Pannick on Brexit

In today’s Times, David Pannick QC adopts an argument of Barber, Hickman and King as to why an Act of Parliament is required before Brexit can take place. It is not correct and so needs to be addressed.

 

The argument is that as acting under Article 50 alone commits the United Kingdom to withdrawal it is thereby inconsistent with the European Communities Act. An Act cannot be overturned by an exercise of a government power (“Royal Prerogative”). An Act is required to overturn an earlier Act. As the European Communities Act incorporated EU law into UK domestic law, so an Act would be required to bring to an end such incorporation.

 

The European Communities Act incorporates EU law into the UK domestic law. This includes whatever EU law is “from time to time” (ie changes to EU law occurring after 1972). Article 50 of the Treaty on European Union is part of that law. The European Communities Act 1972 requires that Article 50 be given effect. If under EU law, EU law ceases to apply to the UK, the European Communities Act requires that this be given effect under UK domestic law. Once two years have elapsed (if not extended) following notice under Article 50, EU law ceases to apply to the United Kingdom. This notice can only be given by the government: Parliament itself is not an actor in international law.

 

So, not only is an Act of Parliament unnecessary to bring to an end the UK’s membership of the European Union, it is the European Communities Act itself that necessitates this conclusion. This conclusion is not only not inconsistent with the European Communities Act, it is required by it.

 

Put another way, it is simply an error to think that as an Act was required to incorporate EU law, so it is required to remove it. Once Art 50 has been followed, there is nothing to incorporate.

 

Barber, Hickman and King call analysis such as the above “formalistic”.  I would give it a different label. Legal.

 

 

 

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17 thoughts on “Pannick on Brexit

  1. Politically at this stage a vote may well be held anyway, for similar reasons to the recent votes on military action (which are also not legally necessary): because the government wishes to bind MPs publicly to the decision that they make and demonstrate that their decision is supported..

    • If the above interpretation holds, I would think there’d also be a strong argument for amending the ECA1972 in any case, if it is the case that EU law is automatically disapplied upon the culmination of the article 50 process by ECA1972 itself. I can’t imagine there are many people with expertise on the subject who want the entirety of EU law to cease to apply in the UK in one fell swoop rather than being subject to gradual appeal or amendment.

  2. This would suggest that your UK Parliament is not sovereign – and that any Prime Minister could hold a referendum to secure a decision supported by a minority of the electorate (the ‘Leave’ vote secured just over 37% of the electorate) to bypass Parliament and impose their will. So while your reading of the specifics of the EU situation may well be correct, is there not also a point to consider about whether a referendum result needs to be debated and agreed (or not) by Parliament? Otherwise it seems referendums provide a backdoor way of bypassing Parliament. Which is a worrying prospect if the UK ever ends up with a less benign person in No. 10.

      • What fun where there is no written constitution! Anyway, I am not aware that the legislation establishing the EU Referendum said anything about its effect on Art 50 or the 1972 Act. It would seem to be advisory in law. So say we get a Prime Minister Johnson who was able to persuade 37% of the electorate to turn up to vote for leaving the EU. He should then be entitled in law to take the UK out of the EU without a vote in Parliament in which the highest sovereignty is vested in any democracy? That would appear to me very dubious, both legally and politically.

    • So unlikely as to be impossible. I cannot imagine a situation where a referendum would, or could, be a) provided for, b) held, and c) acted upon without any scrutiny by Parliament or the Electoral Commission.

  3. Hmm . . . much of this discussion has focused on the ECA, but what about other legislation? Much UK legislation has been drafted on the assumption that we are and will remain an EU member-state. Perhaps an examination of statute may turn up something that is necessarily overturned by invoking Article 50.

  4. There is also the fact that article 50 and exit from the EU (or a different relationship) does not imply that ECA is repealed. It would give effect to EU law differently or perhaps not at all and would still be in force until amended or repealed.

  5. Isn’t there an anterior question to this analysis? Art 50(1) says “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. The decision has not yet been taken by the Member State. Does Parliament or government need to take the decision? In order to answer that we need to know what are the constitutional requirements that apply. That does not involve looking at the ECA. It involves considering whether prerogative powers can be used to make the decision in Art 50(1).

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