The Brexit Cyclone: EU Withdrawal Bill 2018 and White Paper on UK-EU Relations
In July 2016, in a historic referendum that shocked the world, the British public voted to leave the European Union. The UK Prime Minister, Theresa May triggered Article 50 of the Treaty on European Union (TEU) – which provides mechanism for the voluntary and unilateral withdrawal of a Member State from the EU – on 29 March, 2017. Just when one thought the Brexit “cyclone” had calmed down, Brexit hit the headlines again with resignations of its two key players over the recently published White Paper concerning the future relationship of the UK-EU, the contentious EU Withdrawal Bill 2018 and the statements of US President, Donald Trump which the press has apparently reported as “fake”. With heated debate and the seemingly endless saga that is Brexit, one keenly awaits the 29th of March, 2019, which is expected to be a remarkable day in the history of the EU and the UK and which will mark the unprecedented exit of the UK from the EU.
The European Union (previously called the European Economic Community) was created by the Treaty of Rome in 1957 with the aim of economic integration among the participating Member States. The United Kingdom joined the EU in 1973 by enacting the European Communities Act 1972 – regarded as one of the constitutional instruments of the UK in the case of R (Miller & Dos Santos) v Secretary of State for Exiting the European Union (2017) – giving up the supremacy of their Parliament while giving precedence to EU law over UK’s domestic law. Controversy surrounding the relationship between the UK and EU is well illustrated by the landmark case of R v. Secretary of State for Transport, Ex parte Factortame Ltd. (1991) famously known as Factortame. The case has radical constitutional implications in the UK since the national court set aside an Act of its own Parliament which contravened Union law. Since primacy was attributed to EU law in preference to domestic law, it challenged the UK’s long held constitutional principle of parliamentary sovereignty and this also became one of the main reasons prompting the UK’s departure from the EU. The ensuing paragraphs shall consider the extent to which the UK government would be able to achieve the aforementioned purpose by reviewing the legally complex piece of legislation, the European Union (Withdrawal) Act 2018, which became law on 26 June, 2018.
The Withdrawal Act can be said to be one of the most crucial pieces of UK legislation enacted in recent times. However, the Act does not appear to be as coherent as one might have expected it to be since it is stranded with legal uncertainty and impractical solutions. The Act delegates Ministers a massive amount of power to “domesticate” EU law which might appear to be crossing the limits of delegation of power. This also appears to contravene the doctrine of separation of powers. One might reasonably question as to how this can amount to the restoration of supremacy of Parliament if such a huge responsibility is handed down to the ministers.
It also appears from the Act that the principle of supremacy of EU law would still be hovering over the UK and that at least some of the “domesticated” EU law will prevail over other national laws. The broad language of this law makes the whole Brexit process seem counter-productive since the domestic courts, as it appears, are given the task to strike down any domestic law if it conflicts with EU-derived law. Is this not an indirect attack on the supremacy of Parliament? It appears so, since national courts will strike down any “domestic” law if it contradicts with another EU-derived law that is still domestic law in the legal sense in contrast to the current position that is to invalidate any national law which conflicts with “EU law”. Having addressed the inherent contradictions within the aforementioned domestication of EU law, we shall now turn to one of the major shortcomings of the Act. Would it be practical to be able to translate the vast amount of EU treaties, regulations and directives into UK domestic law? Alas, no! The reason being that one would have to think a thousand times before getting into the complex plethora of EU laws let alone “absorbing” the entirety of it into national law – and that exactly is the major issue with this Act. It talks about converting EU law into domestic law, but it fails to address the issue that it is simply impractical.
We shall now assess the political dimension of Brexit before coming to the recently published White Paper. Brexit was in the headlines again this past week owing to the resignations of its two key-players, David Davis as Brexit Secretary and the “worst Foreign Secretary” Boris Johnson. The reason for their departure from the UK Cabinet, as their resignation letters reveal, was the “soft Brexit” plan of PM Theresa May. David Davis said in his resignation letter that May’s soft Brexit plan “hands control of large swathes of our economy to the EU and is certainly not returning control of our laws in any real sense.” The infamous Boris Johnson, on the other hand, regarded May’s plan as “a semi-Brexit”. It seems rather strange how he has criticized May for making a compromise on the Brexit deal, but hasn’t come up with any better suggestion himself. A columnist in the Guardian said something interesting in this regard, “Johnson offered Britain his dream, but he has given Britain its nightmare.” As if all of this wasn’t enough for the people to digest, US President Donald Trump made it to the headlines as well, this time not because of his controversial tweets or ridiculous statements about women, but BREXIT! The US President, in his response to May’s Brexit plan, warned it would “probably kill” hopes of any future US-UK trade deal. Later, however, he denied criticizing May and said, “Whatever you do with Brexit is OK with me” and also regarded the interview in the The Sun as “fake news”.
Let us now come to the White Paper on the future of UK-EU relationship, which, even before its publication, sparked the resignations of the key Brexit players, David Davis and Johnson Boris. The new Brexit Secretary, Dominic Raab has characterized the White Paper as “principled, pragmatic and ambitious” and is looking forward to a “kind” response from the EU. The White Paper, unfortunately, is not as fascinating as he describes it – it is rather a disappointment. It has not even been a week and the White Paper has already attracted wide criticism from Jacob Rees-Mogg (British Member of Parliament) who has regarded it as a “bad deal” and something he or the British public had not and would not vote for.
The White Paper has only led to more anxieties rather than promoting clarity. It seems to amount to “cherry picking” of the best bits of EU membership, as Brussels supposed. The Paper sets out that the UK will have its own barriers to trade in some areas as compared to their current position. It also marks the end of the jurisdiction of the Court of Justice of the European Union (CJEU) in the UK. But ironically, the White Paper acknowledges the CJEU as the “interpreter of EU rules” that the UK has agreed to follow in the “common rule book”. Among the four freedoms of the EU Single Market, the free movement of goods remains closely connected while there is a huge compromise on free movement of services which constitutes almost 70% of the EU economy. The Northern Ireland border was one of the controversial areas in Brexit negotiations, however, the White Paper discusses little of it.
While one curiously waits for the EU’s response regarding the White Paper, Boris Johnson has already remarked that “[the Brexit] dream is dying…” The ex-UK Foreign Secretary, William Hague on the other hand has warned of an increase in the likelihood of a Brexit-crisis. Let’s see whether the EU ‘kindly’ responds to the White Paper as the new Brexit Secretary expects, or criticises the UK government again of “cherry picking”, or as Boris famously said, “have its own cake and eat it”. The Brexit cyclone has not ended yet, it is just beginning for Theresa May and the British public.
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