Brexit Flashcards
3 Main provisions in Art 50 TEU
- MS who wish to withdraw decision to withdraw can be made by national law, but must notify EU and agree a withdrawal agreement for both arrangements and framework for future relationship. Negotiated by qualified majority by Council after obtaining consent of Parliament
- 2 year time limit after notification unless unanimous agreement to extend
- rejoining is governed by Art 49
Does the withdrawal agreement need to be concluded by MS?
No just UK-EU
European Council Guidelines on phased negotiation
sufficient progress must be made on exit agreement to make future relationship agreement.
Does the future relationship agreement need to be concluded by MS? Why/Why not?
Yes because affects their rights very widely.
Why does the Executive require statutory approval to trigger Art 50? (name a case) (Pre-Miller)
De Keyser - where Parliament has legislated on an issue, executive could not rely on prerogative concerning the same subject matter.
But is De Keyser applicable here? exercising Art 50 does not affect the EC Act 1972, nor does the EC Act provide for withdrawal.
3 Main Findings in Miller
Unless primary legislation permits it, Royal Prerogative does not enable ministers to change statute or common law.
Conduit pipe incorporating EU law as a new, independent, and overriding source of national law. Ministers were permitted to change the flow, but not permitted to shut it off entirely.
UK domestic law will change if Art 50 is exercised through the UK ceasing to be party to Treaties.
Posonby Rule (s 20 Constitutional Reform and Governance Act 2010)
Constitutional statute (HS2)
If Parliament resolves in 21 days that international treaty should not be ratified, it is unlawful to do so.
Why is EU (Withdrawal) Bill problematic?
Unwanted parts of EU law will be invalidated. This is done by Parliament directly for major rules, but done via statutory instruments for lesser. Criticized as Henry powers.
What happens to EU derived domestic legislation under the EU (Withdrawal) Act 2018 after Brexit?
Continues to apply
What happens to directly applicable EU legislation after Brexit under 2018 Act?
Forms part of domestic law.
What happens to rights, liabilities, etc. under s. 2(1) ECA under 2018 Act?
Continue to be enforced
What if the UK courts have a question about the interpretations of retained EU law after Brexit?
To have regard to retained case law, but Supreme Court is not bound by it.
What did MP Dominic Grieve’s Amendment 7 to Clause 9 of the Withdrawal bill and thus s.9 of the Act?
MPs power to implement secondary legislation for the purposes of implementing withdrawal agreement were made subject to Parliament having enacted a statute approving final terms of withdrawal.
Principle in Wightman v Secretary of State for Exiting the EU
Executive government is free to unilaterally revoke their notification to leave under Art 50 unless the 2 year period and extensions have not elapsed (if agreement has not been concluded) or if agreement has been concluded, if a withdrawal agreement has not entered into force
Must be decided by democratic process according to national requirements.
