Cake, the Having and Eating thereof

“My Policy on cake is pro having it, and pro eating it.” The words of British Foreign Secretary, Boris Johnson, which while having attracted a certain amount of derision encapsulate what must in reality be the object of any foreign minister anywhere seeking to do the best for his country. But in the case of the United Kingdom and the referendum vote to leave the European Union is this a realistic objective?

It is worth at this stage considering where we have reached since 23rd June. The referendum question was a simple choice – leave or remain – and leave won, 52 per cent to 48 per cent. As the leave protagonists rapidly left the field, Theresa May, herself most likely a remainer, became prime minister following the resignation of David Cameron, whose lackadaisical approach to the referendum was bound to end in tears, and set about trying to make sense of it all, under the slogan “Brexit means Brexit.”

Part of the problem is deciding what Brexit does mean. As an aside, it is a reflection of the respect for the democratic will that despite many members of the House of Commons being personally against leaving, and despite being representatives and not delegates of their constituencies, all have accepted that the UK will leave the EU, the debate being rather upon whether Brexit should be “hard” or “soft”.

Logically, a decision to leave the EU must mean just that: to leave the EU and all arrangements that result from membership of the EU. The difficulty is that after 40 years there are many arrangements which are generally beneficial, for example the EU open skies policy, which did not feature in the referendum debate which debate was on both sides, alas, characterised by terminological inexactitude and failure clearly to explain the pros and cons of both remaining and leaving.

Therefore, each side now tries to work out what the electorate actually voted for, with views ranging from almost no change at all to leaving the customs union, the single market, and everything else; from a European Economic Area arrangement (or EU lite) to a recapturing of the buccaneering spirit when the UK was a law unto itself; from restricting immigration (something which would, with imagination, have been possible under existing arrangements) to turning the UK into a larger version of Singapore or Hong Kong; from a special deal to simply relying on WTO arrangements; from seeing leave as the beginning of a journey to seeing it as the destination. Or there are those who think it is all too horrible to contemplate so let’s just have another referendum, or take the view that as the referendum was not legally binding it may safely be ignored. As a matter of law yes, but when the government said in advance of the referendum it would accept the result, politically it may not be ignored. So Brexit does indeed mean Brexit.

In order to effect Brexit in an orderly fashion it is necessary to give notice under article 50 of the Treaty of the European union, something the government expected to do under the Crown prerogative, which power, now vested in the government, is typically used to enter into and amend treaties. Last month, a divisional court of the High Court ruled that the government may not rely on the prerogative power in this case because the European Communities Act 1972 which gives effect to the primacy of (as it now is) EU law over English law gives British citizens particular rights and, it is a constitutional principle that rights given by stature may only be removed by statute. Thus, since the serving of a notice under article 50 would bring about a removal of rights, the notice must be serves not by the government acting under the Crown prerogative, but as a result of parliament passing a law to enamel the government to serve the notice.

Despite the howls of protest by the willfully ignorant that the judges were enemies of the people, seeking to over-turn the referendum result – untrue as a matter of fact and in law (please see Constitution here) and in keeping with constitutional law since 1688 – this judgment is likely to be upheld when the case comes before the Supreme Court (not to be confused in function with the Unites States Supreme Court) next week as the government appeals the High Court judgment. The counter argument – and here I summarize brutally – is that the ECA 1972 only gives effect to the rights under the EU treaties in force from time to time and therefore do not enact into English law specific statutory rights which may only be removed by statute, does not seem to have had much of an airing before the High Court. Perhaps HMG will be better prepared this time, but I suspect they expect to lose the appeal.

Be that as it may, many of the remain persuasion have seen this as an opportunity to find other ways of watering down the effects of Brexit. Thus this week came the suggestion that on leaving the EU, the UK would still remain in the EEA until it served notice to leave under article 126 of the EEA agreement. The government has been quick to assert that the UK is a member of the EEA only by virtues of being a member of the EU, and that when it leaves the EU it thereby leaves the EEA. But is HMG missing a trick?

In The Times today, a letter from Anthony Speight, QC, and David Wolfson, QC, suggests that it is, for three reasons. First, the EEA agreement contains provisions for the free movement of goods, services and capital, but the provision of free movement of persons applies only between the European Free Trade Association states and “EC member states” which arguably would not cover the UK after it left the EU. Second, article 126 of the EEA agreement applies only to territories to which European Community treaties apply and a list of EFTA states; after leaving the EU the UK would be neither. Therefore, it must be strongly arguable that the effect is that the remaining EU countries would have to allow access to good and services and so on their territory, but that there would be no obligation on the UK to allow free movement in the UK. Third, any dispute between the UK and the remaining 27 EU member states as to whether this argument is correct would not go to the European Court of Justice. Until the UK gives notice of withdrawal from the EEA, the UK remains a contracting party. It might well be in the UK’s interests to maintain that position unless and until EU member states agree satisfactory terms in the coming Brexit negotiations.

In fact, that position, if it can be maintained might, of itself, represent a sensible compromise all round and could result in something closer to cake having and eating, than crumbs of comfort.

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