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Report

Brexit: Te ImmediateLegal Consequences

By Richard Gordon QC and Rowena Moffatt


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BREXI: HE IMMEDIAELEGAL CONSEQUENCES

Richard Gordon QC and Rowena Moffatt


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First published in Great Britain in 2016 by

Te Constitution Societyop Floor, 61 Petty FranceLondon SW1H 9EUwww.consoc.org.uk Te Constitution Society

ISBN: 978-0-9928904-9-0

All rights reserved. Without limiting the rights under copyright reserved above, nopart o this publication may be reproduced, stored or introduced into a retrieval

system, or transmitted, in any orm or by any means (electronic, mechanical,photocopying, recording or otherwise), without the prior written permission o boththe copyright owner and the publisher o this book.
http://www.consoc.org.uk/http://www.consoc.org.uk/


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Contents

About the Authors 4

Introduction 5Executive Summary 7

PAR 1A Vote or Brexit Legal and Constitutional Challenges 13

PAR 2

A Vote or Brexit EU Citizenship Rights 44


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About the Authors

Richard Gordon QC is a practising barrister specialising inconstitutional and administrative law. He is the author o many

works in this area including Repairing British Politics: A Blueprintor Constitutional Change (Hart, 2010) and (as a contributor)to the estschrif or Veron Bogdanor Te British Constitution:Continuity and Change (Hart 2013). He has co-authored twoprevious papers or the Constitution Society (with Amy Street)Select Committee Powers Clarity or Conusion (2012) and(with Sir Malcolm Jack) Parliamentary Privilege Evolution or

Codification (2013).He is a member o the Advisory Board o the ConstitutionSociety and has given evidence on constitutional issues to severalparliamentary select committees. In 2014 he was appointed as aspecialist adviser to the Public Administration Select Committeeor its inquiry into Civil Service Impartiality. He has advisedall the major political parties on constitutional matters and is

a Visiting Proessor in Law in the Faculty o Laws, UniversityCollege London and at Hong Kong University.

Rowena Moffatt is a barrister practising in public law and humanrights law, with a particular emphasis on EU law and immigrationand asylum cases. She is the co-author, with Richard Gordon QC,o EU Law in Judicial Review (OUP, 2014) and a deputy editoro Te Law and Practice o Expulsion and Exclusion rom theUnited Kingdom (Hart, 2015). She also convenes the Courts andribunals Working Group o the Immigration Law PractitionersAssociation.


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5BREXIT: THE IMMEDIATE LEGAL CONSEQUENCES

Introduction

Tis paper is divided into two parts. Part 1 considers the mainlegal and constitutional consequences o a vote to leave the

European Union (EU). Te emphasis here is on the immediatechallenges that will have to be addressed although some widerconstitutional effects on the UK are also outlined. Part 2 ocuseson the specific area o citizenship rights ollowing a hypotheticalBrexit; this being a major area that the negotiations to end thiscountrys membership o the EU would have to take into account.

Both Parts are thematically related in that they seek to explain

particular effects o Brexit that can, even in the short term,neither be avoided nor deerred.1 Tey can also be subjectedto close legal analysis. Other questions such as, or example,the economic or migratory effects o a vote or Brexit are morepolitical, open-ended and thereore less susceptible to clearanalysis (whether economic or legal). Moreover, it is arguablethat an understanding o some o the legal issues posed by Brexit

is related to the attainment o other objectives. For example, theprocess o negotiation under Article 50 o the reaty on theEuropean Union (EU) contains (assuming that this provisionis invoked) a number o unresolved legal issues that could affect

1 Tus the paper does not examine campaign issues that do not present

early challenges afer a hypothetical vote or Brexit. An exampleo this is the enorceability or otherwise o the Prime Ministerspre-reerendum agreements.


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BREXIT: THE IMMEDIATE LEGAL CONSEQUENCES6

the political assessment o how best to move orward afer a voteto leave the EU.2

It is emphasised that the authors o this paper are neutral onthe reerendum question, as recommended by the ElectoralCommission Should the United Kingdom remain a membero the European Union or leave the European Union? Teanalysis presented is essentially legal. Political calculationsmay, sometimes, be made on the ooting o legal analysis andlegal analysis may at least inorm how votes are cast in theorthcoming reerendum. But this paper offers no suggestions orrecommendations as to whether or how such calculations shouldbe made or how such votes should be cast.

2 Each o the legal issues examined in Part 1 has the potential to inorm politicalcalculations. Whether it will or should do so is outside the scope o this paper.


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Executive Summary

1. Tree areas are addressed in Part 1. Tey are: (i) theoperation o Article 50 EU; (ii) the complexities involved

in unravelling EU law rom domestic law ollowing Brexit;and (iii) wider challenges to the Union arising in respecto the different interests o the devolved governmentsand legislatures.

2. In practice the orthcoming reerendum outcome will bindthe government. In theory it is advisory but in reality itsresult will be decisive or what happens next.

3. Having regard to the reerendum question recommendedby the Electoral Commission and the binding nature o thatresult, there would be no alternative but to engage in theArticle 50 EU negotiating process in the event o Brexit.

4. Te scope o Article 50 EU is not certain. Tere is, on any

view, an asymmetry in the negotiating process with the UKnot being entitled to participate in the decision-makingprocess o the remaining 27 Member States. Te requirementor all Member States to ratiy mixed agreements and thepotential or one Member State to block an extension o timeor negotiating beyond 2 years rom notice o intention towithdraw makes it a stringent process.

5. However, there is no obvious means o avoiding thestringency o Article 50. Even i revocation o a notice o


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intention to withdraw rom the EU could be implied intoArticle 50 (and this is by no means certain) in constitutionalterms the result o the reerendum would not be compatiblewith such revocation.

6. Te end o the time period in Article 50 brings the EUreaties to an end. However, the process o unravellingEU law rom domestic law ollowing Brexit would be a

complicated process. Repeal o the European CommunitiesAct 1972 in itsel would be insufficient to surmount thelegal difficulties. An earlier attempt at repeal in the orm oa Private Members Bill ailed to grapple with the complexityo the different bases on which EU law is incorporated intodomestic law.

7. In particular, it seems unlikely that all EU law would be

sought to be repealed. Much o it would be retained. In thatevent constitutional difficulties might arise. It would bequestionable whether a single Henry VIII clause allowingprimary and secondary legislation to be amended orrepealed by statutory instrument would be constitutionallyacceptable given the wide areas that EU law cuts acrossand the limited Parliamentary scrutiny that subordinatelegislation allows.

8. Tere would also, ollowing Brexit, be some difficulty inidentiying the continuing status o EU law. Questionswould be likely to arise and have to be legislated or or elsedecided by the courts as to the precedent value o Europeancourt case law and its status in areas where a particular areao EU law was sought to be preserved in a domestic context.


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9. Linked issues o law arise in respect o the devolvedgovernments and legislatures. Te devolution Acts arephrased differently but each o them appear to containEU law that has been devolved. Tat being so, the SewelConvention (depending on the scope o its application) maybe engaged. Tat Convention has been included in clause 2o the Scotland Bill which amends s. 28 o the Scotland Act.Te Sewel Convention requires the consent o the devolved

legislature as a pre-condition o Westminster legislating ondevolved matters.

10. Moreover, inclusion o the Sewel Convention in a statuteraises, at least in theory, questions o justiciability o thatConvention in the courts.

11. Wider legal issues may arise ollowing Brexit and they

could include (though not be limited to): (i) a claim thatBrexit ought to be attended by constitutional saeguardsin respect o a devolved legislature and government whosepopulation had voted to remain in the EU; (ii) legal issueso disentanglement o EU law rom the Belast Agreement;(iii) issues around the possible creation o EU bordersacross the island o Ireland and/or about the constitutionalposition o the Republic o Ireland. Other issues, notreerred to in this paper, could also arise in relation to areaslinked to the EU such as Crown Dependencies and BritishOverseas erritories.

12. Te theme o Part 1 is that questions o law are likely toinorm politics afer Brexit and vice versa.

13. Tree questions related to the rights o EU citizenship areconsidered in Part 2. Tey are: (i) the content and nature


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o EU citizenship rights; (ii) the impact o Brexit on thoserights; and (iii) whether, in the event o Brexit, individualscould enorce the rights beore national courts.

14. EU citizenship is a status that is parasitic on nationalcitizenship but it coners rights different rom and additionalto those that derive rom national citizenship. Te right toree movement within the territory o the EU is the most

significant in practice.

15. Te EU citizenship right to ree movement is incorporatedinto UK law by the European Communities Act 1972 andis transposed by domestic secondary legislation. Te EUcitizenship rights in the EU treaties have also been held tobe directly effective. EU ree movement rights do not adhereto the logic o domestic immigration law and EU citizen

migrants are in a ar stronger position vis--vis their hoststates than migrants rom non-EU states. However, EUcitizens are not assimilated to British citizens and remainsubject to immigration control whilst territorially present inthe United Kingdom.

16. Te EU citizenship o British nationals would have noindependent existence ollowing Brexit but the same may

not automatically be said o their EU citizenship rights.Te legal position o the body o persons that are currentlytermed EU citizens who seek to rely on EU citizenship rightsollowing Brexit will depend on: (i) the nature o the legalsituation that replaces EU membership; and (ii) whether theindividual in question is a British citizen in the EU or an EUcitizen in the UK.


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17. Whilst both the terms o Article 50 EU and politicalexpediency anticipate that some orm o successoragreement to EU membership will be reached ollowingBrexit, this is not guaranteed and, in any event, in the light othe extensive application o EU law in the UK legal order andthe difficulties o disentangling the two envisaged in Part 1,no uture agreement could be entirely comprehensive.

18. In the absence o an agreement, domestic immigration lawwould apply to EU citizens in the UK and British citizensin the EU. In the EU, this would mean the application oa combination o partially harmonised EU standards andthe individual immigration laws o each o the remaining27 member states. In the UK, this would mean domesticimmigration law: a combination o legislation and executivediscretion and policy. In both cases, at least in theory, Brexit

could leave individuals without immigration status and, assuch, liable to the coercive apparatus o immigration controlincluding detention and expulsion.

19. In terms o remedies that may be available to individualsadversely affected by Brexit, there are two central distinctionsto be drawn, namely those between: (i) EU citizens in theUK and UK citizens in the EU; and (ii) rights that have beenvested and those that have not. Insoar as rights are vested,there are likely to be legal remedies as a matter (at least)o the administrative law principles o non-retrospectivity,legal certainty and airness as well as under human rightslaw. In respect o EU citizens in the UK, conceptually,it is difficult to argue that EU general principles andundamental rights could continue to apply ollowing Brexit

since both the norms incorporating them domestically aswell as any international obligations under the EU reaties


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would cease to exist. As such, the source o these principleswould be domestic administrative law and/or the EuropeanConvention on Human Rights. However, UK citizens in theEU may still be able to rely on the EU general principlesand EU undamental rights insoar as their legal situationalls within the scope o EU third country immigrationlaw. Te extent o these legal principles in application toEU citizenship rights on Brexit would, however, require

uture litigation.


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PAR 1A Vote or Brexit Legal and

Constitutional Challenges

Article 50 EU

I the orthcoming reerendum were to result in a vote to leavethe EU a prior question o law arises which is whether or notthe reerendum result is legally binding on the government.As it happens, the European Union Reerendum Act 2015contains no provision as to its effect in law. Tis means that asa matter o constitutional theory the reerendum verdict has noconsequential legal effect. It is, like many other reerendums,devoid o consequential legal effect. Its result is advisory ratherthan mandatory. So, the government could, in strict law, chooseto ignore it.

Tis is to be contrasted with at least some statutes where thelegal effect o a reerendum has been stipulated in advance. Tus,

or example, the legislation or the electoral system reerendumin 2011 required the minister responsible to enact the result.3Nonetheless, given the constitutional significance o the issueat stake it is inconceivable that the government could choosenot to be bound by the result any more than it could have donewith respect to the Scottish independence reerendum in 2014or, indeed, with respect to the reerendum on membership o

3 See Parliamentary Voting System and Constituencies Act 2011 s. 8.


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the common market in 1975 neither o which were triggered bystatutes that purported to bind the government in law.4

Tis paper proceeds, thereore, on the assumption that theresult o the reerendum would, i it resulted in a vote or Brexit,mandate a decision on the part o the government to leave theEU. Once that decision has been made the terms o Article 50EU becomes relevant.

Article 50 EU provides as ollows:1. Any Member State may decide to withdraw romthe Union in accordance with its own constitutionalrequirements. 2. A Member State which decides towithdraw shall notiy the European Council o itsintention. In the light o the guidelines provided bythe European Council, the Union shall negotiate andconclude an agreement with that State, setting out the

arrangements or its withdrawal, taking account o theramework or its uture relationship with the Union.Tat agreement shall be negotiated in accordance withArticle 218(3) o the reaty on the Functioning othe European Union. It shall be concluded on behalo the Union by the Council, acting by a qualifiedmajority, afer obtaining the consent o the EuropeanParliament. 3. Te reaties shall cease to apply to theState in question rom the date o entry into orce o the

withdrawal agreement or, ailing that, two years aferthe notification reerred to in paragraph 2, unless theEuropean Council, in agreement with the Member State

4 It is not impossible that public statements as to the effect o the reerendummight lead to claims being brought in the courts or alleged breach o publiclaw legitimate expectation i the reerendum result were not ollowed (see:R v. Department o Education and Employment, ex p. Begbie[1999] EWCA Civ2100). However, there would be ormidable, i not insurmountable, problems

in persuading a court to hear such claims in view o Article IX o the Bill oRights (see, or example:R (Wheeler) v. Prime Minister and Home Secretary[2014] EWHC 3185 (Admin)).


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concerned, unanimously decides to extend this period.4. For the purposes o paragraphs 2 and 3, the membero the European Council or o the Council representingthe withdrawing Member State shall not participate inthe discussions o the European Council or Council orin decisions concerning it. A qualified majority shallbe defined in accordance with Article 238(3)(b) othe reaty on the Functioning o the European Union.5. I a State which has withdrawn rom the Union asksto rejoin, its request shall be subject to the procedurereerred to in Article 49.

Several points o importance emerge rom a careul reading othis provision.

First, although a decision to withdraw rom the EU may bemade in accordance with the constitutional requirements o theMember State concerned (Article 50.1) there is a requirement on

the Member State wishing to withdraw to notiy the EuropeanCouncil o its intention to withdraw (Article 50.2).

Secondly, receipt o the mandatory notice o intention towithdraw triggers an obligation on the Union to negotiate andconclude an agreement with the departing Member State settingout the arrangements or its withdrawal taking account o theramework or that Member States uture relationship with the

EU (Article 50.2).Tirdly, the negotiations that ensue must be undertaken byreerence to the procedure set out in Article 218(3) o the reatyon the Functioning o the European Union (FEU)5 and beconcluded on behal o the Union by the Council acting by a

5 Article 218 FEU provides, materially, that the Commission must submitrecommendations to the Council which shall adopt a decision authorising

the opening o negotiations and, depending on the subject o the agreementenvisaged, nominating the Union negotiator or the head o the Unionsnegotiating team.


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qualified majority6 afer obtaining the consent o the EuropeanParliament (Article 50.2).

Fourthly, there is a time limit or the departing Member Stateor EU law to apply in its territory. Tis is expressed to be: (i)the date o entry into orce o the withdrawal agreement, or (ii)two years rom the notification o intention to withdraw i nowithdrawal agreement has entered into orce by that time or (iii)any later period provided that such extended period has beenunanimously approved by the European Council7 in agreementwith the departing Member State (Article 50.3).

Fifhly, the departing Member State may not participate in thediscussions o the European Council or in decisions concerningit (Article 50.4).

Finally, i a State which has withdrawn asks to rejoin the EU

its request is subject to the procedure under Article 49 EU orapplications or membership o the EU (Article 50.5).

Te structure o Article 50 suggests that a Member State maynot seek to negotiate terms o withdrawal rom the EU outsidethe ambit o Article 50. Tis is because Article 50 contains acomprehensive and sel-contained scheme o withdrawal whichplaces specific obligations on both the withdrawing Member

State and the remaining (currently 27) Member States. Once adecision has been taken to withdraw rom the EU the MemberState concerned is required to take action under Article 50(service o a notice o intention to withdraw) and correspondingobligations are then placed upon the other Member States byreerence to a mandated and ostensibly stringent procedure.

6 As defined in Article 238(3)(b) FEU.

7 Te European Council comprises the heads o state or government o theMember States along with the Councils own president and the president othe Commission.


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Te stringency o the procedure mandated by Article 50 isapparent rom the act that the negotiations contain an essentialasymmetry. Te departing Member State may take no part in thedecision-making process engaged in by the remaining MemberStates. Moreover, a single Member State may prevent timebeing extended or negotiations or withdrawal arrangementsbeyond the 2 year period. Given that the negotiations involvedin a UK withdrawal rom the EU are likely to be complicated

and may well, thereore, be lengthy this creates a potentiallyserious disadvantage.8

Although majority voting could enable other Member Statesto carve out withdrawal arrangements within the 2 year periodthat cannot be blocked by a single Member State it is possiblethat at least some o these agreements would need the consento all Member States because they constitute mixed agreements.

A mixed agreement in EU law is one the content o whichextends beyond EU trade policy and which accordingly requiresthe consent o the EU institutions and the consent o all theMember States.

Once Article 50 is engaged it is ar rom clear that its effects canbe avoided. In particular, there is no express provision withinit or revoking a notice o intention to leave. Article 50 was

8 Te only way in practice o avoiding Article 50 ollowing a reerendum voteor Brexit would appear to be not to serve an intention o notice to withdrawrom the EU. Collateral negotiations might then be undertaken withoutthe time (and other) constraints imposed by Article 50. Te constitutionalobstacle to this would be that such a course o action had not been authorisedby the result o the reerendum. Te question recommended by the ElectoralCommission ostensibly compels a decision to serve notice o intention owithdrawal under Article 50. Te only mode o withdrawal, consistent with avote or Brexit, would be simply to withdraw and to disclaim adherence to the

reaty provisions at all. Tis would certainly avoid Article 50 but at the price, itmay be thought, o leaving so many crucial issues unresolved that it would bewholly impracticable.


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inserted by the reaty o Lisbon and its provisions have not beenrequired to be tested.9It is possible that i the CJEU were invitedto rule on the matter it would imply a right to revoke a noticeo withdrawal prior to the time at which the reaties cease toapply under Article 50.3. In that respect it should be noted that aMember State is only expressed to be subject to the procedure orre-application under Article 49 once it has withdrawn rom theUnion.Prior to that time the Member State concerned remains a

Member State and so cannot invoke Article 49. It may, thereore,be that the CJEU would rule that Article 50 does not operate tocompel a Member State to leave the EU merely because it hasserved a notice o intention to do so.10

But there is a counter-argument. As a matter o policy to allow aMember State to bypass the comprehensive regime or negotiatingwithdrawal by simply revoking notices o an intention to

withdraw and thereby extending the potentially tight time limitsin Article 50.3 might be held by the CJEU to subvert the purposeo Article 50 which is to lay down a clear and tightly constrainedscheme or withdrawal.

However these arguments might otherwise be resolved by theCJEU, it must, in any case, be questionable in constitutionalterms whether a reerendum outcome mandating withdrawal

could sanction revocation o a notice o an intention to withdrawthat had been served. It is true that there is precedent or a secondreerendum on the same subject as reflected in the two Lisbon

9 Earlier withdrawals o Greenland and Algeria took place by reaty amendment.

10 In his recent evidence to the House o Lords Select Committee on theEuropean Union (8th March 2016) on their inquiry into Te EU Exit ProcessProessor Derrick Wyatt QC advances precisely this reasoning in his answerto the Commitees Q3. At the time o writing the transcript o the hearing

was unrevised. Te counter-argument was not, however, reerred to by eitherProessor Derrick Wyatt or Sir David Edward KCMG, QC, PC, FRSE both owhom gave their oral evidence together.


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reerendums in Ireland in 2008 and 2009 on ratification o thereaty o Lisbon which resulted in the electorate deciding toratiy on the second occasion when it had reused to do so onthe first. But the difference between that precedent and a voteor Brexit is that the latter is a mandate or the positive act owithdrawal which would be inconsistent with revocation o anotice o intention to withdraw under Article 50.

Uncoupling domestic law rom EU law

As explained earlier, the time constraints introduced by Article50 ocus (although they are necessarily also related to the time orcompleting negotiations with the remaining Member States) onthe time at which EU law ceases to apply to a Member State. ByArticle 50.3 the reaties afer expiry o the time periods there setout shall cease to apply to the State in question.

It should be borne in mind that the act that the reaties haveceased to apply is most unlikely to have the result that all EU lawis simply removed by the repeal o the European CommunitiesAct 1972 (ECA), the statute that gives domestic effect to EU lawin the UK.11

One o the most urgent challenges ollowing a vote to leave theEU would be how to uncouple those parts o EU law that the

government wishes to see removed rom those parts that it wishesto retain (the objective). Tere are really two linked questions:

1. What statutory mechanism can or should be adopted toensure the objective?

11 Te analysis here ocuses on the ECA. However, it should be borne in mind that

drafing issues could arise in relation to certain provisions o the European UnionAct 2011 most notably s. 18 which deals with the status o directly applicable anddirectly effective EU law (the so-called sovereignty clause in s. 18).


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2. How will the courts interpret the EU law that remainsafer Brexit?

In order to understand questions surrounding the uncoupling odomestic rom EU law it is necessary to examine the differentways in which EU law has come into national law.

In very broad outline12EU law has operated directly in the UnitedKingdom in one o two ways; either through the EU doctrine o

direct effect or through the EU doctrine o direct applicability.Both doctrines have enabled EU law to operate directly in the UKwithout the need or implementing legislation. Both take effectvia the ECA s. 2(1).

ECA s. 2(1) provides thus:

All such rights, powers, liabilities, obligations andrestrictions rom time to time created or arising byor under the reaties, and all such remedies andprocedures rom time to time provided or by or underthe reaties, as in accordance with the reaties arewithout urther enactment to be given legal effect orused in the United Kingdom shall be recognised andavailable in law, and be enorced, allowed and ollowedaccordingly; and the expression enorceable EU rightand similar expressions shall be read as reerring to oneto which this sub-section applies.

Put shortly, s. 2(1) means that provisions o EU law that aredirectly applicable or have direct effect, such as EU Regulations,

12 A detailed exposition o EU law and its relationship to domestic law is beyondthe scope o this paper. Te outline here is merely a vague outline and omitsconsideration o many important aspects even o the doctrines covered. Tus,or example, the doctrine o direct effect includes horizontal direct effect and

vertical direct effect. All these are complexities that would need to be actoredinto a consideration o which elements o EU law were sought to be retainedollowing Brexit and which to be repealed.


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certain articles o the EU reaties as defined13and (in the case odirect effect) certain directives that have not yet been transposedinto national law are automatically without urther enactmentincorporated and binding in national law without the need or aurther Act o Parliament.

ECA s. 2(4) urther provides that:

any enactment passed or to be passed [] shall be

construed and have effect subject to the oregoingprovisions o this section

ECA s. 3(1) provides:

For the purpose o all legal proceedings any questionas to the meaning or effect o any o the reaties, or asto the validity, meaning or effect o any EU instrument,shall be treated as a question o law (and, i not reerredto the European Court, be or determination as such in

accordance with the principles laid down by and anyrelevant decision o the European Court).

Sections 2(4) and 3(1) thus give effect to the doctrine o thesupremacy o EU law, as interpreted by the CJEU, over nationallaw;14 and where EU law is in doubt, requires UK courts toreer the question to the CJEU. As a consequence o the ruleo construction in s. 2(4) all primary legislation enacted by

Parliament afer the entry into orce o the ECA on 1 January1973 is to be construed by the courts and take effect subject to

13 It should be noted that an EU reaty as defined in ECA s. 1(2) extends to someinternational treaties. Tus, or example, the UN Convention on the Rights oPersons with Disabilities is to be regarded as an EU reaty within the meaningo s. 1(2): see the European Communities (Definition o reaties) (UnitedNations Convention on the Rights o Persons with Disabilities) Order 2009,Article 2.

14 Section 3(1) does so expressly and s. 2(4) does not by necessary implicationbecause the expression the oregoing provisions o this sectionincludes s. 2(1).


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the requirements o EU law. Tis obliges the courts to disapplylegislation which is inconsistent with EU law.

In addition, EU law may be required to be transposed intodomestic law. Tis may be achieved through primary orsecondary legislation. As to the latter, ECA s. 2(2) encompassesmeasures o EU law, most notably directives, that are neitherdirectly applicable nor have direct effect and/or that are requiredor other reasons to be transposed into domestic law.15 Tisprovision makes it possible to give effect in national law to suchmeasures by secondary, or delegated, legislation, such as (mostnotably) statutory instruments. Materially, such secondarylegislation can amend an Act o Parliament (s. 2(4)) since thedelegated legislative power includes the power to make suchprovision as might be made by Act o Parliament.16

Given these different routes by which EU law becomesincorporated into domestic law there will, to say the least, besome complexity in devising legislative drafing that is adequateto enable proper scrutiny to be given to the myriad amendmentsand repeals that will be needed to retain the objective (i.e. to retainthose parts o EU law that the government wishes to retain).

Ignoring or the moment the additional legislative drafing issuessurrounding EU law in the devolved legislatures including the

possible scope and application o the Sewel Convention (orwhich see below) it is apparent that simple repeal o the ECA,without more, would not achieve the objective. Tat is because arepeal o the ECA alone would have the ollowing consequences:

15 Te most obvious reason is that a provision o a directive with direct effect isstill required to be transposed into domestic law.

16 Tis provision is a Henry VIII clause and, as explained below, has potentialconstitutional implications when it comes to amending or repealingEU legislation.


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1. All directly applicable and directly effective provisions o EUlaw would automatically cease to apply once ECA s. 2(1) wasrepealed17; as outlined above their sole source o authority indomestic law derives rom s. 2(1).18

2. Similarly, but or different reasons, all secondary legislationimplementing EU law via ECA s. 2(2) would automaticallycease to apply once ECA s. 2(2) was repealed; as outlined

above their sole source o authority in domestic law derivesrom s. 2(2).

3. By contrast, primary legislation transposing EU law intodomestic law would remain unaffected by the simple repealo the ECA.

How will the objective be best secured having regard to the

different entry points o EU law into national law?In the case o primary legislation transposing EU law there wouldseem to be ew problems in terms o a legislative solution. Teimplementing primary legislation can be lef on the statute bookand amended or repealed piecemeal. In that ashion there canbe proper Parliamentary scrutiny o how EU law is amended orrepealed afer Brexit.

17 Importantly, however, repeal o the ECA prior to expiry o the time periodstipulated in Article 50 EU would not affect directly applicable and directlyeffective EU law as a matter o international obligation; that would cease oncethat time period had expired.

18 See also the Supreme Courts judgments inAssange [2012] UKSC 22, [2012]2 AC 417 and HS2[2014] UKSC 3, [2014] 1 WLR 324. InAssange, the

Supreme Court held that EU law that alls outwith the terms o the ECA aretreated as matters o international, rather than EU, law in the UK legal order(at [201][218]).


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More difficulty arises with directly applicable and directlyeffective EU law that has ound its way into national law throughECA s. 2(1) and with the large amount o secondary legislationthat has been introduced under s. 2(2). Te problems are relatedalbeit not identical.

In a private members Bill:19 the European Communities Act1972 (Repeal) Bill that was introduced in 2013 but ailed tocomplete its passage through Parliament, the solution attemptedwas as ollows.

Clause 1 o the Bill provided that:

1. Te European Communities Act 1972 is repealed.

2. Secondary legislation made under that Act shallcontinue in orce unless it is subsequently amendedor repealed, and any such amendments or repeals

may be made by statutory instrument subject toannulment in pursuance o a resolution o eitherHouse o Parliament.

Clause 2 o the Bill provided that:

1. Te Secretary o State may by order made bystatutory instrument repeal any Act which isrendered obsolete by virtue o the repeal in section 1.

2. No order may be made under subsection (1)unless a draf o the order has been laid beoreand approved by a resolution o each House oParliament.

Tis solution (generalised model) is problematic or a numbero reasons. First, directly applicable and directly effective EU lawis not addressed at all. Secondly, all the heavy lifing o EU lawpost Brexit is proposed to be achieved by a Henry VIII clause

19 Te Bill was introduced by Mr. Douglas Carswell MP.


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thereby enabling both primary and secondary legislation relatingto EU law to be amended or repealed by secondary legislation.Te first o these reasons raises the spectre o unintendedconsequences; the second raises the constitutional issues engagedin using Henry VIII clauses to make potentially significantlegislative changes.

Both directly applicable and directly effective EU law derive romthe EU institutions and are not shaped by domestic legislation.20Yet it would not necessarily be desirable to abrogate all suchlaw afer a Brexit vote. o take but one example; much o ourdomestic competition law is statutorily expressed to be basedon EU law. Section 60(1) o the Competition Act 1998 provides,materially, that:

Te purpose o this section is to ensure that so ar as ispossiblequestions arising under this Part in relation

to competition within the United Kingdom are dealtwith in a manner which is consistent with the treatmento corresponding questions arising in Community lawin relation to competition within the Community.

Much o that EU law, in turn, consists o a series o EU regulationsand directives. Te EU regulations are directly applicable (seeabove) and at least some EU competition law is directly effective.O course there is also much EU competition law that has alsobeen implemented through secondary legislation.

Competition law thus affords an example o all the elements othe sources o EU law in UK law that would need to be addressedi there were a vote to leave the EU and that would in no way beresolved by a repeal o the ECA.

20 As explained above, they find their way into domestic law via ECA s. 2(1)without urther enactment.


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It would be or consideration whether primary legislationother than the ECA (including the Competition Act 1998)should be repealed or amended afer Brexit. Given the veryclose connection since the enactment o the 1998 Act with EUcompetition principles it may be that the government wouldwish to retain that connection. I s. 60 remained on the statutebook it would then be necessary to decide whether to amend itto include only some directly applicable or directly effective EU

provisions or whether all directly applicable and directly effectiveEU law would be retained. Similar considerations would have toinorm secondary legislation giving effect to EU competition law.

Te core point is that in many discrete areas o domestic law suchas competition law EU law is integral to the operation o that law.Further, some o our laws as, or example, employment law in theareas o equality and discrimination are now engrained into our

culture and business practices. Careul and evaluative legislativejudgments would necessarily have to be made ollowing Brexit asto which parts o EU law to retain and which to jettison.

A legislative model that simply repealed the ECA would notbe adequate or this purpose or the reasons identified earlier.Nor (even i there were no constitutional objections) would ageneralised legislative model such as that adopted in the abortive

European Communities Act 1972 (Repeal) Bill necessarilywork either. Certainly, such a generalised model would need toaccommodate (or at least address) directly applicable and directlyeffective EU law but the latter, in particular, is problematic becausethe concept o direct effect is a construct o the CJEU as opposedto being a unction o the reaties. Careul consideration would,thereore, need to be given to how to retain (i it were desiredto retain) those parts o EU law that had become part o our

domestic law by virtue o decisions o the CJEU or by reerenceto principles laid down by the CJEU.


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Tere are also wider constitutional issues arising in relation toa generalised model ollowing Brexit. Legislation that relies onsecondary legislation to repeal or amend primary legislation isknown as a Henry VIII clause. In the case o a repeal o the ECAsecondary legislation would, in a generalised model, be soughtto be used to amend or repeal both primary legislation and theenormous amount o EU law that has been introduced by ECAs. 2(1) and s. 2(2).

It is true that the ECA itsel employed a Henry VIII clause in ECAs. 2(1) but it is at least arguable on the constitutional level that thiswas unsurprising as Parliament had assented to the wholesaleincorporation o a supranational legal regime into domestic lawat the time o accession to the European Community.

Te difference between deploying a Henry VIII clause onaccession and the position post Brexit is that judgments as towhich parts o EU law to retain and which to remove would notin substance be scrutinised by Parliament. EU law has createda plethora o rights and obligations not only between MemberStates but also or nationals o those States some o which areconsidered in Part 2 o this paper.

Te subject-matter o those obligations thus affects extremelysignificant areas o domestic law. Te constitutional objections to

use o such a generalised model to alter EU law through a HenryVIII regime may be thought to be potentially more significantthan that identified by the House o Lords ConstitutionCommittees Report on the Legislative and Regulatory ReormBill as first introduced:21

21 See House o Lords Constitution Committee 6th Report 20102011 PublicBodies Bill, HL 51).


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Te point o principle

6. Te Government has not made out the case as to whythe vast range and number o statutory bodies affectedby this Bill should be abolished, merged or modified byorce only o ministerial order, rather than by ordinarylegislative amendment and debate in Parliament.As we have said, and as is axiomatic, the ordinaryconstitutional position in the United Kingdom is thatprimary legislation is amended or repealed only by

Parliament. Further, it is a undamental principle o theconstitution that parliamentary scrutiny o legislationis allowed to be effective. While we acknowledge thatexceptions are permitted as in the case o ast-tracklegislation, or example we have also sought to ensurethat such exceptions are used only where the need orthem is clearly set out and justified. As we have said,the use o Henry VIII powers, while accepted in certain,limited circumstances, remains a departure rom

constitutional principle. Departures rom constitutionalprinciple should be contemplated only where a ull andclear explanation and justification is provided.

13. Te Public Bodies Bill [HL] strikes at the very hearto our constitutional system, being a type o rameworkor enabling legislation that drains the lieblood olegislative amendment and debate across a very broadrange o public arrangements. In particular, it hits directly

at the role o the House o Lords as a revising chamber.

Te complexities attending the selection o a legislative modelthat works afer Brexit brings with it the linked problem o how,i some EU law is to be retained, the courts will in the absenceo clear legislation to the contrary decide to interpret and applyit. Tere are a number o uncertainties (largely stemming romthe doctrine o the supremacy o EU law) which may themselves

inorm the way in which the post-Brexit legislative model shouldbe selected. Tey include the ollowing.


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First, the doctrine o supremacy o EU law itsel would bequestionable. As a matter o EU law, that system o law takesprecedence over any contrary domestic law.22But i the ECA wererepealed that statutory doctrine would lapse unless statutorilyrevived or otherwise implied by the courts. So, too, the duty o adomestic court o last resort to reer questions o EU law (unlessclear) to the CJEU would lapse.23

Secondly, the status o judgments o the CJEU would probablybe different. I the ECA were repealed then ECA s. 3(1) would goand with it the current binding status o CJEU judgments. Unlesslegislation specified the status to be accorded to CJEU judgmentsthe domestic courts would have to decide how ar to take theminto account when determining questions o EU law.

Tirdly, within EU law there is a hierarchy accorded to thedifferent types o EU legislation. reaty provisions, or example,have a higher status than directives. Whether or not the samehierarchy would necessarily apply post Brexit would be a mattero legislative choice or or our domestic courts to decide.

Fourthly, in the absence o clear legislation it might be opento the UK courts to determine that the common law had beenaltered during our membership o the EU. Te court might, orexample, rule that EU-type equality was now firmly entrenched

22 See, or example, Costa v. ENELCase 6/64.

23 Tis would probably encompass principles o interpretation o EU law whichhave the doctrine o EU supremacy at their root: seeMarleasing SA v. LaComercial Internacional de Alimentacion SACase C-106/89. Even where

EU law survived eo nominein a domestic statute post Brexit the appropriateprinciples o interpretation would be a matter solely or domestic law: seeAssange [2012] UKSC 22, [2012] 2 AC 417 at [201][218].


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in the common law.24Te common law might also be developedthrough the general principles o EU law which are said to includeprinciples common to the laws o the Member States.

Tese types o question, and perhaps others, are not entirelydissimilar rom questions that would arise i the governmentwere to repeal the Human Rights Act 1998. In particular, thestatus o European court judgments whether in Strasbourg(or undamental rights) or Luxembourg (or EU law) and theresponse o domestic courts to detachment rom a Europeanlegal regime that has become part o our legal culture have neverbeore had to be aced by Parliament or by the courts.25

It is emphasised that these questions, though they may involvethe courts, also engage the legislative model adopted afer Brexitbecause legislation may, depending on how it is drafed, reducethe scope or judicial activism or, conversely, expand it.

Wider issues relating to the Union

Te extensive devolution that has taken place over the last twodecades poses urther challenges to an effective Brexit. Techallenges here are both legal and political and it is not easy todisentangle one rom the other.

24 races o equality as a common law principle have existed in a ew commonlaw decisions: see Kruse v. Johnson[1898] 2 QB 91. But the status and extento the principle remain uncertain. Brexit might lead to a strengthening ocommon law equality by reerence to EU jurisprudence. Tis is by no meansthe same thing as treating EU case-law as binding.

25 It should be noted that although they are to some extent interlinked, the UKcould withdraw rom the EU but remain a member o the Council o Europeand, thereore, a party to the European Convention on Human Rights. EU lawand ECHR undamental rights law are governed by two separate legal regimes.

ECHR undamental rights law is governed by the Human Rights Act 1998which statutorily incorporates many though not all o the Convention intodomestic law.


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At least to some extent, each o the devolution statutesincorporates the European Convention on Human Rights andEU law directly into the powers and duties o the devolvedlegislatures. Tus, as ar as EU law is concerned, s. 29(2)(d) o theScotland Act 1998 stipulates that Acts o the Scottish Parliamentthat are incompatible with EU law are outside the legislativecompetence o the Scottish Parliament. In similar vein, s. 108(6)o the Government o Wales Act 2006 provides that any act o the

Welsh Assembly that is incompatible with EU law, alls outsideits competence. Section 24 o the Northern Ireland Act 1998prohibits any legislation that is contrary to EU law.

Several issues arise with respect to the act o such directincorporation. Te first is that o identiying the legal sourceo devolved EU powers and what drafing changes would benecessary to implement a vote to leave the EU. Resolution o

that question depends upon an analysis o both the ECA and thedevolution statutes. Te second issue is that on the assumptionthat at least some EU law has been devolved to the respectivelegislatures to what extent (i any) is the Westminster Parliamentconstrained legally and/or constitutionally rom legislating toremove that EU law. Tis requires an analysis o the scope andapplication o the Sewel Convention. Te third issue is whetheror not the courts might ever be called upon to decide that issue

in respect at least o Scotland. Te ourth issue is what impactthe legal issues surrounding Brexit might have on the stability othe Union especially i one or more o the other constituent partso the United Kingdom were, notwithstanding an overall Brexitoutcome, to vote to remain in the EU.

Tese questions will be addressed briefly in turn.


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Question 1: Identiying the source o devolved EU law

Identiying exactly what has been devolved requires closeanalysis o the devolution statutes. Te analysis here ocuses onthe Scotland Act 1998 but a similar analysis would be necessaryor each o the other devolution Acts because they do not containidentical provisions.26 Matters which are not devolved arereserved and within the exclusive competence o the WestminsterParliament. However, even matters which are devolved maystill be legislated on by the Westminster Parliament albeit (seeurther below) normally only with the consent o the devolvedlegislature through the operation o the Sewel Convention (seeurther below).

It is clear that most o the ECA has not been devolved. Schedule4 paragraphs 1(1) and 1(2)(c) o the Scotland Act provide that anAct o the Scottish Parliament cannot modiy or create power bysecondary legislation in respect o a number o specific provisionsin the ECA. Notably, however, ECA s. 2(2) is not included andthe exercise o power thereunder has, thereore, been devolvedunder s. 53 o the Scotland Act.

Tere are other parts o the Scotland Act that are also potentiallyrelevant. First, paragraph 15 o schedule 8 amends the ECA(including ECA s. 2(2)) to extend the reerences there to any

statutory power or dutyto includea power or duty conerred byan Act o the Scottish Parliament or an instrument made undersuch an Act.

26 Te ormula is different in each o the devolution statutes. In the Scotland Actall matters that are reserved are listed and all else alls within the legislativecompetence o the Scottish Parliament. By contrast, in the Government oWales Act 1998 devolved matters are specifically listed. In Northern Ireland

under the Northern Ireland Act 1998 the position is different again withseparate lists o excepted and reserved matters with all else constituting adevolved matter.


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Secondly, thereore, the Scottish Parliament is required to haveregard to the objects o the EU when exercising its powers. Tisollows rom the last part o ECA s. 2(2) which reads materiallyas ollows:

and in the exercise o any statutory power or duty,including any power to give directions or to legislate bymeans o orders, rules, regulations or other subordinateinstrument, the person entrusted with the power or

duty may have regard to the objects o the EU

Tirdly, By virtue o s. 126(9) o that Act the term EU law is verywidely defined and is derived directly rom the reaties. It is notexpressed to be subject in any way to the ECA. Given the termso s. 29(2)(d) it ollows that a repeal o the ECA would, at leastprior to Article 50 EU taking effect (when the reaties wouldcease to apply) not necessarily operate to constrain the legislative

competence o the Scottish Parliament. Tis is because at leastup to the point at which the reaties ceased to apply the ScottishParliament could not legislate in a manner that was incompatiblewith EU law as defined by s. 126(9) o the Scotland Act even i theECA were to be repealed. Te Scottish Parliament would also beempowered to have regard to the objects o the EU.

Moreover, even at the point at which, under the reaty, the

reaties ceased to apply such effect would, arguably, only applyon the level o public international law. As a matter o domesticlaw an un-amended Scotland Act would continue to constrainthe legislative competence o the Scottish Parliament.27

In terms o drafing it seems clear that mere repeal o theECA would not automatically end the application o EU lawas defined in the Scotland Act to the powers and duties o

27 Subject, always, to how the domestic courts interpreted the phrase EU lawafer the reaties ceased to apply directly.


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the Scottish Parliament. Te Scotland Act 1998 itsel wouldrequire amendment.

Question 2: Scope and application o the Sewel Convention

However drafing issues are by no means as constitutionallysignificant as the potential application o the Sewel Convention.Te Sewel Convention finds its origin in Lord Sewels (the thenScotland Office Ministers) statement in the House o Lordsduring the second reading debate o the Scotland Bill in 1998.He said:

[A]s happened in Northern Ireland earlier in thecentury, we would expect a convention to be establishedthat Westminster would not normally legislate withregard to devolved matters in Scotland without theconsent o the Scottish parliament. 28

Tis ormulation has been adopted with regard to all thedevolved legislatures in successive Memorandums o Agreement(see most recently October 2013 Devolution Memorandumo Understanding and Supplementary Agreements presented toParliament and to the Scottish Parliament, the Northern IrelandAssembly and laid beore the National Assembly or Wales).Te documents are not intended to be legally binding but,

nonetheless, constitute a statement o political intent.

29

Paragraph 14 o the latest Memorandum states the now wellestablished Sewel Convention in respect o Scotland, Wales andNorthern Ireland, stipulating that:

Te United Kingdom Parliament retains authority tolegislate on any issue, whether devolved or not. It isultimately or Parliament to decide what use to make

28 HL Debates, volume no. 592, part no. 191, 21 July 1998, column 791.

29 See paragraph 2 o the October 2013 Memorandum.


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o that power. However, the UK Government willproceed in accordance with the convention that the UKParliament would not normally legislate with regardto devolved matters except with the agreement o thedevolved legislature. Te devolved administrations willbe responsible or seeking such agreement as may berequired or this purpose on approach rom the UKGovernment.

At the same time, paragraph 21 o the Memorandum makesit clear that (materially) [t]he devolved administrations areresponsible or observing and implementing European Unionobligations which concern devolved matters.

Clause 2 o the Scotland Bill currently30provides or a new s. 28(8)to be inserted into the Scotland Act 1998. Section 28(7) presentlyprovides that s. 28 which coners legislative authority on theScottish Parliament does not affect the power o the Parliament

o the United Kingdom to make laws or Scotland.But the new s.28(8) would say: But it is recognised that the Parliament o theUnited Kingdom will not normally legislate with regard to devolvedmatters without the consent o the Scottish Parliament.

Te constitutional scope o the Sewel Convention is not reerom doubt. I it does apply, then as a matter o constitutionalexpectation a legislative consent motion would now ordinarily

be required giving consent by the devolved legislature to aWestminster Bill containing provisions with regard to devolvedmatters beore such legislation could be enacted.31

However, whether or not the Sewel Convention is engaged asa matter o principle depends upon whether the Convention is

30 As o 1 March 2016.

31 See Chris McCorkindale Echo Chamber : the 2015 General Election atHolyrood a word on SewelUK Constitutional Law Association May 13, 2015.See also Standing Order 9B o the Standing Orders o the Scottish Parliament.


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to be read as encompassing only legislation rom Westminsterin devolved policy areas or whether it extends to legislationrom Westminster seeking to vary the legislative competenceo the Scottish Parliament or the executive competence o theScottish Ministers.32

It may be argued that the Convention was not intended to precludeWestminster rom legislating on oundational matters such asamending the powers o the Scottish Parliament. Nonetheless,purely as a matter o legal interpretation o the words used inclause 2 o the Scotland Bill the words with regard to devolvedmatters(echoing the earlier ormulations in the Memoranda andin Lord Sewels original statement to the House) are extremelybroad. Similar words were used in s. 29(2)(b) o the ScotlandAct 1998 in constraining the power o the Scottish Parliamentto legislate where legislation relates to reserved matters. Te

breadth o that provision has consistently been interpreted bythe government as being very wide and, in particular, precludingScotland rom legislating so as to authorise even an advisoryreerendum on Scottish independence.33

On an expansive understanding o the Sewel Convention thatembraced legislation rom Westminster designed to amend thepowers o the Scottish Parliament (or other devolved legislature)

it seems inevitable that at least in terms o constitutional principlethe Sewel Convention would apply to a proposed repeal o theECA and (as ar as Scotland is concerned) the Scotland Act 1998.

32 MCorkindale op cit.

33 Nonetheless, Scotland has not accepted the governments interpretationo s. 30. Te issue was lef unresolved in the Edinburgh Agreement bywhich the coalition government authorised the holding o a reerendumon Scottish independence. For a stimulating rehearsal o the arguments see

Adam omkins: Te Scottish Parliament and the Independence ReerendumConstitutional Law Group Blog January 12 2012 responding to Nick BarbersTe Virtues o Advisory ReerendumsMarch 22 2012.


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Question 3: Justiciability o the Sewel Convention in the courts

Even potential engagement o the Sewel Convention raisespolitical issues. Tese are addressed briefly as part o Question4 below. Yet there is a prior legal question as to whether adetermination that the Sewel Convention either does or does notapply is one o law rather than politics and thereore one to bedetermined by the courts.

It has, in the past, been trite law that the scope and applicationo a Parliamentary convention is not justiciable in the courts.34However, the unusual eature o the Sewel Convention is thatit is currently intended to be codified in the Scotland Act whenenacted. It may, thereore, be contended that this eature givesit statutory orce and, hence, renders it justiciable in the courts.

Tere are two ormidable objections to such a contention

although the point might yet all to be argued in the courts.Te first is that Article IX o the Bill o Rights Act operates toprevent proceedings in Parliament rom being questioned in thecourts. Te application o a Parliamentary convention does not,in constitutional terms, constrain Parliament rom legislatingand an argument or an interpretation o the current clause 2 thatviewed it as a constraint o that kind would have to overcomethe act that the Parliamentary drafsman was unlikely to have

envisaged such a constraint since that would invite the court toadjudicate on proceedings in Parliament.

Te second objection is that the proposed new s. 28(8) does notappear to alter the effect o s. 28(7) but, rather, simply to accorddeclarative recognition to the Sewel Convention. Tis objectioninfluenced the Political and Constitutional Reorm Committee o

34 SeeMadzimbamuto v. Lardner-BurkePC [1969] 1 AC 645, 722A-723A, DE.


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the House o Commons in its Report Constitutional Implicationso the Governments draf Scotland clauses.35

Question 4: Wider impacts o Brexit on the Union

Te subject o the overall impact o Brexit on the Union isone more appropriate or political than legal consideration.Nonetheless, the legal issues identified in this paper cannot,entirely, be divorced rom political calculations that may be made

in the light o the legal uncertainty that might ollow a vote toleave the EU.

Many areas could become the subject o legal debate ollowingBrexit. Te law would almost certainly have politics as theunderlying trigger or disputation but certainly law (andespecially constitutional law) could operate as the leitmoti orthat debate. Scotland, in particular, given its recent reerendum

and the terms o the new Scotland Bill might have the most tosay about the post-Brexit legal position. But there are issues thatcould surace in each o the devolved jurisdictions.

Legal argument could take place by reerence to:

1. Different conceptions o sovereignty in Scotland and Wales(stemming rom a strengthened national consciousnessollowing devolution) underpinning demands or some

orm o constitutional saeguards against the devolvednations being taken out o the EU against their will.

2. Te consequences o Brexit on Northern Ireland and theRepublic o Ireland in terms o cessation o EU membership.

Te concept o Parliamentary sovereignty emanating romWestminster is itsel imprecise and susceptible to different shades

35 Ninth Report printed 16 March 2015 at paragraph 54.


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o meaning. In the sense adumbrated by the eminent Victorianjurist A.V. Dicey it means simply that Parliament has the rightto make or unmake any law whatever.36In that sense (which isstill the generally accepted meaning) by entering the commonmarket the United Kingdom did not surrender its sovereignty. Itmerely made a set o laws (most notably the ECA) which it mayrepeal or amend at any time.

Te Prime Minister has recently distinguished between power andsovereignty suggesting that the latter without the ormer is illusory.37Yet to critics o our remaining in the EU it is that very distinctionthat leads them to argue that sovereignty has in a meaningul sensebeen lost by surrendering it to unelected officials in Brussels.38

Tese arguments are incapable o legal resolution because theydepend upon conflicting ideas o power and economics. Teimportant point, however, is that a different idea o sovereigntyto that o Parliamentary sovereignty permeates at least some othe devolved jurisdictions.

In Scotland some have argued that Parliamentary sovereignty inthe sense o sovereignty attaching to the Westminster Parliamentis, as ar as Scotland is concerned, an historical fiction becausewhen the Bill o Rights was enacted in 1689 Scotland had its ownParliament and the 1707 Act o Union (enacted some 18 years

later) did not in any way transer to Westminster the sovereigntyo the Scottish Parliament.

Tat argument has gained some traction since devolution bybeing deployed more as providing historical support or an

36 A.V. Dicey Introduction to the Study o the Law o the Constitution (6th ed1902, Macmillan) at pp. 3738.

37 Interview on the Andrew Marr programme on 21 February 2016.

38 See Te Demise o the Free StateDavid G. Green (Civitas, 2014).


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assertion o national sovereignty ounded on principle. Tus,in 2014 the draf Constitution or an independent Scotlandstated the undamental principlethat the people are sovereign resonates throughout Scotlands history and will be the oundationstone or Scotland as an independent country[our underlining].39

A similar emphasis can be discerned in Wales where the devolvedgovernment there has, emboldened no doubt by a strengtheningo national consciousness afer two decades o expandingdevolution made a joint statement with the Scottish First Ministerthat: [a]ny decision to leave the EU, taken against the wishes o thepeople o Wales or Scotland, would be unacceptable and steps mustbe taken to ensure that this does not happen.40

Te issues o law raised earlier in this paper may eed into eachother. Tus, i Scotland and/or Wales were to vote to remain in theEU but the UK as a whole voted to leave then the uncertain scope,effect and enorceability o the Sewel Convention (involving asit would constraints on the legislative powers o Westminster)could, with the different conceptions o sovereignty beginning tocrystallise in Scotland and Wales make it a complex and difficulttask to give effect to Brexit without the consent o the devolvedgovernments. Tat in turn might lead to drafing issues as to howbest to give effect to a majority vote to leave the EU when distinct

parts o the UK wished to remain.In Scotlands case there is a urther possible dimension o lawwhich is the relationship between the 2014 Scottish independencereerendum and the outcome o the EU reerendum. Tere was

39 See Nicola Sturgeons Foreword to Te Scottish Independence Bill: AConstitution on an Interim Constitution or Scotland, (Te ScottishGovernment, Edinburgh, 2014).

40 Joint Statement o the First Minister o Scotland Ms Nicola Sturgeon (SNP)and the First Minister o Wales Mr. Carwyn Jones (Labour) 3 June 2015.


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much argument during the build-up to the 2014 reerendumabout whether Scottish independence would prejudice itscontinued membership o the EU. At the time the UK governmentcontended that i Scotland were to become independent itwould have to invoke Article 49 o the reaty (addressing newapplications or membership o the EU) as opposed to beingable to seek a reaty amendment under Article 48 to address i itbecame independent.

Tat discussion is now past history but it reflects the possibilitythat a perceived benefit o voting against independence in 2014may have been the risk o losing certain membership o theEU through a vote or independence. A Brexit outcome maybe thought by some to invalidate that reasoning and constitutea change o circumstances supporting claims or a newindependence reerendum. Tis is, indeed, what Nicola Sturgeon

has claimed.41

Tis, in turn, raises the spectre (not resolved in the EdinburghAgreement that set the ramework or the 2014 independencereerendum) o Scotland claiming that it has power under theScotland Act 1998 to authorise a new advisory reerendum onindependence ollowing a vote or Brexit. Tere are legal argumentsthat might be used to support the proposition that it does not

need the consent o the UK Parliament to do so and they turn onthe proper interpretation o s. 29(2)(b) o the Scotland Act 1998;specifically on the constraint that the Scottish Parliament doesnot possess legislative competence to legislate where legislationrelates to reserved matters. Te question at issue would be whetherthe phraseology is sufficiently broad to preclude the Scottishparliament legislating or an advisory reerendum (the outcome

41 See Ms Sturgeons speech in Brussels to the European Policy Centre2 June 2015.


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o which would probably have decisive political consequences) orwhether it does not imply such a prohibition.

Section 29 o the Scotland Act is something o a double-edgedweapon. On the one hand (as explained earlier) it may affordan expansive interpretation to be given the scope o the SewelConvention (which Scotland would contend or). But i thatinterpretation is correct it would appear to suggest, by parityo reasoning, an equally wide constraint on the powers o theScottish Parliament to legislate or an advisory reerendum(which Scotland would not contend or).

As ar as Northern Ireland is concerned, that country has had adramatic history over the last century and its continued politicalstability cannot, sensibly, be isolated rom that o the Republico Ireland. Both would need to be addressed in terms o legalanalysis ollowing Brexit.

A detailed analysis o the complex legal issues that might ariseollowing Brexit is beyond the scope o this paper but theollowing subject-headings would be obviously material:

1. Te Belast Agreement contains numerous EU provisions. Ithas been observed that:42

the status o the UK and Ireland is woven into theabric o the Agreement: it provides or the establishmento a Northern Ireland Executive and Northern IrelandAssembly, as well as enshrining North-South andEast-West co-operation. In addition, it has effectedconstitutional changes and established cross-borderbodies. Both the Northern Ireland Assembly and theExecutive have been pro-actively working to develop

42 See Te Art o Falling Apart Constitutional conundrums surrounding apotential BrexitAllan F. atham (Centro Studi Sul Federalismo CSF-SSSUPWorking Paper Series 3/2015.)


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European engagement and the Northern IrelandAssembly has increasingly sought to engage with Europeanissues. It is quite apparent that a Brexit could easily leadto an unravelling o the Belast Agreement and undomuch o what has been achieved in the last two decadesin UK-Irish relations, undermining the institutionsestablished in order to provide or the oundations o thedynamic relationship between all parties concerned.

2. Te relationship between Northern Ireland and theRepublic o Ireland and, indeed, that between the UK andthe Republic might engage other legal issues on Brexit. Tespecial constitutional position o the Republic with the UKwould need to be reassessed i there were a vote to leave theEU especially as it could lead to the creation o an externalEU border across the whole o Ireland.

Conclusion on Part 1

Te theme o Part 1 o this paper has been a broad outline othe immediate constitutional issues o law that might ariseafer a vote to leave the EU. Tey demonstrate the scope or ausion between law and politics ollowing Brexit. Sometimes theraising o legal issues, as opposed to their definitive resolution,can have considerable political impact. Moreover, by no means

all the possible questions o law have been identified and, orexample, separate questions might arise with respect to Crowndependencies and British Overseas erritories.

What is also clear is that the process o negotiating exit termsis likely to generate detailed substantive questions o law, manyo which will need to have been anticipated well in advance othe Article 50 process. Part 2 now ocuses on one especially

important area the rights o EU citizenship.


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PAR 2A Vote or Brexit EU Citizenship Rights

EU citizenship rights

As oreshadowed earlier, the ocus o Part 2 is on rights o EUcitizenship and the discussion contemplates the UK electing towithdraw rom the EU ollowing the reerendum. Tereore,unless otherwise stated, EU citizens reerred to below arenot taken to include British citizens. It is also important todistinguish at the outset between the rights described below ascitizenship rights, which attach specifically by virtue o holdingEU citizenship and other rights derived rom EU law applicableto anyone in the territory o the EU such as, or example, rightsunder employment law derived rom the EU. Te EU hascompetence in a broad range o sectors and EU law, thereore,provides or rights beyond those o EU citizens. Subject to the

problems o disentangling EU and UK law discussed in Part 1,these rights would also cease to exist insoar as contrary provisionwas not made in domestic law.

Te principal rights o EU citizens

EU citizenship is a status that derives rom and is parasitic onnational citizenship. Article 20(1) FEU (ex 17 EC), which

establishes EU citizenship, acknowledges this in two ways: first,by expressly defining EU citizenship by reerence to national


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Importantly, EU undamental rights contained in the Chartero Fundamental Rights o the EU are not rights conerred byvirtue o holding EU citizenship. Article 51(1) o the Charterdelimits its scope o application and provides that it applies tothe institutions, bodies, offices and agencies o the Union and toMember States only when they are implementing Union law.45Te effect o Article 51(1) is that the Charters jurisdiction is notdefined by the nationality or citizenship o the individual wishing

to rely on it but rather by whether his or her legal situation allswithin the remit o EU competence.46 Tereore, holding EUcitizenship does not, in and o itsel permit an individual toinvoke the Charter rights.

O the illustrative list o EU citizenship rights provided in Article20(2) FEU, the right to ree movement (Article 21) is the mostsignificant in practice. Te right has several components: Article

21 applies by virtue o the holder possessing EU citizenship alone,whereas EU citizens who are conducting economic activity acrossMember State boundaries (to work as an employee or sel employedperson in another Member State, or to provide temporary servicesin another Member State, or to make financial transactionsacross Member State boundaries) may rely on the commercialree movement provisions o the FEU in itle IV.47 Both thecitizenship right in Article 21 and the commercial ree movement

45 Tis has been interpreted by the CJEU to mean within the scope o EU law:Case C-617/10 Fransson [2013] ECR nyr.

46 Tis is a complicated question that alls outwith the scope o this paper. Fora detailed consideration o the scope o EU law and the Charter see RichardGordon QC and Rowena Moffatt, EU Law in Judicial Review, 2nd edn, chapters6 and 12.

47 Free movement o workers (Article 45 FEU, ex 39 EC), reedom o

establishment (Article 49 FEU, ex 43 EC), ree movement o services (Article56 FEU, ex 49 EC), ree movement o capital and payments (Article 63 FEU,ex 56 EC).


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rights in the FEU have been given specific effect in EU secondarylegislation and the case law o the CJEU. Te central instrumento secondary legislation regulating the conditions upon which EUcitizens may move and reside in other Member States is Directive2004/38/EC48(the Citizens Directive). Te CJEU has interpretedboth the Citizens Directive and reaty rights to develop reemovement rights. In particular, it has relied upon the principle onon-discrimination on grounds o nationality in Article 18 FEU

(ex 12 EC) to coner rights to, or example, various welare benefitsand protection against expulsion not expressly conerred by EUprimary or secondary legislation.49

As noted earlier, what are reerred to in this paper as EUcitizenship rights are to be distinguished rom rights that deriverom EU law but are not specifically related to the EU citizenshipo the holder. Tese other rights deriving rom EU law apply to

anyone within the scope o EU law50

(third country nationals aswell as EU citizens and EU citizens who have not moved outsideo their country o origin). Amongst the most significant o theserights are those relating to, or example, non-discrimination on

48 Directive 2004/38/EC o the European Parliament and o the Council o 29April 2004 on the right o citizens o the Union and their amily membersto move and reside reely within the territory o the Member States, OJ 2004

L518/77.49 See, e.g., Case C-184/99 Grzelczyk [2001] ECR I-6193 (general social assistance

payments may be available or migrant students where they are to host statenational students), Case C-140/12 Pensionsversicherungsanstalt v Brey[2014] 1CMLR 37 (recourse to public unds must not automatically result in revocationo a right o residence and subsequent removal). Although the more recenttrajectory o the case law is more restrictive: seeCase C-333/13 Dano [2015]ECR nyr (Member States may reuse claims o social assistance to EU citizenswho have no intention to work) and Case C-67/14Alimanovic [2015] ECR nyr(German restriction o social assistance to an upper limit o 6 months ollowingthe cessation o employment was ound to be compatible with EU law).

50 See n 46 above.


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grounds o race, gender, sexual orientation, age and disability inthe employment context.51 Tese are not EU citizenship rightsbut rights that accrue by virtue o EU legislative competence in aparticular sector.

EU citizenship rights in the UK

As analysed in Part 1, the EU citizenship rights (and all otherrights created by EU law) must be expressly incorporated intoUK law in order to have domestic effect. Te EU ree movementrights in the FEU have been ound to be directly effective beoreUK courts. Tis means that individuals may rely on the EU reatyrights directly beore domestic courts to enorce their EU rights inthe absence o a domestic implementing measure providing thesubstance o the right.52Te majority o the EU citizenship rightsare, however, given effect in domestic legislation, primarily, through

the Immigration (European Economic Area) Regulations 2006 (theEEA Regulations).53Te EEA Regulations purport to implementthe requirements o the Citizens Directive as well as other EUcitizenship rights recognized in the jurisprudence o the CJEU.54

Te ree movement rights held by EU citizens as implementedinto UK law by the EEA Regulations do not adhere to thelogic o national immigration control. Since the development

o the modern idea o the state, immigration control has beenassociated with wide-ranging executive power and discretion

51 See urther, e.g. Ellis and Watson, EU Anti-Discrimination Law, secondedn, 2012.

52 See, e.g., in the case o Article 21 FEU, Case C-34/09 RuizZambrano[2011]ECR I-1177.

53 SI 1003/2006.

54 Te extent to which they do this is, in some instances, questionable. See, e.g.,the interpretation o the judgment o the CJEU in Case C-456/12 O & B inreg 9 o the EEA Regulations.


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over the entry and residence o migrants (that is, individualswho do not have the nationality o the country in which theyare territorially present or seek to enter). Tis position relies asits premise on an absence o the right on the part o migrants toenter and remain in states other than that o their nationality.55As such, in domestic immigration law, the right to enter andremain is constituted by the immigration documentation(generally a visa or vignette in the holders passport) granting

leave to enter or remain or a specified period. However,significantly, EU ree movement law is different in that anyimmigration documentation that may be obtained is merelydeclaratory o the rights to enter and reside in a Member Stateother than an EU citizens state o nationality.56Te rights o entryand residence are constituted by the EU reaties and secondarylegislation and engaged by the holder o EU citizenship movingto another Member State and undertaking one or more o theactivities prescribed by the reaties (including residence as asel-sufficient person). What this means in practice is that EUcitizen migrants are in a ar stronger position vis--vis their hoststates than are nationals rom so-called third countries. In the

55 Te classical, absolutist notion o the principle is expressed by the eighteenthcentury political philosopher and diplomat Emmerich de Vattel: [o]ne o the

rights possessed by the supreme power in every state is the right to reuseto permit an alien to enter that state, to annex what conditions it pleases tothe permission to enter it, and to expel or deport rom the state, at pleasure,even a riendly alien, especially i it is considered that his presence in the stateopposed to its peace, order, and good governance, or to its social or materialinterests. Emmerich de Vattel, Law o Nations, book 1, s. 231; book 2, s. 125,cited in John Finnis,Nationality, Alienage and Constitutional Principle [2007]LQR 417, p. 420. See also expressions to this effect in the courts, eg,Musgrove vChun eeong oy[1891] AC 272.

56 Te purpose o the residence documentation is simply evidential confirmationo EU citizens status; it is not a source o their rights: see Case 157/79 R vPieck[1981] QB 571.


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UK, EU citizens do not require leave to enter and/or remain.57Tey are not, however, assimilated to British citizens and remainsubject to immigration control.58 Tis means that EU citizensdiffer rom British citizens in (at least) three important ways:first, EU citizens (who are not British citizens) may be expelledand/or excluded rom the territory o the UK; secondly, EUcitizens (who are not British citizens) may not vote in nationalgeneral elections (including the EU reerendum itsel); and

thirdly, some EU citizens (who are not British citizens) may beexcluded rom some benefits available to those with a right oabode in the UK.59

EU citizenship rights and Brexit

Given that EU citizenship is dependent on a person holdingthe nationality o an EU Member State, i a person is no longer

the national o a Member State (because the state o his or hernationality is no longer a member o the EU), that individual isno longer an EU citizen. Te EU citizenship status created bythe EU reaties has no independent existence ollowing a Stateswithdrawal rom the EU. It is important, however, to separate EUcitizenship as a status rom the rights enjoyed as a matter o EUcitizenship. Whilst the status would inevitably be extinguishedby the UKs withdrawal rom the EU, the same may not be said

automatically o the rights derived rom EU citizenship. Whatwill happen to the EU citizenship rights in the event o the UKwithdrawing rom the Union depends on two variables: first, the

57 Immigration Act 1988, s. 7(1).

58 In UK law, the right o citizens to be ree rom immigration control is calledthe right o abode, rom which, as the Immigration Act 1971 makes clear,non-British EU citizens are excluded: Immigration Act 1971, s. 2.

59 Te exclusion o some EU citizens rom benefits in the UK operates on thebasis o a habitual residence test, this is automatically satisfied by those witha right o abode but this is not the case in respect o EU citizens.


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nature o the legal situation that replaces EU membership (andin particular whether there is an agreement, and i so, its terms);and secondly, whether the citizenship rights in question are heldby an UK citizen in the EU or an EU citizen in the UK. Tesescenarios are considered below.

Scenario 1: successor agreement

Part 1 contains a detailed analysis o Article 50 o the EU which,as noted earlier, provides a comprehensive and sel-containedscheme o withdrawal. What can be said at this stage is that therequirement that negotiations take place and the stipulation thatin the absence o an agreement setting a date or withdrawal, atwo-year period (which may be extended i unanimously agreed)must elapse rom the initial notification o the intention to leave,anticipates that some orm o agreement would be reached. Indeed,

in political terms the nature o the political consequences o UKwithdrawal or both British and EU citizens make the prospectthat no successor agreement would be reached highly unlikely.What would happen to existing rights would, o course, dependon the precise orm and contents o any uture agreement.60Whilstthis is impossible to predict with any certainty, there is moreclarity as regards what any uture agreement would be unlikely toresemble. For example, it is very likely that i the UK withdraws

rom the EU, it will also withdraw rom the EEA Agreement (allEU Member States are signatories to the EEA Agreement as wellas Norway, Iceland and Liechtenstein). As recognized in the UKlegislation implementing the EU Citizens Directive (the EEARegulations), the EEA Agreement replicates the ree movement

60 Noteworthy in this context is Article 2 o the Protocol attached to theGreenland reaty which clarified that there would be a transitional period

during which Greenlanders, non-national residents and businesses withacquired rights under EU law would retain these rights: Leaving the EU Houseo Commons Research Paper 13/42 1 July 2013.


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provisions o the EU and extends it to the three non-EU statesmentioned earlier. Given that remaining in the EEA would retainthe status quo in terms o the ree movement rights o EU (andEEA) citizens in the UK,61i the UK elects to withdraw rom theEU (or, inter alia, migration reasons) it is unlikely that it will seekto remain a party to the EEA Agreement; remaining in the EEAbut not the EU would subject the UK to the same ree movementrules as in the EU but deny any role in decision-making.

As such, a new, negotiated bilateral agreement between the EUand the UK would be a more attractive option in respect o UKinterests.62Te terms o any such agreement are, obviously, as yetunknown, however, given that the UK is highly likely to want tocontinue to benefit rom the EU internal market, it is likely thata bilateral UK-EU agreement would permit some orm o reemovement, albeit less extensive than under the EU ree movement

rules and the EEA Agreement. Te limitation o this option romthe UKs perspective is that it is extremely likely that the EU wouldrequire the same rules to apply to all o its Member States (andnot, thereore, permit the less well off states to be subject to lessavourable ree movement rules). As such, the UK may seek toagree separate individual treaties with each EU Member Statewith which it wished to have some orm o enhanced relationship.Beyond the inefficiencies associated with negotiating 27 individual

treaties, it is also important to note that since the majority o EUMember States are bound by the EU immigration acquis the UKspossibilities o negotiating avourable terms or British citizens

61 Te EEA Agreement (Article 112) contains a derogation insoar as there areserious economic, societal or environmental difficulties o a sectorial orregional nature which are liable to persist. However, any such saeguardmeasures must be restricted with regard to their scope and duration to what isstrictly necessary in order to remedy the situation.

62 Switzerland and Greenland have a series o sector specific bilateral agreementswith the EU.


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would be limited since they would, ollowing Brexit, become thirdcountry nationals and so be subject to the general EU rules ornon-EU nationals (see urther below).

Scenario 2: no agreement

As unlikely as the no agreement scenario may be, it should berecalled as discussed in Part 1 that whilst Article 50 EUrequires an attempt at agreement to be made (provided thatthe withdrawing Member State serves notice o intention towithdraw), it does not compel a

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