Brexit: Where are we now? | Fieldfisher
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Brexit: Where are we now?

Recent weeks have seen a flurry of Brexit-related activity. On the legal front, while much has happened, nothing has really changed (yet). With the Prime Minister making announcements this week which suggest that the UK is likely to pursue a Brexit at the harder end of the spectrum, we give a snapshot of the latest developments on a few of the more important current issues – Article 50, the Great Repeal Bill, and mutual recognition of qualifications.

Recent weeks have seen a flurry of Brexit-related activity.  On the legal front, while much has happened, nothing has really changed (yet).  With the Prime Minister making announcements this week which suggest that the UK is likely to pursue a Brexit at the harder end of the spectrum, we give a snapshot of the latest developments on a few of the more important current issues – Article 50, the Great Repeal Bill, and mutual recognition of qualifications.


Who can trigger article 50 (AND WHEN WILL WE KNOW)?

The issue

Article 50 of the Lisbon Treaty governs the process by which a member state gives notice of its intention to withdraw from the EU; this notification fires the starting gun on the formal Brexit negotiation process which, without the agreement of all of the other member states, must be concluded within two years of the UK sending it.  There is currently fierce political and legal debate (which we foreshadowed here) on whether the UK's constitutional arrangements mean that (a) the Government is able to trigger Article 50 without recourse to Parliament (since the UK became a member of the EU by virtue of the Executive using its prerogative treaty-making powers), or (b) whether this is something that can only be done following an Act of Parliament (on the basis that it was not until Parliament passed the European Communities Act 1972 ('the ECA') that the substance of the EU treaties became part of UK law, and that rights given by Parliament can only be taken away by Parliament).  The Prime Minister has accused those who take the latter view of 'insulting the intelligence of the British people', highlighting the tension between the direct democracy of a referendum as set against the UK's system of representative Parliamentary democracy. 


The challenge

On 13 and 17 October the High Court will hear actions brought on behalf of a number of claimants by Deir Dos Santos and Gina Miller, seeking a declaration that parliamentary approval is required before the Government can trigger Article 50.  To widespread surprise, the Attorney-General Jeremy Wright QC (not widely recognised as an expert in constitutional law) will lead the Government's legal team.  It seems inevitable that the unsuccessful party will appeal, and the Supreme Court is primed to hear a 'leapfrog' appeal in what is being described by very few people as the 'Brexitigation' by the end of the year.  Copies of the skeleton arguments of the Interested Parties can be found here and here.  Skeleton arguments filed on behalf of the Claimants do not appear to be publicly available.  The arguments are nuanced and it is not possible to do justice to them here but for students of/obsessives about constitutional law it is worth reading them in full.


The aftermath

Although much of the focus is on the constitutional questions, it is important to consider what, if anything, will happen if the courts hold that only Parliament can trigger Article 50.  In the first place, it appears likely that the High Court and Supreme Court would come under greater scrutiny than ever before, with inevitable criticism of 'unelected judges' 'playing politics'.  Traditionally, the courts have been slow to dive headlong into such controversies where this can be avoided, and it seems likely that to carry the day the Claimants will need to present insuperable arguments which give the judges considering the claims no choice but to grant the declaration sought.  Beyond that, it is notable that the Conservative majority in the Commons is relatively slim (with the party lacking unity on its approach to Brexit) and that it does not have a majority in the Lords.  The potential for the Government's best laid plans on Article 50 to go awry cannot be discounted, although it will be a brave MP who defies either the party whip or the will of their constituents (if indeed it can be discerned) and seeks to stymie the process of Brexit.  In addition, Her Majesty's opposition appears, at least in certain quarters, to be resigned to the process. 


Regardless, the Prime Minister is holding the line that, notwithstanding these legal actions, the Government can and will trigger article 50, announcing on 2 October that it will do so by the end of March 2017 (by which time it appears likely that the Dos Santos/Miller action will have been resolved one way or another), meaning that the UK will leave the EU by 1 April 2019.  This will give the Government just over a year until the General Election, by which time the aftershocks of the Brexit vote may be felt more substantially than at present.



Fine words

In tandem with the announcement of the Government's proposed timing for triggering Article 50, the Prime Minister also announced a 'Great Repeal Bill' to be brought forward in 2017 which would make provision for repealing the ECA.  However, as has been pointed out by the likes of former Attorney-General Dominic Grieve QC (who described the bill as 'froth'), it would not be legally viable for the UK to repeal the ECA until after it has formally left the EU (since the ECA is the mechanism which incorporates the UK's rights and duties as a member of the EU), meaning that repeal will most likely be the final stage in the UK leaving the EU, taking effect in 2019.  Accordingly, the Bill will for the moment be symbolic as much as anything.


The devil is in the detail

Even so, the Bill is not without interest.   Almost paradoxically, the Bill will not only not get rid of EU law from the UK legal system –it will preserve all pre-Brexit EU law in force in the UK at the point at which the ECA is repealed.  Thereafter, the UK will need to go through all of the laws once in force in the UK by virtue of the ECA and decide which it wants to keep and which it wants to discard.  As we previously covered here, several thousand pieces of primary and secondary legislation have incorporated EU obligations into domestic law.  The project of working through all of that will be a mammoth undertaking, particularly at a time when Parliament has much else on its plate.  In addition, a substantial number of EU Directives and Regulations currently have 'direct effect' (being directly part of UK law without requiring separate domestic legislation); it is not immediately clear how, once the UK has left the EU, these will continue to have effect.  


The Prime Minister said in her speech that changes will have to be subject to full scrutiny and proper Parliamentary debate.  The likelihood of Parliament being able to maintain effective oversight of the process appears slim.  However, trying to speed the process through the use of Henry VIII clauses (whereby an empowering statute allows secondary legislation to alter primary legislation) carries with it questions of legitimacy and proper scrutiny.  It would not be a surprise for Parliament to ask some searching questions of the Bill on this issue in particular.



Although such fundamental constitutional issues about the mechanics of Brexit are fascinating, in many ways they are as much about form rather than substance, and the real impact of Brexit on the UK will only be felt several years down the line once the practicalities are thrashed out.  For those in the regulatory sector, issues of passporting and mutual recognition of qualifications are of acute importance, and the deal which ends up being struck on free movement will have major implications for regulated professionals.  For example, there are currently just over 21,000 EEA doctors on the GMC's register who are licensed to work in Britain, and it is estimated that foreign-born doctors make up 25% of the medical workforce.  The GMC has said that regardless of the detail of any withdrawal negotiations, it wants to protect the position of EEA doctors 'who play such a vital role in the UK's healthcare system', though outgoing Chief Executive Niall Dickson has indicated that the fact that the GMC has to rely on home country education and regulation is a 'weakness in the system'. 


At present, many professions have simplified processes for registering EEA professionals in the UK than for other overseas applicants.  In particular, the Mutual Recognition of Professional Qualifications Directive attempts to provide comparisons between qualifications and experience gained in other EEA countries, and for some professions provides a form of 'pre-approval' of professional experience through European Professional Cards to streamline the process further.


Notwithstanding the GMC's view on the importance of protecting the position of EEA doctors working in the EU, it is notable that the Prime Minister appeared to suggest that NHS England will be 'self-sufficient' by 2025, with little or no need to recruit or employ foreign-born doctors.  It appears inevitable that in this, as in so many other areas, the philosophical underpinnings driving Brexit are on a collision course with the reality of how the UK works in practice.  There is much still to play for.

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