on people’s opinion on certain matters.[38] Despite being a favourable response, it goes further by affirming “Parliament must be responsible for deciding whether or not to take action in response to a referendum result”.[39] An important precedent that demonstrates in practice that Parliament, regardless of its sovereign power to decide on matters affecting the UK in its entirety, cannot as easily as any other action dismiss the will and opinion from the people.

Basically, in contrast to many of contemporary European democracies, Parliament enjoys a supreme power, as conceived by John Locke, due to its competence to dictate and make laws within a specific territory.[40] This responsibility encompasses the duty of the holder of the Executive power to enact laws or acts after receiving the consent from the legislative body (the Parliament), as it only governs under an oath to the law which, if violated, undermines its legitimacy to rule the territory.[41] These considerations do reflect the nature of this peculiar system of Government that, to some extent, might contribute to reaffirm the will of the people in opposition to the interests of the Executive power based on objective evidence of that opinion, such as the one a referendum offers.

Having contested the nature of the legally binding referendum in the UK, we may now analyse and examine whether the Government’s prerogative power or Parliament’s ‘parliamentary sovereignty’ prevails in the matter of affairs connected directly to Brexit. The Supreme Court refers back to the membership process of the United Kingdom into the European Economic Community (nowadays, the European Union) in 1972, in order to respond to this question. Herein lies the relevance of the legal process that followed the integration of the UK into the European Community, noting with great attention the powers used and implemented to achieve that objective. On this question, the Court affirmed that “Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties”.[42] By strongly vindicating the power the Parliament holds, the Court recognizes it “involves a unilateral action by the relevant constitutional bodies which effects a fundamental change in the constitutional arrangements of the United Kingdom”.[43] In other words, if Parliament’s legally binding decision translated into the Government notification that transmitted the UK will to join and enter the European Communities, after the favourable outcome of the 1972 referendum, then, it is uncontested that any decision irreversibly affecting the constitutional structure and powers of the State can only be valid if the Parliament agrees on that. For this reason, following the procedures of its admission, a withdrawal, that is a unilateral act, can only be achieved if the same institutional body that endorsed the decision to join the international organisation it is now seeking to leave, gives its consent for the Government to execute that provision authorizing the withdrawal.[44]

Based on the reasons presented above, we may claim that Parliamentary sovereignty prevails over the Government’s prerogative powers on whether deciding to continue to pursue Brexit or unilaterally revoking the notification that expressed the intention to withdraw from the EU. One certain criteria reaffirmed in the content of the European Union (Withdrawal) Act 2018 (see Section 13), now in force, regulates the development of Brexit and entitles the Parliament to reject or approve an Agreement, in accordance with Article 50 TEU. With this Act, and the jurisprudence cited above, the Government cannot unilaterally enact any power concerning the continuity or not of Brexit if not endorsed by a Parliament (House of Commons) binding decision (eg. a statute). In addition, the recent ECJ ruling on the revocation of the notification of the withdrawal, as laid down in Article 50 TEU, acknowledges that a wish to remain must be “expressed through its democratic process in accordance with its constitutional requirements”.[45] Respecting that criteria outlined by the Court, and following the UK constitutional doctrine, referendums should only be legally binding, if direct legal effects are provided in the act that implements them. How it is possible to achieve that? This relies heavily on the Parliament power to materialise its sovereignty by deciding accordingly, to the last extent, on the public opinion, in a binding rather than in a consultative referendum as the one held in 2016.

Primacy of EU law and the obligations bound by treaties in international law

Q: Does EU law prevail over UK national laws?

A: To question whether EU law prevails over a Member State national law, means contesting the maxim “ex factis oritur jus”, that means the law arises from the facts.[46] This is an approach justified with the creation of an international organisation (the European Union, formerly known as the European Economic Community), which is autonomous and empowered to fulfil its mandate through the “limitation of sovereignty or a transfer of powers from the states”.[47]

However, any international organisation, regardless of its peculiar conditions, can invoke the prevalence of its decisions over the already established legal order of its own Member States? To answer it, we should examine the EEC Founding Treaty (EEC Treaty), that “created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States”.[48] Clearly, the founding States of the Community had to make reasonable concessions on sovereignty to ensure that new organisation would achieve the goals and comply with the duties established under the Treaty. Hence, this decision responded to the States’ own will to limit their powers for the sake of the Community to fulfil its responsibilities on behalf of its Members as a whole.[49]

In addition, having discussed the question, in principle, about the prevalence of EU law over national law, we may refer to the question of a State, like the United Kingdom, that was not a Founding Member, rather a Member that was granted admission after a referendum and negotiations took place in 1972. Having not been a Founding Member, the United Kingdom signed and ratified jointly with the Community Members a Treaty of Accession to integrate as a Member, where it transferred “to the Community legal system of the rights and obligations arising under the Treaty”.[50] Thus, the rights and obligations transferred did not originate from the founding Treaty that constituted the Community, as the United Kingdom did neither sign nor ratify directly the 1957 EEC Treaty, but from the 1972 Treaty of Accession, with its Protocols and Annexes, based on the negotiations held for its admission. Furthermore, it might be questioned whether the limitation of sovereignty is subject to the conditions provided in the EEC Treaty. Nevertheless, as the Act of Accession (an integral independent part per each State comprised in the Treaty of Accession) is part of the EU primary law, the entirety of its content (including its protocols and annexes) do also constitute “provisions of primary law, unless that act provides otherwise”.[51] Accordingly, regardless of its type of membership (founding member or accesitary member), the 1972 Act of Accession, its Protocols and Annexes, are binding and applicable for the United Kingdom in an equal manner as the EEC Treaty is for the Members who signed and ratified it in 1957.

Furthermore, to clarify the procedures needed for EU laws and its legally binding instruments to directly impact UK legislation, we must refer to the European Communities Act 1972. How do all EU laws and compulsory texts have binding effect within the territory of the United Kingdom? The Act “authorises a dynamic process by which… EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes”.[52] In other words, the statute contributes to constitutionally ensure a safe mean to implement EU legislation in the UK legal order, rather than limiting or conditioning its applicability according to the competences attributed to the EU. Moreover, we may underscore that “EU Treaties themselves are directly applicable”, a premise that, connected to Article 50 TEU, demonstrates EU laws, as “independent source of law”, prevail over UK ones.[53] Therefore, EU laws hold the right to overrule or dismiss any contradictory domestic law opposed to its content.[54] Above all, we should bear in mind “constitutional processes by which the law of the United Kingdom is made is exclusively a question of domestic law”, meaning EU law cannot oblige the UK to enact or pass legislation following a specific, detailed mechanism.[55] Owing to this relation, the UK may overrule its own legislation enacting a right invoked from the direct content of the Treaty. Whereas this measure is not contrary in style and content to the essence of the EU Treaty provision, it is possible for the UK to withdraw the act or statute that established the exercise of a right conferred by the Treaty as a Member State. As a result of following the procedures to enact a domestic law, the UK would be capable of passing an act or statute to displace the previous one invoked to establish the exercise of that specific right derived from a EU Treaty.

Notwithstanding this possibility, the decision must respect EU law. Therefore, the UK cannot initiate its domestic procedures to repeal the initial act that established the exercise of the right it invoked from the EU Treaty once it has entered into force. In short, the moment the act that regulates the withdrawal from the EU enters into force, by, first, repealing the act that established the applicability of EU law in the UK, it will produce legally binding effects. Consequently, any attempt to enact a law that displaces the act of withdrawal after it enters into force, would constitute a violation of the content of the EU Treaty provision that regulates the withdrawal process of a Member State.

Q: Is the ECJ preliminary ruling on Article 50 TEU binding for the United Kingdom?

A: On December 10th, the European Court of Justice delivered a trascendental ruling on the nature of Article 50 TEU (Treaty on the European Union) concerning the right of the notifying State to unilaterally revoke its action to withdraw and remain as a Member State. A judgement that relies on the consideration that a “notification by a Member State of its intention to withdraw does not lead inevitably to the withdrawal of that Member State from the European Union”.[56] This point heavily supported the argument that “revocation… reflects a sovereign decision by that State to retain its status as a Member State of the European Union”, subject to the condition that it cannot “be forced to withdraw from the European Union against its will”.[57] Therefore, “revocation….must...be unequivocal and unconditional”, and shall respect “constitutional requirements” to bring “withdrawal procedure to an end”.[58]

In other words, what is questioned is the possibility to revoke the notification from the UK, as an EU Member State, that expresses its desire to withdraw from the Union. Despite being considered as “merely a preparatory act”, it is the instrument that initiated proceedings provided in Article 50 TEU.[59] Notably, it includes, first, the general expectation on negotiations to take place between the Union and the State, and, second, the need to reach to an agreement before formally exiting the Union on the future relationship after withdrawing. However, this provision do not stipulate any condition that denies nor authorizes a Member State to revoke its notification to withdraw. For this reason, we may question whether a right of unilateral decision is possible to be exercised.[60]

Having explained the background, we shall take into consideration the answer given to the last question. Herein, the Court of Justice of the European Union responded to a request for a preliminary ruling (Article 267 TFEU), which consists of an act of primary law to interpret a provision of an EU Treaty (Article 50 TEU). Indeed, Article 267 TFEU does not impose any obligation on Member States judges when referred to the resolution of their pending cases based on the answer delivered to their request for preliminary rulings. However, the ruling may be binding, because UK courts “are obliged… (ii) to refer unclear points of EU law to the Court of Justice…”.[61] It could be true that, if the interpretation proves meaningful and irreplaceable for the judge to issue its judgement, it may be considered that “it should not be presumed that the Treaty interferes with the exercise by a member state of its sovereign powers”, thus, the ruling would continue to be binding as it informs and offers the judge an answer to its concerns on EU law.[62]

Taking into consideration the obligation of UK judges to “to interpret EU Treaties, Regulations and Directives in accordance with decisions of the Court of Justice”.[63] Hence, ECJ judgement on the content of Article 50 TEU becomes a binding, and, ergo, effective decision after it is delivered. As a result of that, the Court cannot simply dismiss or displace its relevance to the nature of the dispute brought to its attention, as it concerns the applicability of a right contained in a provision of primary law.

Q: What is the so-called “Northern Ireland or Irish backstop”?

A: On December 13th, the European Council responded firmly and clearly to the request made by Prime Minister Theresa May, stating in its meeting conclusions that a renegotiation on the terms of the Withdrawal Agreement is not in order.[64] Nevertheless, their determined response does not exclude their willingness to prevent a no deal scenario whatsoever.[65] An intention reaffirmed in the language of their conclusions, referring herein to the temporary status of the Northern Ireland backstop and the spirit of good faith to cease its application under the condition both parties offer sufficient guarantees that ensure the celebration of a post Brexit agreement.[66]

On November 25th, the European Council agreed on the conditions outlined from the Withdrawal Agreement and the Political Declaration on the Framework for the Future Relationship between the United Kingdom and the European Union.[67] From that day onwards, British Members of Parliament, including but not limited to eurosceptics or hardline Brexiteers, raised concerns on the question of the so-called backstop and the limited sovereignty the United Kingdom would hold in the event of a no Agreement scenario after withdrawal from the EU (the transition period).

The word backstop means the “thing placed at the rear of something as a barrier or support”.[68] Nevertheless, it holds a different meaning as interpreted by the European Union, that perceives it as the “insurance policy to prevent a hard border on the island of Ireland”.[69] The latter despite neither of the parties to the Agreement, the EU nor the UK, intend to establish it indefinitely.[70]

The specific content of the backstop lies down in provisions governing the applicability of EU regulations and jurisdiction on trade in Northern Ireland if both the United Kingdom and the European Union fail to achieve a subsequent agreement before November 20th, 2020.[71] It covers a wide range of subjects, namely, the individuals rights’ (Article 4), the provisions governing the Common Travel Area and the single customs territory (Articles 5 and 6), as well as others referring to trade (Articles 7 to 12), the political cooperation (Article 13) and the rules governing the implementation of the backstop (Articles 14 to 20).

Q: Is it justified, according to international law, to establish such a provision governing the relations between the UK and the EU after a transition period until an agreement is reached?

A: As acknowledged by the UK Attorney General on its legal advice over the Protocol, it “is part of an international agreement that is binding on the United Kingdom and the European Union in international law and must be performed by them in good faith”.[72] A condition reaffirmed after considering both Article 5 (good faith) and 184 (negotiations on future relationship) of the Withdrawal Agreement, including Article 2.1 of the Protocol (use of best endeavours to conclude an agreement on future relationship).

By virtue of Article 3 of the Vienna Convention on the Law of the Treaties 1969, the Withdrawal Agreement (including the Protocol), despite not being an international agreement between States, is bound to its rules to the extent the Agreement is subject to rules of international law.[73] Under this Convention, if both parties have negotiated in good faith, and with willingness, then no reason exists to question the applicability of the content of that Agreement.[74] As a result, the principle of pacta sunt servanda or the obligation to perform in good faith the Agreement reigns in this case, because the State would have expressed “its consent to be bound by that Treaty”.[75]

As a result, the United Kingdom, if willing to ratify the content of the Agreement that includes the Protocol, will express to the international community (notably, to the European Union) its consent to be bound by the Agreement in its entirety (including the Protocol that enters into force after the end of the transition period). It shall be likewise taken into consideration that the United Kingdom cannot unilaterally supersede or revoke the application of the Protocol or backstop unless it ensures in the new agreement with the EU to the Joint Committee that the Good Friday Agreements (or Belfast Agreements) and related regulations are respected and ensured.[76] Because EU treaties (including the protocols annexed to the TFEU concerning directly to the United Kingdom and the Treaty of Accession 1972 obligations) would no longer be applicable to the UK after officially leaving the European Union, the new agreement safeguards the law regulating the new relationship (UK-EU-Ireland).[77]

Moreover, because the United Kingdom “do not participate in all the provisions of the Schengen acquis” and is not a party to the Schengen Agreements of 1985 and 1990, its obligation to create “an area without internal frontiers in which the free movement of goods, persons, services and capital” faced certain limitations according to Protocol No 20.[78] Owing to that status quo or state of affairs, a failure to ratify the incumbent Withdrawal Agreement (including the backstop) would derive in the implementation of a hard border between Northern Ireland and the Republic of Ireland. The latter explains because the Common Travel Area applied as a consequence of EU treaties direct effect in the relation between two Member States with regard to Article 26 TFEU-[79] Thus, as a third state from the moment it fails to ratify the Withdrawal Agreement, according to Article 50.3 TFEU, it would not immediately hold any right benefiting from the free movement between Northern Ireland and Ireland. Consequently, it will then have to reach new agreements under a new separate framework to avoid actions contrary to the obligations established in the Good Friday Agreements. In brief, the implementation of the backstop ensures to both parties the fulfilment of the obligations assumed, reducing uncertainty in the legal situation of the border area between UK and Ireland.

Under the main objective to “avoid a hard border and protect the 1998 Agreement in all its dimensions”, the Protocol presumes the “negotiations will result in an agreement”, as it provides the possibility to extend the transition period in case the Agreement is not yet achieved before the end of the transition (from March 20th 2019 to December 31st 2020).[80] However, taking into consideration it is based on Article 50 TEU, if both parties fail to ratify the Agreement for its entry into force on the agreed deadline, the general rule of Article 50.3 TEU (two years after notification was delivered to the Council) will apply unless an extension is agreed.[81] The only possible outcome, apart from materializing the provision to commit to resolve the issue before the end of the transition period, for the backstop to not enter into force would be the no Brexit deal scenario. Having said that, after considering the legal and social implications it may originate, it is highly unlikely and unadvisable to follow. The latter because it could enter into conflict with another obligation under international law, where the UK is bound to honor its “solemn commitment to support, and where appropriate implement, the provisions of the Multi-Party Agreement” with the Republic of Ireland according to the principle of pacta sunt servanda enshrined in the 1969 Convention.[82]

To conclude with, if the United Kingdom commits expressly to respect the obligations arising from the Agreement, endorsing its commitment during negotiations since 2017, the backstop would only be applicable in its entirety if both parties fail to fulfil its provisions. In other words, we should bear in mind that the United Kingdom, as a party to the Good Friday Agreements, jointly with the Republic of Ireland, which remains a Member of the European Union, are both bound to ensure the obligations established therein with regard to the question of achieving a lasting peace in Northern Ireland. Relying on the reasons expressed above, the lawfulness of the backstop falls into two main elements. Firstly, into the validity of the Agreement (including the Protocol) as bound to both the UK and EU, if both parties commit to obligate themselves without coercion to fulfil its terms under the TEU regulations. Finally, into the primary obligation to make effective the commitment to implement the terms as agreed previously on the Good Friday Agreements which, unless denounced or terminated, continue to bound the UK and Ireland.

Final remarks

Brexit served as a reminder about the permanent conflict existing between three subjects: the ones who elaborate laws, the ones who enact and implement laws, and the ones who apply and enforce the application of laws. Being unable to harmonise their intervention altogether caused the creation of uncertain and ambiguous pathways, wherein any attempt by politically driven reasons to influence legally binding effects of a law or instrument resulted in the threat of confrontation.

When it comes to the political aspect of Brexit, it is clear that the British public and political class are deeply divided on the issue. Many options have been discussed and/or discarded already, but it seems like there is no easy way out and nobody knows for sure how and when this crisis will end. We can only hope that whatever happens relations between the people of Britain and Europe will be as close as they have been so far.

[1] Heather Stewart,‘Theresa May defeats Tory coup over Brexit deal but is left damaged’,The Guardian https://www.theguardian.com/politics/2018/dec/12/theresa-may-defeats-leadership-challenge-by-83-votes [Accessed 13th December 2018].

[2] Rachel Wearmouth, ‘Labour and DUP Hold Talks As Corbyn Plots Brexit No Confidence Motion ‘Before Christmas’ ‘, Huffington Post UK https://www.huffingtonpost.co.uk/entry/labour-dup-corbyn-no-confidence-motion_uk_5c114367e4b0ac53717b59cf?utm_hp_ref=uk-politics [Accessed 13th December 2018].

[3] Dan Sabbagh, ‘What happened in previous Tory leadership challenges?’, The Guardian https://www.theguardian.com/politics/2018/dec/12/what-happened-in-previous-tory-leadership-challenges [Accessed 13th December 2018].

[4] David Storey, ‘Witness: Thatcher’s dramatic 1990 fall-”Stabbed in the front” ‘, Reuters https://www.reuters.com/article/us-britain-thatcher-fall/witness-thatchers-dramatic-1990-fall-stabbed-in-the-front-idUSBRE9370IF20130408 [Accessed 13th December 2018].

[5] ‘Brexit: EU says no to May on renegotiating deal’, BBC News <https://www.bbc.com/news/uk-politics-46560807 > [accessed 14th December 2018].

[6] Nicol Degli Innocenti, ‘Brexit, May rinvia il voto in Parlamento per evitare la disfatta. Giù la sterlina. Otto scenari possibili’, Il Sole 24 Ore <https://www.ilsole24ore.com/art/mondo/2018-12-10/brexit-parlamento-il-no-8-scenari-londra-il-voto--090534.shtml?uuid=AEDx42wG > [accessed 14th December 2018].

[7] Catherine Haddon, ‘Labour talk of forming a minority Government is unrealistic-for now’, The Guardian <https://www.theguardian.com/commentisfree/2018/nov/22/labour-minority-Government-brexit-jeremy-corbyn-general-election > [accessed 14th December 2018].

[8] Jonathon Read, ‘New poll finds majority support a People’s Vote’, The New European <https://www.theneweuropean.co.uk/top-stories/new-fti-consulting-poll-on-brexit-and-britains-future-with-eu-1-5803854 > [accessed 14th December 2018].

[9] Jessica Elgot, ‘Brexit study finds significant decrease in diehard leave backers’, The Guardian <https://www.theguardian.com/politics/2018/dec/11/brexit-study-finds-significant-decrease-in-diehard-leave-backers > [accessed 14th December 2018].

[10] Chloe Chaplain, ‘People’s Vote: full list of 53 MPs who have publicly backed a second Brexit referendum’, i News <https://inews.co.uk/news/brexit/peoples-vote-2nd-brexit-referendum-eu-mps-support-full-list/> [accessed 14th December 2018].

[11] ‘Cabinet 'contemplating second referendum' after Theresa May's Brussels showdown leaves Brexit deal stricken’, ITV News <https://www.itv.com/news/2018-12-15/theresa-may-pushes-on-with-brexit-agenda-after-tough-eu-summit/ > [accessed 15th December 2018].

[12] Guy Faulconbridge,’It's my deal, no deal or no Brexit at all: UK PM May’, Reuters <https://www.reuters.com/article/us-britain-eu-may/its-my-deal-no-deal-or-no-brexit-at-all-uk-pm-may-idUSKBN1O50S7 > [accessed 14th December 2018].

[13] Degli Innocenti, ‘Brexit, May rinvia il voto in Parlamento per evitare la disfatta. Giù la sterlina. Otto scenari possibili’.

[14] Severin Carrell, ‘ Brexit: May rules out revoking article 50 after ECJ ruling’, The Guardian <https://www.theguardian.com/politics/2018/dec/10/uk-can-unilaterally-stop-brexit-process-eu-court-rules > [accessed 14th December 2018].

[15] Adam Payne and Adam Bienkov, ‘What is the Norway model?’, Business Insider UK <https://www.businessinsider.com/what-is-the-norway-model-brexit-2018-4?IR=T > [accessed 15th December 2018].

[16] Andrew Woodcock, ‘Brexit news: Growing number of voters want 'soft EU exit' like Norway’, Daily Mirror <https://www.mirror.co.uk/news/politics/brexit-news-growing-number-voters-13398741 > [accessed 15th December 2018].

[17] Payne and Bienkov, ‘What is the Norway model?’.

[18] George Trefgarne, ‘ “Norway for now”: how we can avoid a botched Brexit’, Money Week <https://moneyweek.com/494843/norway-for-now-how-we-can-avoid-a-botched-brexit/ > [accessed 16th December 2018]

[19] Ibid.

[20] Payne and Bienkov, ‘What is the Norway model?’.

[21] Jessica Elgot, ‘Theresa May rules out Norway-style Brexit compromise with Labour’, The Guardian <https://www.theguardian.com/politics/2018/nov/30/theresa-may-rules-out-norway-style-brexit-compromise-with-labour?CMP=fb_gu > [accessed 16th December 2018].

[22] Jessica Elgot, ‘Norway-style Brexit option can’t be considered, Corbyn tells MPs’, The Guardian <https://www.theguardian.com/politics/2018/may/14/norway-style-option-after-brexit-cant-be-considered-corbyn-tells-mps > [accessed 16th December 2018].

[23] Jeremy Corbyn, ‘Labour could do a better Brexit deal. Give us the chance’, The Guardian <https://www.theguardian.com/commentisfree/2018/dec/06/jeremy-corbyn-general-election-brexit-labour-theresa-may > [accessed 16th December 2018].

[24] Thorfinnur Omarsson, ‘Frequently asked questions on EFTA, the EEA, EFTA membership and Brexit’, European Free Trade Association <http://www.efta.int/faq > [accessed 16th December 2018].

[25] Patrick Wintour, ‘Norwegian politicians reject UK's Norway-plus Brexit plan’, The Guardian <https://www.theguardian.com/politics/2018/dec/07/norwegian-politicians-reject-uks-norway-plus-brexit-plan?CMP=fb_gu > [accessed 16th December 2018].

[26] Ursula F. Ott and Pervez N. Ghauri, ‘How a ‘Ukraine-plus’ Brexit deal could solve Theresa May’s problems’, The Conversation <https://theconversation.com/how-a-ukraine-plus-brexit-deal-could-solve-theresa-mays-problems-107297 > [accessed 16th December 2018].

[27] PPERA 2001, section 101, clause 1.

[28] Code of Good Practices on Referendums 2007, section III, clause 1.

[29] European Union Referendum Act (EURA) 2015, section 1, clause 1.

[30] EURA 2015, section 1, clause 4.

[31] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, para 119

[32] Miller, para 121.

[33] Wightman and others v. Secretary of State for Exiting the European Union [2018] CJEU, para 64.

[34] Code of Good Practices on Referendum 2007, Section II, clause 2, incise c).

[35] Miller, para 124.

[36] Ibid., para 120.

[37] Ibid., para 124.

[38] Miller, para 125.

[39] Ibid., para 126.

[40] Second Treatise on the Civil Government, para 150.

[41] Locke, para 151.

[42] Miller, para 77.

[43] Ibid., para 78.

[44] Wightman and others, para 50; see Miller, para 124; Wightman and others, paras 58-59.

[45] Wightman and others, para 64.

[46] Cerezo de Diego, p. 1163. In Diez de Velasco, Manuel (2010). Instituciones de Derecho Internacional Público. Madrid: Tecnos.

[47] Costa v. ENEL, [1964] CJEC, para 8, page 593.

[48] Costa v. ENEL, para 7, page 593; and Wilhelm and others v. Bundeskartellamt [1969] CJEC, para 6, page 14.

[49] Lord Bridge of Harwich opinion, Regina v. Secretary of State for Transport, ex parte: Factortame Ltd and others [1990] UKHL 13, para 3.

[50] Costa v. ENEL, para 13, page 594.

[51] Estonia v. Commission of the European Communities [2009], CJEC, para 106; Austria v. Council of the European Union [2003], CJEC, para 62.

[52] Miller, para 60.

[53] Miller, para 63; Costa v. ENEL, para 12, p. 594.

[54] Miller, para 66.

[55] Ibid., para 62.

[56] Wightman and others v. Secretary of State for Exiting the European Union, para 69.

[57] Ibid., paras 59 and 65.

[58] Ibid., paras 74, 73 and 75.

[59] Shindler and others v. Council of the European Union [2018] CJEU, para 73.

[60] Costa v. ENEL, page 594.

[61] Miller, para 64.

[62] Lord Jauncey of Tullichettle opinion, Regina v. Secretary of State for Transport, ex parte: Factortame Ltd. and others, UKHL 13, para 20.

[63] Miller, para 64.

[64] European Council conclusions 13 December 2018 (EUCO 13/12), clause 1.

[65] EUCO 13/12, clause 2.

[66] Ibid., clauses 3 and 4.

[67] European Council conclusions 25 November 2018 (EUCO XT 20015/18), clauses 1 and 2.

[68] https://en.oxforddictionaries.com/definition/backstop

[69] EUCO 13/12, clause 2.

[70] Protocol on Ireland/Northern Ireland, Preamble, para 5

[71] Ibid., Preamble paras 5 and 6; Article 1.3; Protocol, Article 2.

[72] Legal Effect of the Protocol on Ireland/Northern Ireland, 13 November 2018, para 3.

[73] Convention on the Law of the Treaties 1969, Article 2.1.a

[74] Ibid., Articles 48 to 52.

[75] Ibid., Article 26 and Article 2.1.b.

[76] Protocol, Article 2 and Article 20.

[77] Article 50.3 TEU.

[78] Protocol No 19, Preamble, para 4; Protocol No 19, Article 1; Article 26 TFEU.

[79] Protocol No 20, Article 2.

[80] Protocol, Article 1.3; Legal Effect of the Protocol on Ireland/Northern Ireland, 13 November 2018, para 13.

[81] Ibid., Preamble, para 4.

[82] Also referred to as the Northern Ireland Peace Agreement 1998, Article 2.