The debate that has surrounded the case of R (Miller) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin), in both the High Court and the Supreme Court, has put the legal issues relating to Brexit on centre stage. For lawyers and those committed to the rule of law it has not been a comfortable experience. The nadir for me was to listen to a minister of the Crown criticise Ms Miller for having, as one of the Queen’s subjects, the audacity to seek to enforce her legal rights in the Queen’s courts. He said it was ‘unacceptable’. At the time she was in receipt of death threats and the judges who had ruled in her favour at first instance were being subjected to vitriolic and entirely unjustified abuse for acting independently and without fear or favour in accordance with their oaths of office. I regret that the government did next to nothing to disassociate itself from these attacks.
Whatever the result of the Miller case in the Supreme Court, legal issues cannot be removed from the consequences of the Referendum outcome, however much some people seem to believe they should. Triggering Art 50, whether done by an exercise of the royal prerogative or by statute, and then leaving the EU is going to impact on every person and business in our country. The best estimate is that there are now at least 40,000 legal acts, 15,000 court verdicts and 62,000 international standards binding on us by virtue of EU membership. It affects private rights such as intellectual property and data protection, as most compellingly illustrated by the case brought by Tom Watson and the now Secretary of State for Brexit, David Davis, which is still before the European Court of Justice (ECJ). Then there are all those other areas of the ‘acquis communautaire’ that confer rights on us as EU citizens, in areas such as freedom of movement and of capital and rights of establishment, voting rights for the EU parliament, anti-discrimination laws, competition law and human rights.
A Parliament worth its name
It is not to show disregard of the clearly stated wish of a majority of the voting electorate for us to leave the EU, to note that such matters of detail did not exactly feature prominently in the Referendum. It has to be for Parliament to consider such issues and question the government on its strategy as to how these rights and obligations will be preserved, altered or unravelled. It does appear somewhat ironic that many of those who have been most vociferous in arguing for the restoration of national sovereignty are now the ones willing to most readily abandon these parliamentary rights when it suits their political agenda. But for Parliament to do this would be a marked shift away from representative democracy to something for which our unwritten constitution has no precedent to set ground rules. There must therefore be a risk that as Brexit proceeds, any variance of view between government and Parliament is masked, which will simply lead to a crisis further down the road. I understand the anxiety of the government that its negotiating strategy with the EU should not be undermined, but its original approach was not realistic. No Parliament worth its name can readily abandon input into the biggest constitutional change in modern times which is what in practise the negotiation is going to be all about. I am pleased that there now appears to have been a change of approach on the matter and that the government will now publish and debate in Parliament a plan before Art 50 is triggered. By securing parliamentary support for its approach it will enhance its authority in the negotiating process.
But triggering Art 50 only starts the process. The government has then promised us a ‘Great Repeal Bill’ which far from repealing anything much, intends to convert swathes of EU law into our national law to ensure legal continuity on the day we depart. This is undoubtedly essential, but it does not of itself answer the needs of UK based businesses. Any with an interest in trading or operating in the EU, want to ensure they can continue doing this without new obstacles after Brexit. That requires a decision by the government as to the extent if any it wants to negotiate a new treaty or treaties with the EU and linked to it the extent it wishes to see UK legislation after Brexit mirror the development of EU regulation and Directives so as to maintain conformity and enable any new treaty to function.
'Hard' vs 'soft' Brexit
It is this question which lies at the heart of the current debate over ‘hard’ and ‘soft’ Brexit. There is no basis for suggesting that the Referendum can have answered this question as it was not and could not readily be put. In any event the final outcome is not in the government’s gift, unless it intends to leave the EU with no attempt at creating any framework at all for subsequent relations. Even if our decision were to be to move to a World Trade Organization (WTO) relationship on all matters it would require the disentangling of our membership from the EU membership of the WTO and a negotiation with the 163 other WTO members to settle our new terms which could be disrupted by any of them, including the EU itself, if we have not established a common position with it. Other possible relationships, such as a Norway model are going to require fresh legislation and a framework to ensure continuing harmonisation of regulatory structures. How any of this can be done within the two year period for our departure remains unclear.
The EU is primarily a treaty about creating a single market. But that does not mean that Brexit can be neatly compartmentalised away from our interests in other areas on which the EU has an impact. A prime example of this lies in the field of serious crime and counter-terrorism. The Prime Minister has made clear her wish that we should continue to be involved in the information sharing and operational co-ordination from Europol and the Schengen information system, the European Arrest Warrant, mutual recognition in criminal matters and harmonisation of criminal procedure. But all this will have to be negotiated as well. It must also mean, at the end of the day, that, decisions of the ECJ and EU law in these areas, as interpreted by that court will continue to impact on us even if the ‘direct effect’ of EU law is removed.
Confronting and discussing the challenge
Thus the consequences of the Referendum vote is that we have taken on a task fraught with legal complexity as well as with economic risk even if, as the Brexiters insist, there may also be opportunities. To address this we are going to have to move away from the mythologising of the doctrine of parliamentary sovereignty and ‘being in control’. For all sovereignty is constrained domestically by the Rule of law and conventions based on moral principles and internationally by the reality that our economic, physical and ethical wellbeing is rooted in international engagement which requires the creation and observance of international law. In the coming months we are going to have to keep all these well in mind and ensure their implications are understood through debate and discussion, if we are to get through the challenges that Brexit compels us to confront and further the wellbeing of our country.
Contributor Dominic Grieve QC MP