Article 50 notification
Following the recent Supreme Court decision that the UK Government cannot invoke Article 50 without first obtaining the approval of Parliament, the Government published the European Union (Notification of Withdrawal) Bill, which, if passed by Parliament, will provide the required authorisation.
The Government’s aim is for the Bill to be passed in time for it to trigger Article 50 by the end of March and this is expected to be achieved. The Bill was debated by Parliament on January 31 and February 1 and MPs voted for its second reading, with the third reading expected to take place on February 8.
The Labour Party has stated that it will not block the triggering Article 50 but has, along with other opposition parties, tabled amendments to the Bill including amendments that would seek to constrain the Government in its negotiations. The extent to which any such amendments succeed will be determined over the course of next week.
However, some of the opposition to the triggering of Article 50 has been reduced as a result of the Prime Minister’s recent announcement that the Government will produce a White Paper in relation to its Brexit strategy as well as allowing Parliament to vote on the final deal that the UK reaches with the EU.
The Government’s Brexit White Paper
In particular, the White Paper elaborates on the UK Government’s 12 guiding principles for the forthcoming negotiations, namely:
- “Providing certainty and clarity”: The Government has previously announced it will introduce a Great Repeal Bill to convert EU law into domestic law. While our previous blog post identified potential difficulties with this approach, the Government has now made clear that a separate White Paper will be published on the Great Repeal Bill, which will include how the Bill will “enable changes to be made by secondary legislation to the laws that would otherwise not function sensibly once we have left the EU…”.
- “Taking Control of our own laws”: Although the White Paper reiterates the Government’s aspiration no longer to be subject to the jurisdiction of the CJEU following Brexit, it is of note that the Government now proposes a new dispute resolution mechanism to operate between the UK and the EU, perhaps akin to the dispute resolution provisions within CETA or similar international agreements.
- “Strengthening the Union”: Although the recent decision of the Supreme Court made clear that the devolved administrations will not be able to exercise a veto over Brexit, the White Paper states that the UK Government will nevertheless work with the devolved administration and ensuring they are fully engaged in the preparations to leave the EU. The extent to which the devolved administrations consider the Government’s engagement sufficient remains to be seen.
- “Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area”: The White Paper stresses the UK’s aim to have as seamless and frictionless a border as possible between Northern Ireland and Ireland to protect reciprocal treatment of each other’s nationals once the UK has left the EU – something which the Irish Government is also in favour of.
- “Controlling immigration”: The White Paper states that the Government will ensure businesses and communities have the opportunity to contribute their views to help them understand the potential impact of any proposed changes. It also suggested that there may be a phased process of implementation to prepare for the new arrangements to give businesses and individuals enough time to plan and prepare those new arrangements.
- “Securing rights for EU nationals in the UK and UK nationals in the EU”: The White Paper highlights that the Government has not been able to reach an agreement with the EU Member States to secure the status of those EU citizens residing in the UK and those UK citizens currently in the EU during pre-negotiations. However, it stresses that this remains an early priority for the Government to seek to reach a reciprocal agreement with the member states at the earliest opportunity.
- “Protecting workers’ rights”: According to the White Paper, the Great Repeal Bill will maintain the protections and standards that currently benefit workers. The White Paper also stresses that the Government is committed to enhance those rights.
- “Ensuring free trade with European Markets”: The White Paper repeats the Prime Minister’s assertion that the UK will cease to be member of the single market following Brexit, but will seek to secure “the freest and most frictionless trade possible in goods and services between the UK and the EU”. The Government’s wish is that this be achieved by a new comprehensive FTA and a new customs agreement. The White Paper specifically addresses financial services, a subject which received little mention in the Prime Minister’s speech. In particular, the White Paper articulates the objective of securing “the freest possible trade in financial services between the UK and EU Member States” (para.8.25).
On the question of trade more generally, it is also of note that the Government has now made express reference to the importance of judicial co-operation, stating that: that “We recognise that an effective system of civil judicial cooperation will provide certainty and protection for citizens and businesses of a stronger global UK” (para.4.19). This issue has been addressed in previous blog in relation to jurisdiction, enforcement and service of process.
- “Securing new trade agreements with other countries”: The Government has again expressed a clear policy for the UK to establish itself as a global trading nation. However, as noted previously, concluding FTA negotiations with third party states might prove to be challenging as those countries will wait for the agreement with the EU to be concluded before agreeing to any bilateral deal and there are political and legal constraints on the UK negotiating those agreements before exiting the EU.
- “Ensuring the UK remains the best place for science and innovation”: The White paper states a commitment for the UK to remain at the forefront of science and innovation and to continue to work closely with European partners. The implications of the Government’s approach for life sciences were discussed in our previous blog post following Theresa May’s speech.
- “Cooperating in the fight against crime and terrorism”: The Government pledges to continue to “work with the EU to preserve UK and European security, and to fight terrorism and uphold justice across Europe”.
- “Delivering a smooth, orderly exit from the EU”: The White Paper repeats the UK Government’s aspiration for a “phased process” to implement the UK’s withdrawal from the EU. This issue was discussed in more detail in our previous blog post.
The next steps
Assuming that Article 50 is triggered by the end of March 2017, the next stage will be the commencement of negotiations. It will only be then that the extent to which the UK Government is successful in achieving its objectives will start to become apparent.