The implications of leaving the European Union…

I will be publishing three posts on the Landmark Brexit blog over the next week:

In the first post I suggest that the process for withdrawing from the EU will involve negotiating both a withdrawal treaty (ideally within two years) and some years thereafter a treaty establishing a future relationship between the EU and UK. There are no automatic consequences of leaving the EU. It is entirely a matter for negotiation and political decision as to how far the UK continues to harmonise and cooperate with the EU and its law or not.
In the second post I suggest there is no necessary substantive impact of Brexit on aspects of the UK planning system including for example on climate change policy, environmental impact assessment (EIA), strategic environmental assessment (SEA), habitats conservation or Aarhus. It is a matter for political decision and in part for negotiation whether UK planning and environmental law and policy diverges from or continues to harmonise with EU law following Brexit.
In the third post I suggest what I consider to be the most achievable and democratic terms for the withdrawal treaty. In my view the withdrawal treaty should effect a fairly narrow Brexit for a transition period so as to allow for informed consideration of the basis of a future relationship over many years. A future relationship can learn from the model afforded by Norway’s relationship with the UK. The UK should continue to harmonise its law with EU environmental law following withdrawal from the EU.

Post 1: The Withdrawal Process

Article 50 (1) and (2) of the Treaty on European Union provide (in part)
“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”

In my view this implies that the withdrawal process will involve broadly four stages:

The UK decides to leave the EU in accordance with its own constitutional arrangements (article 50(1)). This has not yet occurred.
The UK gives notice to the European Council of its intentions to leave the EU pursuant to article 50(2) of the TEU.
The EU will then negotiate and conclude a withdrawal agreement. This has to be agreed by qualified majority of the European Council (Heads of State); the threshold being roughly two thirds. It is implicit within article 50(2) that the withdrawal treaty will address the terms of withdrawal, but that a separate and subsequent treaty will have to address the future relationship with the EU. The likelihood is therefore that the withdrawal treaty will establish a transitional period and a set of transitional arrangements pending the conclusion of a future treaty or treaties establishing a new framework for relations between the UK and the EU. The withdrawal treaty will not of itself seek to establish that framework, but it will take it into account.
The future framework will then take many years to negotiate and a realignment of British legislation and policy will similarly take many years. The future framework will be subject to EU rules on agreements with third parties, and as such will need to achieve unanimous agreement.

Stage 1: Deciding to Leave pursuant to Article 50(1) TEU

Article 50(1) of the Treaty on the European Union provides that a member state may decide to leave the EU in accordance with its own “constitutional arrangements”. The provision, inserted into the Treaty by the Lisbon Treaty of 2007, was intended to clarify that it was possible to leave the EU, but it has never been deployed¹. No decision to leave the European Union has yet been made by the UK. There are currently joined legal challenges by Ms Miller and Mr Dos Santos concerning the question whether the UK’s constitutional arrangements require that decision to leave the EU to be made by parliament, or whether it can be made as an executive decision- as a matter of royal prerogative. A number of challenges emanating from Northern Ireland have also been reported. The arguments on the question of the prerogative are discussed by Hickman et al in a helpful article². It will be up to the courts to decide how the decision to leave is to be made, though for my part it seems to me to be unlikely that parliament does not need to be involved for this reason. Suppose that there had been no referndum. Would it have been “in accordance with the UK’s constitutional arrangements” for the prime minister to unilaterally notify the European Council that the UK was withdrawing from the EU? It seems to me the answer is “No”. If so, has the referendum broadened the ambit of the prerogative? No.
I understand that the two joined legal challenges concerning the taking of the decision are to be heard by the High Court in mid-October, following which judgment will be given and there will then most probably be an appeal, possibly a “leap-frog” appeal to the Supreme Court. This would leave open the possibility of an article 50 notification early next year.

Repeal of the European Communities Act 1972

Some of the leading proponents of Brexit such as MEP Daniel Hannan do advocate the repeal of the European Communities Act 1972 as the mechanism for achieving a clean break. The 1972 Act would have to be repealed (or more realistically amended) to give domestic legal effect to withdrawal, but that would be only upon the TEU and the Treaty on the Functioning of the European Union (the TFEU) ceasing to apply as a result of the article 50 process. There has been much debate and consideration of methods of leaving the EU apart from invoking article 50. I do not discuss them further here³.

The Effect of Leaving the EU: EU Treaties Cease to Have Effect

Sub paragraph (3) of Article 50 provides:
- “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
Accordingly, two years after initiating the article 50 process, the Treaties - defined in the preamble as the TEU and the TFEU - cease to apply. That is what withdrawal from the EU means (absent any alternative agreement). No state obligations under international treaties other than those two treaties are cancelled. The UK’s accession to the European Convention on Human Rights; its membership of the United Nations etc. are unaffected. Its ratification of the Aarhus convention is unaffected. Similarly, domestic legislation which implements EU law is unaffected by the Article 50 process: it would require specific parliamentary decisions to withdraw such legislation.

Stage 2: Negotiation of Withdrawal Treaty

It is an entirely open question as to what legal order will be negotiated to replace the TEU and TFEU once they cease to apply. Similarly it is a matter for the UK parliament to decide what domestic measures will accompany the process of leaving. Leaving on terms involving the continuation of the status quo are sometimes characterised as “soft Brexit”. “Hard Brexit” options are those whereby the UK would rapidly abrogate most forms of cooperation with the EU and seek to re-establish a relationship nearly from scratch. If the UK does not agree a withdrawal treaty and simply exits the EU at the end of the two-year period, then upon the EU treaties ceasing to apply, without any replacement or transitional treaty, all EU Directives and the supremacy of EU law, as well as the principles of direct effect and indirect effect will all cease to apply. But that is not going to happen: the extent to which such principles are in fact modified will depend upon what provision the withdrawal treaty makes as to these principles- and that is a matter which is entirely open to debate. Even in the event that the withdrawal treaty makes no transitional provisions, it seems to me likely that as a matter of domestic law, saving provisions will be passed to avoid a legal vacuum emerging.
A significant question in this regard - which will potentially impact on the withdrawal treaty - is the extent to which the UK remains in the single market. If it does, then it seems to me to be likely that the EU will require it to accept much of the acquis of European law, just as Norway does. I would anticipate (though this is speculation) that most environmental law would, in this case, be bundled in with the law that the UK is likely to adhere to. But even if the UK is not compelled to retain environmental law as part of the deal on the single market, there is no reason in principle why the UK should not continue to adhere to EU environmental law either completely, or to shadow it through domestic legislation. Whether it choses to or not is essentially a matter of political choice for the UK.
In the next post I will examine the impact of Brexit on UK Planning Law and Policy. I will argue that it is primarily a matter of choice for the UK whether it continues to harmonise with the EU on its environmental law.

¹While I assume that article 50 will be the process deployed, Professor Steve Peers describes four conceivable methods for leaving the European in his blog here as follows:

“However, this has not prevented many hard-line Brexiters claiming that Article 50 is not the only mechanism for extrication. The Vote Leave Roadmap considers that there are three main options for withdrawal. The first method suggested is use of the Article 48 TEU process for changing the treaties of the EU. The second suggestion is the Article 50 TEU process and the final suggestion was to rely on general public international law, specifically article 54 of the Vienna Convention of the Law of Treaties 1969. A fourth possibility also tentatively mooted, is for the UK to simply repeal the European Communities Act 1972 and replace it with new UK law.”

²Hickman et al

³See this Parliamentary briefing note of 30 June 2016 for a helpful discussion