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Notification of Withdrawal Bill

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As a result of the decision of the Supreme Court requiring Parliamentary approval to invoke Article 50, the European Union (Notification of Withdrawal) Bill 2016-17 was introduced to Parliament by David Davis on 26 January 2017.

https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0132/17132.pdf

Other documents can be found at

http://services.parliament.uk/bills/2016-17/europeanunionnotificationofwithdrawal/documents.html

A briefing paper from the House of Commons Library is available at

Full Report: http://researchbriefings.files.parliament.uk/documents/CBP-7884/CBP-7884.pdf

Summary: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7884

The Bill is debated, first in the House of Commons and then in the House of Lords.

House of Commons

1st Reading

The Bill was presented to the House of Commons and given its 1st Reading on Thursday 26 January 2017. This stage is formal and takes place without debate.

2nd Reading

The 2nd Reading of the Bill took place over two days on 31 January and 01 February 2017 when MPs could debate the bill. Usually the second reading of a bill is conducted over a single day, but in this case, the time was extended over 2 days due to the importance of the bill. Parliamentary time was also extended to Midnight on the first day.

Jeremy Corbyn imposed a three-line whip on Labour MPs, directing them to vote for the Bill, because the Shadow Cabinet had agreed not to block Article 50. It is called a three-line whip because the instruction from the Labour Chief Whip is underlined three times, meaning MPs must vote as directed or risk being disciplined.

The Bill passed the 2nd Reading by 498 votes to 114 and proceeded to a Committee of the Whole House for consideration of possible amendments to the Bill.

Committee Stage

The Committee stage took place over 3 days 6th, 7th and 8th of February 2017

There were 175 Amendments to the Bill for consideration by MP’s. Details of these amendments are contained in the following documents:

Amendments – Monday 6th February

Amendments – Tuesday 7th February

Amendments – Wednesday 8th February

None of the amendments were accepted, following a number of votes, and the Bill was passed in its original form.

Report Stage and 3rd Reading

MPs approved the 3rd Reading of the European Union (Notification of Withdrawal) Bill on Wednesday (evening) 8 February 2016 by 494 votes to 122, giving a majority of 372.

The Bill was passed to the House of Lords for further scrutiny, possible amendments, and vote.

House of Lords

1st Reading

The Bill passed the 1st reading in the House of Lords on 8 February 2017.

The House of Lords is in recess from 10 February to 20 February

2nd Reading

The 2nd reading of the Bill took place over 2 days, 20th and 21st February 2017.

The 2nd reading of the Bill was completed on 21 February.

Committee Stage

The committee stage of the Bill took place over 2 days 27 February 2017 and 01 March 2017. It was completed on 01 March 2017.

By a vote of 358 to 256, the following amendment was agreed:

Baroness Hayter of Kentish Town moved amendment 9B, in clause 1, page 1, line 3, at end to insert:

“( ) Within three months of exercising the power under section 1(1), Ministers of the Crown must bring forward proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated in the same way with regards to their EU derived-rights and, in the case of residency, their potential to acquire such rights in the future.”

Report Stage and 3rd Reading

Following the Committee Stage, the Report Stage was held on 7 March 2017, the Bill was discussed in a number of sittings and Amendments were agreed.

This was followed by the 3rd reading of the Bill and after further debate, the Bill was returned to the House of Commons with amendments on 7 March 2017.

The suggested amendments are:

Ping Pong

In order for a Bill to become Law, both the House of Commons and the House of Lords must agree on the final wording in the Bill. If the House of Lords suggests amendments should be made, the Bill is passed back to the House of Commons for further debate, to consider those changes.

This process is known as “ping pong“. If the House of Commons agrees to the amendments the Bill passes on to the next stage, otherwise, the House of Commons can reject the amendments or make further changes/additions and pass the Bill back to the House of Lords for further debate. At this stage the House of Lords can accept what the Commons has decided, or offer further amendments and return it to the House of Commons. This process could continue indefinitely but can be limited by the time available for debate.

It is unlikely that the House of Lords will reject a Bill more than once, and the House of Commons has an option to use the Parliament Act to override (and ignore) amendments made by the House of Lords.

http://www.parliament.uk/about/how/laws/parliamentacts/

The Bill was received back in the House of Commons and debated on 13 March 2017. Both amendments were rejected, Amendment 1 by 335 votes to 287 and Amendment 2 by 331 votes to 286, for the following reasons

The Commons disagree to Lords Amendment 1 for the following reason—

Because it is not a matter that needs to be dealt with in the Bill.

The Commons disagree to Lords Amendment 2 for the following reason—

Because it is not a matter that needs to be dealt with in the Bill.

The Bill was returned to the House of Lords.

After further debate, the House of Lords did not insist on their amendments and the Bill completed its journey through the Houses of Parliament on 13 March 2017.

Royal Assent

This stage is when the Queen formally agrees to make the Bill into an Act of Parliament and becomes Law.

The Bill was granted Royal Assent and announced by the Speaker in the House of Commons on 16 March 2017 who stated:

I have to notify the House, in accordance with the Royal Assent 1967, that her Majesty has signified her royal assent to the following acts: Supply and Appropriation (Anticipation and Adjustments) Act 2017, European Union (Notification of withdrawal) Act 2017.

The Prime Minister can now legally begin the formal process of leaving the EU by invoking Article 50 of the Treaty on European Union (Lisbon Treaty).

Three Knights Opinion

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Law firm Bindmans LLP, based in London UK, has published a legal Opinion “IN THE MATTER OF ARTICLE 50 OF THE TREATY ON EUROPEAN UNION – Opinion“, which considers legal questions arising from the process of leaving the European Union.

This is also known as the Three Knights Opinion.

An article (17th february 2017) discussing the Opinion in more detail is available on Bindmans website at

https://www.bindmans.com/news/withdrawal-bill

The Three Knights Opinion was prepared by Sir David Edward, former judge of the European Court of Justice, Sir Francis Jacobs, that Court’s former Advocate General, and distinguished EU lawyer Sir Jeremy Lever (retired) together with two QCs Helen Mountfield and Gerry Facenna.

It explores the following questions

(i) What are the United Kingdom’s ‘constitutional requirements’ for a decision to withdraw from the European Union, within the meaning of paragraph 1 of Article 50 of the Treaty on European Union (‘TEU’)(‘Article 50’)? Do they include a requirement for an Act of Parliament approving the terms of withdrawal at the end of the Article 50 process?

(ii) Does Article 50 permit the United Kingdom to decide to withdraw from the European Union, and notify its ‘intention’ to do so, subject to the fulfilment of constitutional requirements, such as an Act of Parliament approving the terms of withdrawal? If such constitutional requirements are not satisfied, would the notification lapse, or could it be withdrawn, before the end of the two-year period referred to in the third paragraph of Article 50?

(iii) What is the position if the United Kingdom and the European Union do not reach any agreement?

In summary, the Opinion suggests that after the European Union (Notification of Withdrawal Bill) is passed through Parliament, the Prime Minister will be able to notify the EU of the UKs intention to leave the EU, but actual withdrawal from the EU has to be authorised by Parliament after negotiations have completed.

The compete, published document is available at

https://www.bindmans.com/uploads/files/documents/Final_Article_50_Opinion_10.2.17.pdf

Background

CrowdJustice is a crowd-funding platform to raise funds specifically for legal cases.

The CrowdJustice campaign Leaving the European Union: Should Parliament decide? organised by Jolyon Maugham QC raised £10,665 pledged by 406 people.

https://www.crowdjustice.org/case/should-parliament-decide/

It posed the question “Can the Prime Minister decide whether to leave the EU or does it require an act of Parliament?”. The funds were used to take advice from leading lawyers and to write to the government to determine its position.

The People’s Challenge to the Government on Art. 50: A Parliamentary Prerogative is a campaign, organised by Grahame Pigney, which raised more tham £170,000, pledged by 4918 people.

https://www.crowdjustice.org/case/parliament-should-decide/

It was created to challenge the ability of the Government being able to trigger Article 50 without requiring an Act of Parliament.

The People’s Challenge campaign is represented by a team from Bindmans LLP led by John Halford and their barristers are Helen Mounfield QC, Gerry Facenna QC, Tim Johnston and Jack Williams.

Following on, is the crowd-funding campaign The Second People’s Challenge: helping Parliament take control on Article 50, also organised by Grahame Pigney and which has raised more than £57,000 to date.

https://www.crowdjustice.org/case/parliament-take-control/

The Second People’s campaign is lobbying MPs and Peers to assist them in their decision making process during the passage of the European Union (Notification of Withdrawal Bill) through Parliament and afterwards during subsequent negotiations with the EU.

The Three Knights Opinion detailed above was commissioned, published and circulated to all Peers using funds provided from these self styled “People’s Challenge” campaigns.

Other documents produced include:

A guide to EU citizenship rights at stake in the negotiations (which was circulated to all MPs).

https://www.bindmans.com/uploads/files/documents/UK_Parliament_EU_Citizenship_rights_booklet.pdf

An amendment briefing sent to all Peers

https://www.bindmans.com/uploads/files/documents/EU_Notification_Bill_-_Lords_Committee_Stage_briefing_on_the_parliamentary_approval_amendment.pdf

Government White Paper

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David Davis presented a White Paper “The United Kingdom’s exit from and new partnership with the European Union White Paper” to Parliament on 2 February 2017. This paper describes the Governments plan for leaving the EU and outlines the 12 point plan previously mentioned by Theresa May.

The main areas (12 points) extracted from the published paper are:

  1. Providing certainty and clarity – We will provide certainty wherever we can as we approach the negotiations.
  2. Taking control of our own laws – We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK.
  3. Strengthening the Union – We will secure a deal that works for the entire UK – for Scotland, Wales, Northern Ireland and all parts of England. We remain fully committed to the Belfast Agreement and its successors.
  4. Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area – We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system and which protects our strong ties with Ireland.
  5. Controlling immigration – We will have control over the number of EU nationals coming to the UK.
  6. Securing rights for EU nationals in the UK, and UK nationals in the EU – We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can.
  7. Protecting workers’ rights – We will protect and enhance existing workers’ rights.
  8. Ensuring free trade with European markets – We will forge a new strategic partnership with the EU, including a wide reaching, bold and ambitious free trade agreement, and will seek a mutually beneficial new customs agreement with the EU.
  9. Securing new trade agreements with other countries – We will forge ambitious free trade relationships across the world.
  10. Ensuring the UK remains the best place for science and innovation – We will remain at the vanguard of science and innovation and will seek continued close collaboration with our European partners.
  11. Cooperating in the fight against crime and terrorism – We will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe.
  12. Delivering a smooth, orderly exit from the EU – We will seek a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements that will exist between us.

The White Paper is 75 pages log and can be obtained from the Government website at:

https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper

A local copy of the paper is also available here:

The United Kingdoms exit from and partnership with the EU

Process to invoke Article 50

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Although it would seem that the process for invoking Article 50 should be straightforward, a legal case was initiated to determine whether the Government can use Royal Prerogative Powers to start the process of leaving the EU.

Gina Miller engaged the City law firm Mishcon de Reya to challenge the authority of the British Government to invoke Article 50 of the Treaty on European Union using prerogative powers, arguing that only Parliament can take away rights that Parliament has granted.

After a hearing on 03 November 2016, the High Court of Justice ruled that Theresa May cannot use the Royal Prerogative Powers to invoke Article 50 and begin the process for withdrawal from the EU and she needs prior Parliamentary approval.

Judgement: https://www.judiciary.gov.uk/wp-content/uploads/2016/11/r-miller-v-secretary-of-state-for-exiting-eu-amended-20161122.pdf

Summary: https://www.judiciary.gov.uk/wp-content/uploads/2016/11/summary-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf

(LOCAL COPIES)

The Government decided to appeal the High Court’s decision and took the appeal directly to the Supreme Court.

The Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.

https://www.supremecourt.uk

The appeal hearing was held from 5-8 December 2016 with the decision to be issued in January 2017.

Details of the case and proceedings can be found at

https://www.supremecourt.uk/news/article-50-brexit-appeal.html

The judgement by the Supreme Court was issued on 24 Jan 2017. The Secretary of State’s appeal was dismissed by a majority of 8-3. In a joint judgement of the majority, the Supreme Court holds that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union.

The judgement documents are available at:

Judgement : https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf

Summary: https://www.supremecourt.uk/cases/docs/uksc-2016-0196-press-summary.pdf

(LOCAL COPIES)

A useful article, interpreting details of the judgement by Robert Craig: Miller Supreme Court Case Summary can be found at

https://ukconstitutionallaw.org/2017/01/26/robert-craig-miller-supreme-court-case-summary/

The Supreme Court decided that the Government is not obliged to consult with the UK’s devolved assemblies before triggering Article 50 and also ruled that once Article 50 is triggered, it cannot be reversed.

The form that the legislation should take was not defined and is entirely a matter for Parliament but Parliament will need to pass a new bill that gives Government the authority to trigger Article 50.

A statement, following the ruling, from Number 10 added :

The British people voted to leave the EU, and the Government will deliver on their verdict – triggering Article 50, as planned, by the end of March. Today’s ruling does nothing to change that.

It’s important to remember that Parliament backed the referendum by a margin of six to one and has already indicated its support for getting on with the process of exit to the timetable we have set out.

We respect the Supreme Court’s decision, and will set out our next steps to Parliament shortly.

Opposition leader Jeremy Corbyn reacted to the judgment by saying that his party will not seek to frustrate the will of the British people, but did say that “Labour will seek to amend the Article 50 Bill to prevent Conservatives using Brexit to turn Britain into a bargain basement tax haven.”

Brexit Update – Part 1

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An update on what’s been happening since my last article on 24 July 2016

In one of his first comments following the result of the EU Referendum, Jeremy Corbyn stated that:

“The British people have made their decision. We must respect that result and Article 50 has to be invoked now so that we negotiate an exit from European Union. Quite clearly negotiations must take place. There must be the best deal possible in order to ensure strong industries in Britain stay strong and strong industries that have big export markets protect retain those export markets. But we are in some very difficult areas.”

During the summer holiday period in 2016 there did not appear to be much happening.

Although a new leader was appointed by the Conservative Party in a relatively short timeframe, it took longer for the Labour Party to make a choice following the challenge to the leadership of Jeremy Corbyn.

After a long process, which began shortly after the EU Referendum, Jeremy Corbyn retained the leadership of the Labour Party with a convincing majority when the result was announced on Sep 24.

Theresa May coined the phrase “Brexit means Brexit” in response to questions about what Brexit meant but with little extra definition.

BREXIT Negotiations

The type of relationship that the UK has with the EU following Brexit has been under much discussion with speculation about a “Hard Brexit”, a “Soft Brexit” or whether to follow the relationship that other countries such as Norway and Switerland have with the EU.

It is not clear where the terms “Hard Brexit” and “Soft Brexit” originated. The terms are used in an attempt to describe the type of relationship with the EU that may result after negotiations are completed. “Hard” implying that the UK ends up trading with the EU under the rules of the World Trade Organisation (WTO) with no tariff free access to the EU Single Market, and has no obligations to the EU. “Soft”, on the other hand, implies that the UK retains access to the EU Single Market but in return accepts some form of restricted membership of the EU and includes following the 4 fredoms of the EU which are defined as the freedom of movement for goods, people, services and capital across national boundaries.

The UK is currently excluded from meetings with other EU countries when the topic relates to the UK leaving the EU.

Statements issued by EU leaders have also emphasised on numerous occasions that:

  • There will be no discussion on Brexit until Article 50 has been invoked.
  • The UK must honour the principle of free movement of people if it wants to retain access to the single market after it leaves the EU.

Details about the 4 freedoms from

http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_3.1.3.html

“One of the four freedoms enjoyed by EU citizens is the free movement of workers. This includes the rights of movement and residence for workers, the rights of entry and residence for family members, and the right to work in another Member State and be treated on an equal footing with nationals of that Member State. Restrictions apply in some countries for citizens of Member States that have recently acceded to the EU. The rules on access to social benefits are currently shaped primarily by the case law of the Court of Justice.”

The former French Foreign Minister Michel Barnier has been appointed by the European Commission to lead the negotiations on behalf of the EU.

At the beginning of October, during the Conservative Party conference, Theresa May announced that the UK would begin formal Brexit negotiations by the end of March 2017. She also promised to introduce the Great Repeal Bill to remove the European Communities Act 1972 from the statute book and enshrine all existing EU law into British law. The repeal of the 1972 act will not take effect until the UK leaves the EU under Article 50. The Government has indicated that these legal changes within the Bill would take effect on “Brexit Day”: the day the UK officially leaves the European Union (EU).

Theresa May’s speech can be seen at https://youtu.be/08JN73K1JDc

The Secretary of State for Exiting the European Union, David Davis, has later emphasised the difference between the Article 50 process and the Great Repeal Bill:

The great repeal Bill is not what will take us out of the EU, but what will ensure the UK statute book is fit for purpose after we have left. It will put the elected politicians in this country fully in control of determining the laws that affect its people’s lives—something that does not apply today.

A Research Briefing Legislating for Brexit: the Great Repeal Bill was issued on 21 November 2016. A summary is available at

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7793

where you can also find a link to the full report.

Alternatively a copy of the full report is available here

https://politick.co.uk/wp-content/uploads/2017/02/CBP-7793.pdf

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