The law researched and gathered below was for the ‘UNION’ exhibition, The Synergy Centre, 16-19 June 2016. Excellent resources were R. Gordon and R. Moffatt’s ‘Brexit: The Immediate Legal Consequences’, The Constitution Society, London, 2016, a comprehensive summary of what lies ahead legally, as well as Lindsay Stirton’s ‘On the Implementation of EU Law in the UK’, University of Sussex, 2015.
Preamble to the Treaty of Paris, establishing the European Coal and Steel Community (ECSC)
CONSIDERING that world peace can be safeguarded only by creative efforts commensurate with the dangers that threaten it,
CONVINCED that the contribution which an organized and vital Europe can make to civilization is indispensable to the maintenance of peaceful relations,
RECOGNIZING that Europe can be built only through practical achievements which will first of all create real solidarity, and through the establishment of common bases for economic development,
ANXIOUS to help, by expanding their basic production, to raise the standard of living and further the works of peace,
RESOLVED to substitute for age old rivalries the merging of their essential interests; to create, by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conflicts; and to lay the foundations for institutions which will give direction to a destiny henceforward shared,
HAVE DECIDED to create a EUROPEAN COAL AND STEEL COMMUNITY
Preamble to the Treaty of Paris, establishing the European Coal and Steel Community (ECSC)
Signed by six States (Belgium, France, Germany, Italy, Luxembourg and the Netherlands) on 18 April 1951, the Treaty of Paris was the founding document of the now EU. The ECSC was responding to a post-war need to cooperate and bring together a shared direction on coal and steel, and has now expanded to the vast complex institutions of the EEC to EC to EU that we know today.
EU and Council of Europe
EU is legally and politically separate from the Council of Europe (ECtHR and EHCR). If the UK left the EU, this would not affect its accession to the ECHR and the implementation of the HRA 1998, although this is often confused as EU law and Convention rights being one and the same thing.
Conversely, through the EU’s accession to the ECHR (Treaty of Lisbon 2009), member states have to comply with human rights standards protected under the ECHR.
Article 50 TEU
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’
Leaving and Article 50
If a member state wishes to leave the EU it can do through initiating the procedures of article 50, whereby over the course of 2 years, the member state can leave and EU law no longer applies to their domestic frameworks.
The manner in which it can leave once article 50 has been put in process can only be discussed by the remaining 27 member states and not the leaving state concerned.
In the case of the UK, and in accordance with article 50 (1), the ECA 1972 could similarly be repealed, to allow exit from the EU. It is under the etiquette of international law that we comply with article 50 to give the EU enough notice of our leaving the union.
Article 49 TEU
Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State
Article 49 and Re-Joining
If a state has withdrawn or is in the process of withdrawing, it can apply to re-join as in any other accession application to the EU under article 49.
Parliamentary Sovereignty and Referenda
R. (on the application of Southall) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 1122 (Admin)
British Railways Board v Pickin  A.C. 765
These cases, along with many others, refer to the primacy of Acts of Parliament. This means that referendums are advisory and not binding, as the will of Parliament should be supreme, therefore they can make and unmake any law, choosing to follow the outcome of a referendum or not.
In practice, the referendum on 23 June has no legally binding nature. This is also furthered by no clear stipulations to the contrary in the European Union Referendum Act 2015.
However, the political weight of the majority vote will mean that Parliament must consider the implications of not following the decision of the population at large.
s. 29(2)(d) of the Scotland Act 1998; s. 108(6) of the Government of Wales Act 2006; Section 24 of the Northern Ireland Act 1998, place stipulation and at times prohibit (according to the individual legislation) acts incompatible with EU law.
Devolved Matters after Exit
Each of the devolution statutes incorporates the European Convention on Human Rights and EU law directly into the powers and duties of the devolved legislatures, meaning that upon Brexit, each of the devolved powers will have differing levels of integration and accession to EU law to Westminster.
Article 51 (1) Charter of Fundamental Rights of the European Union
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.
UK EU Citizenship Rights in the EU after Brexit
The status of protections under the Charter of Fundamental Rights of the European Union for UK citizens travelling to the EU after Brexit, would remain the same.
Article 51(1) stipulates that the Charter’s jurisdiction is not defined by the nationality or citizenship of the individual wishing to rely on it but rather by whether his or her legal situation falls within the remit of EU competence.
Article 20(2) TEU
Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.
Brexit and Migration
“In the absence of an agreement, domestic immigration law would apply to EU citizens in the UK and British citizens in the EU … In both cases, at least in theory, Brexit could leave individuals without immigration status and, as such, liable to the coercive apparatus of immigration control including detention and expulsion.”
(Gordon, R. and Moffatt, R., ‘Brexit: The Immediate Legal Consequences’, The Constitution Society, London, 2016, 11)
European Economic Area Regulations 2006
EU citizenship rights Are given effect in domestic legislation through the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”), SI 1003/2006.
EEA and Brexit
If the UK withdraws from the EU, it will also likely withdraw from the EEA Agreement (all EU Member States are signatories to the EEA Agreement as well as Norway, Iceland and Liechtenstein).
The EEA Agreement repeats the free movement provisions of the EU and if the UK seeks to leave on grounds of immigration reasons, it could just leave the EEA and not the EU.
Conversely, remaining in the EEA but not the EU would subject the UK to the same free movement rules as in the EU but no role in decision-making.
Schengen borders Code regulation 265/2006/EC; Regulation 539/2001/EC; Regulation 810/2009/EC
UK Nationals Leaving for EU after Brexit
Harmonised EU immigration norms provide common standards for border and visa controls and if we were to leave the EU, UK citizens would become subject to third country border regulations, relating to visas and travel for work, tourism, etc.
Article 18 TFEU (ex 12 EC)
Principle of non-discrimination on grounds of nationality confer rights to, for example, various welfare benefits and protection against removal from EU states, not expressly conferred by EU primary or secondary legislation.
Article 67 TEU
1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.
3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.
Refugees and Asylum
2005 Asylum Procedures Directive and the Charter of Fundamental Rights codify in EU law the 1951 UN Geneva convention on refugees (as amended by 1967 Protocol). The Convention, to which the UK is a signatory, states that refugees should not be penalised for their illegal entry or stay, while the recent Le Touquet Treaty (2003) between England and France effectively moved the UK border to Calais. Freedom of movement does not mean no border checks, and the UK is not part of the Schengen agreement making it responsible for its own border and visa controls pre-Brexit.
Immigration Act 1971, s. 3 and Immigration and Asylum Act 1999, s. 10
The UK system has a system of entry clearance for nationals of states requiring visas to enter the UK, leave to enter and remain, plus enforced removals and detention for those present in the UK without leave, meaning our many EU migrants would be subject to these restrictions upon Brexit.
European Summit Conclusions Feb 2016
The UK has a legal right never to join up to the euro against its will, an existing and clear legal right which is spelled out in the UK’s monetary union opt-out Protocol No 15 (Protocols are a legally binding parts of the Treaties).
Secondly, under Protocol No 19 the UK is not obliged to participate in the Schengen acquis, under Protocol No 20 it is not obliged to get rid of its border controls and participated in the Schengen area.
Thirdly that it has a right under Protocol No 21 to choose whether or not to participate in new measures under the EU’s so-called “area of freedom, security and justice” and that under the Lisbon Treaty Protocol No 36, it has chosen to opt out of a number of such measures.
(found at: Lawyers for Britain, http://www.lawyersforbritain.org/reneg-ever-closer-union.shtml)
UK Differentiation pre-Brexit
The UK has its derogations and differentiation from the remainder of the EU in place, and the recent European Summit Conclusions re-confirm the protocols already in place.
The ECA 1972 brings EU law into our law, with no need to pass further Acts of Parliament each time EU law is passed.
ECA 1972, Section 2
(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies.
(2) Subject to schedule 2 of this Act… Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision … for the purpose of implementing any Community obligation of the United Kingdom …
(4) The provision that may be made under subsection (2) above includes … any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed … shall be construed and have effect subject to the foregoing provisions of this section …
ECA 1972 and Sovereignty
The supremacy of EU law means that if there is a conflict between national law and EU law in a specific area, EU law will prevail, even if the national law was passed later than the EU law.
The principle of EU law supremacy of EU law is inconsistent with the UK constitutional principle of the sovereignty of Parliament, where normally later acts automatically repeal earlier acts.
Nevertheless, this was brought in through the ECA 1972, the will of Parliament and therefore arguably means the principle of parliamentary sovereignty is retained, as we can repeal the ECA 1972 at any time.
Costa v ENEL (1964)
“By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.
The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty …”
Supremacy of EU Law
The supremacy of EU law was confirmed in the case of Costa v ENEL, a case brought before the CECJ, the European Court of Justice, that makes decisions on points of EU law. The CJEU does not rule on domestic law.
“All directly applicable and directly effective provisions of EU law would automatically cease to apply once ECA s. 2(1) and 2(2) [were] repealed … By contrast, primary legislation transposing EU law into domestic law would remain unaffected by the simple repeal of the ECA”.
(Gordon, R. and Moffatt, R., ‘Brexit: The Immediate Legal Consequences’, The Constitution Society, London, 2016, 16)
Brexit and National EU Law Provisions
If we left the EU, any provisions in force through ECA s.2 would automatically no longer apply, but other legislation enforcing EU law would have to be individually repealed.
Article 6 TEU
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
EU Fundamental Rights and Accession to ECHR
Under the TEU, the EU granted rights and freedoms under its own Charter of Fundamental Rights of the European Union, and at the same time, became subject to human rights protections under the ECHR.
The European Union Act 2011
“The European Union Act 2011 purports to put a limit on the expansion of the powers of the EU with regard to the UK. Thus any new EU Treaty might require a UK referendum to be passed before it could be ratified in the UK. The Act, however, does not affect the existing impact of EU law in the UK.”
(Stirton, L., ‘On the Implementation of EU Law in the UK’, University of Sussex, 2015)
R v Secretary of State for Transport, ex p Factortame Ltd (No 2) 1991 1 AC 603
A group of Spanish fishermen claimed Part II of the Merchant Shipping Act 1988, which denied them the right to register their boats in the UK and therefore to benefit from UK fishing quotas, that the Act was in breach of EC law.
The House of Lords, in accordance with the doctrine of supremacy of EC law, granted orders preventing the application of the relevant part of the Act.
Article 288 TFEU
Direct and Indirect Effect of EU Law
According to Article 288 TFEU, Regulations are directly applicable in all Member States and binding as soon as they are made.
Directives are binding as to their required end result, the form and method of implementation is left to the national authorities to decide.
Often, domestic law is amended so as to incorporate (or transpose) directives into domestic legislation.
These are the competencies within which the EU has the power to act, that are acquired over time, bringing together an ‘ever closer union’ through further not less integration.
When a state accedes to the EU, it agrees to take on full competencies but derogations can be made, taking into account differentiation of states’ needs.
Article 13 TEU
The European Parliament
The European Council
The European Commission
The Court of Justice of the European Union
The European Central Bank
The Court of Auditors
Article 13 TEU lists the institutions and some bodies of the EU. Other bodies created by treaties include the European Investment Bank, the European Ombudsman, the Economic and Social Committee; and the Economic and Financial Committee.
Article 267 TFEU (ex Art 234 EC)
The Court of Justice of the European Union shall have jurisdiction to give preliminary
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.
Article 267 TFEU and CJEU
The CJEU only has jurisdiction over issues pertaining to EU law, and is not a method of appeal against domestic legislative frameworks.
It is up to a member state to individually follow and implement the rulings of the CJEU.