Brexit and constitutional complexities are mounting for the UK, warn legal experts

Mark Mckergow reports for CommonSpace on a recent seminar in Edinburgh looking at the huge legal and constitutional issues prompted by Brexit

AWARENESS of the legal and constitutional issues raised by Brexit is growing, with little as yet in the way of response from the UK Government. 

This was the message from a seminar a few days ago on 'Brexit and Scotland: Implications for law and government' at the Faculty of Advocates in Edinburgh, supported by the Scottish Centre on European Relations (SCER).

Aidan O’Neill QC likened Brexit to a Buster Keaton film, where a train is speeding towards a gorge from which the bridge has been removed. The only hope for Scotland, he said, was to attempt to decouple its carriage and change the points to a safer route. 

Aidan O’Neill QC likened Brexit to a Buster Keaton film, where a train is speeding towards a gorge from which the bridge has been removed.

O’Neill stirred the room by asserting that Brexit was an attempt to "make politics trump law". But politics can’t trump law, at least in a civilised society.

O’Neill drew attention to the use of bilateral investment treaties (BITs), little-known agreements between countries which protect investments from political interference. The UK currently has 94 of these in force with countries from Albania to Zimbabwe, allowing for remedy to be sought via arbitration in the event of changing circumstances – such as investing in Cuban tobacco in 1955 and then finding a revolution had swept up the assets. 

"It was democratically decided" is no defence – so the UK could face potential unknown liabilities after Brexit as investors who banked on access to the EU single market count their losses.

David Martin MEP, Joanna Cherry QC MP and SCER director Kirsty Hughes addressed the political outlook, which is, of course, politically challenging for Scotland. Though there is considerable support and sympathy for Scotland’s position, the EU institutions cannot propose differentiated solutions for Scotland; this must come from the UK Government as the member state concerned. 

Martin’s paper with Alyn Smith MEP on variable geometry in the EU was widely praised as showing how such differentiated positions already exist within the EU – but how to get them onto the table?

"It was democratically decided" is no defence – so the UK could face potential unknown liabilities after Brexit as investors who banked on access to the EU single market count their losses.

Cherry, a member of the exiting the EU select committee at Westminster in the last parliament, praised committee chair Hilary Benn as having "the patience of a saint" in building unanimity from Leavers and Remainers for two reports; the third report proved too much for the Tories. 

She treasured the memory of being asked by Ken Clarke about which way the SNP was voting on an Article 50 measure, so he knew which way to walk. 

Hughes, one of the few speakers to explicitly raise the independence issue at the seminar, said that Scotland should be making its choice sooner rather than later. Should the SNP put energy into the Great Repeal Bill or spend more time trying to stay in the EU?

Professor Eleanor Spaventa from Durham University spoke about the challenges faced by EU citizens in Scotland. The EU has set up an ambitious negotiating position demanding that the rights of these citizens and their families be protected in their current form throughout their lives. 

There would be huge challenges in registering over two million EU citizens: providing evidence can be difficult for those in casual work, on zero-hours contracts or self-employed, and there is currently no requirement for minimum working hours in order to qualify. 

Though there is considerable support and sympathy for Scotland’s position, the EU institutions cannot propose differentiated solutions for Scotland; this must come from the UK Government as the member state concerned. 

Professor Spaventa pointed out a possible difficulty with the continuation of the common travel area with Ireland: as a member state, Ireland cannot treat citizens of a third country (as the UK will be) more favourably than EU citizens, which may mean careful finessing of policies.

Advocate Peter Sellar outlined how EU legal concepts had entered UK law practice and speculated on how things might evolve. The "sovereignty" promised in the UK white paper could not be backed up in law, as the UK would still be affected by EU legal decisions, and open to claims for "Francovich damages" (damages against a government for failing to implement EU law). 

He was not so much afraid of a cliff edge as a cliff-cliff-cliff-edge (the 'John Redwood' option) where the UK simply announced it was leaving and then left the same afternoon. This would leave the UK with no operational statutes in large areas of law. (This echoes back to O’Neill’s comments about politics seeking to trump law – as if correct and consistent law doesn’t really matter.)

The final session produced some of the most impactful contributions. Professor Drew Scott of Edinburgh University’s Europa Institute discussed how the sequencing of the talks matters, with the UK unlikely to benefit from the EU’s insistence on making sufficient progress on the exit agreement before starting talks on a future relationship. 

For example, the sequence makes it harder for the UK to barter concessions on the exit bill against future trade. The much-quoted World Trade Organisation (WTO) option is not self-evident – trade schedules would have to be agreed and then supported by two thirds of the WTO’s members, not a straightforward undertaking. In addition, a new dispute resolution mechanism would have to be built, it wouldn’t just happen.

There would be huge challenges in registering over two million EU citizens: providing evidence can be difficult for those in casual work, and there is currently no requirement for minimum working hours in order to qualify. 

Scott said that Theresa May had missed an opportunity to engage the "losers" in the referendum and build a consensus approach with her mishandling of the Joint Ministerial Committee (JMC), the forum for the devolved assemblies. 

The JMC mechanism demonstrably wasn’t working. He also questioned the curious phrase "British internal market" which had appeared in the UK Government white paper. Where had this come from? And if there were such a thing, then the institutions supporting an "internal market" should be adopted – across the territories of the market. 

He commended the recently produced Welsh Government paper, Securing Wales’ Future, which also demands single market membership and a role in the negotiations. 

Scott concluded that a new independence referendum would not be brought about by Brexit directly – rather, it would be precipitated by the constitutional crisis by the mishandling of relationships between the devolved administrations, the JMC and the UK Government.

This view was supported by the final speaker, former judge at the EU Court of Justice David Edward.

Scott said that Theresa May had missed an opportunity to engage the "losers" in the referendum and build a consensus approach with her mishandling of the Joint Ministerial Committee (JMC), the forum for the devolved assemblies. 

A self-styled "enemy of the people", Edward noted that leaving the EU was not like leaving a golf club, it was more akin to dissolving a partnership. He said there was a lot of scoffing at Westminster about differential positions, but they were common within the EU and indeed might be the only solution to the Irish border question.

Edward then noted that the Scotland Act, produced after the notorious "vow" in 2014, promised that the Scottish Parliament was a "permanent part of the UK constitution". That which was not reserved was devolved (unlike the situation in Germany, where the Lände (provinces) give their power to the central federation). 

He praised the Scottish Government document 'Scotland’s Place in Europe’, and dismissed the UK Government white paper as a "pamphlet". Edward signed off with three key points:

1.) The EU27 regards Brexit as a legal question.

2.) The UK Government considers it will deliver everything (on Brexit)

3.) "You don’t have to be a nationalist in any sense to be concerned at the constitutional propriety of what is being done."

It is interesting to wonder about where this prospective constitutional impropriety can be raised.

This was a very worthwhile day with some excellent speakers, and while very few answers were discovered, the list of pertinent questions grows and grows.

Picture courtesy of threefishsleeping

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