Legal Implications of Brexit event

The Centre for Democracy and Peace Building recently held an event in Belfast to stimulate and facilitate an informed debate with legal professionals on the issues that must be considered in the Referendum on continued EU membership.

Speakers:

  1. Sir David Edward KCMG PC QC FRSE
  2. Brian Doherty (Retired Head of NI devolved Government Legal Services)
  3. Claire Archbold (Deputy Head NI Government Legal Services)
  4. Attorney General for NI John Larkin
  5. John Temple Lang (Cleary Gottlieb Steen & Hamilton LLP?
  6. The Hon Mrs Justice Fidelma Macken, Chairman, ICEL
  7. Lord Alderdice, Chairman CDPB

This document provides a short summary of some of the discussion that took place.

Introduction: Lord Alderdice

Talked a little about the CDPB and how they wanted to embark on an exercise that was about attitudes and sharing.

The CDPB identified a lack of serious debate around the EU referendum rather there were populous arguments.

Referred to the legal issues around a Brexit and how it could open up the possibility of a second Scottish referendum.

Introduction to first session: Sir Paul Givan

Sir Paul highlighted a number of interesting past quotes:

The original joining by the UK of the EU has been described as ‘artful confusion to conceal fundamental issues.’

European law described by an official as “a tide flowing up the estuaries’ and later ‘a tidal wave.’

Helmut Kohl, ‘The process of Union is like the Rhine flowing to the sea. Anyone in its way is crushed against the bank.’

He pointed to a little known point in history when New Zealand argued for a single currency across the empire.

This was rejected due to the fact that it would require:

  1. A single treasury
  2. The need for a bailout
  3. It would undermine the independence the colonies has become used to

Following a vote for the UK to stay the naysayers will not go away and following an exit the consequences will be enormous.

Speaker 1. Sir David Edward

Sir David never looked on the EU as just a common market. He started his involvement in it through the CCBE in which he worked with a diverse range of people.

Sir David regrets that the debate has been framed in terms of what a Brexit means for “us” i.e. the UK. He believes, for example, that it is all of our responsibility to deal with the tragedies occurring in Southern Europe around the migrant crisis.

He outlined 3 key dates

  1. David Cameron’s letter to Donald Tusk 10th November 2015
  2. The conclusion of the negotiations of the European Council 18th and 19th February 2016
  3. EU referendum 23rd June 2016

He outlined the 4 key areas in which David Cameron wished to see reform in the EU:

  1. Economic governance
  2. Sovereignty
  3. Immigration
  4. Competitiveness

The idea has been floated, by Boris Johnston and Michael Howard, that there could be a second referendum. The Edinburgh agreement, where Denmark voted against the Maastricht treaty and it was subsequently amended to list Danish exceptions and ratified later in a second referendum.

However for Sir David Articles 49 and 50 of the Lisbon treaty put paid to any similar process happening in the UK following a referendum vote to leave. This is because Article 50 states that, in the event that a nation that has left the EU wishes to re-join, they are directed back to Article 49, i.e. back to square one.

He highlighted a scenario whereby a private citizen could delay the implementation of a Leave process, following a Leave vote, due to a reference to the European court that an individual’s rights were not being upheld. This could drag on for years.

There are unavoidable rules that UK firms would still have to follow

  1. Non-EU firms will remain subject to the competition jurisdiction of the EU. They can be fined heavily.
  2. Exports into EU must meet EU standards

There are 5 options, as he sees it, for the UK following a Brexit.

  1. Norway option. Membership of the European Economic Area. We, however, can’t just say we’d like to join EFTA because you need unanimous agreement by EFTA and EU. Would they agree to this given the UK’s lack of enthusiasm? It requires signing up to Freedom of movement and large contributions to the EU
  2. Swiss option: Bilateral agreements, there are now 120 agreements in force between Switzerland and the EU. This includes signing up to Schengen
  3. Turkish option: Full membership of the customs union. Limited access to single market. No agreements around free trade of services.
  4. Korean / Mexican option: Trade agreements
  5. WTO option: there would be tariffs on goods between EU and UK. Disputes would be settled through the WTO.

Sir David quoted Exodus 8:28. (I will let you go to offer sacrifices to the LORD your God in the wilderness, but you must not go very far.) to illustrate how this fifth option migth look.

Speaker 2: Brian Doherty, How would a Brexit impact the devolution settlement?

The devolution settlement in Northern Ireland assumes that both Ireland and the UK will remain in the European Union. It is an international agreement although not registered in the UN.

The Northern Ireland Assemble can only act in ways compatible with the EU convention of human rights act. There is a question of whether this could continue to be applied following a Brexit and Brian believes that this could be done but the government have plans to repeal this act. Regarding EU law he believes it would be bizarre for Northern Ireland to leave Europe but still be required to maintain the ‘Aki / Akey’.[1]

An external border with immigration would be a starting point. No one has put forward a vision for how we could retain the current status quo. The prior Common Travel Area does not deal with the UK being outside the EU while Ireland remains in.

There have been Unionist concerns about Irish input into Brexit and Nationalist concerns about human rights.

There have been substantial Peace Funds for Northern Ireland.

Concerning the practicalities of a Brexit Brian highlighted the potential problems of smuggling and border areas such as Louth that are currently doing economically well.

In terms of maintaining the CAP Brian believes there is no guarantee the CAP would be maintained and the UK might wish to change its policy.

Brian commented on a number of important EU cases. If a Brexit occurs the UK would no longer be protected from unfair trading acts.

Speaker 3: Claire Archbold: Extradition and cross-border criminal cooperation

Examined a number of areas to see how Brexit might affect them. Even outside the EU people require access to justice

Extradition involves European arrest warrants and a simplified system compared to that required for extradition from countries outside the EU. The EU process removes the diplomatic element and the time it takes, on average, for an extradition is 6 months for an EU country against over a year o extradite from a non-EU country. However some countries, such as Poland, are known for issuing arrest warrants for trivial reasons such as pig-theft.

Regarding deportation Claire highlighted an interesting case:

It was ruled that the UK could not deport to Dutch nationals, who had served sentence for drug smuggling, because they no longer posed a genuine threat. The conviction alone was not grounds for deportation. A further ECJ case (CS vs UK) is due to be ruled on soon.

Smuggling requires a border and some type of disparity in supply such as price etc. Drugs, people and illegal goods may be smuggled and it funds criminality

Regarding Human Trafficking Claire argued that international cooperation was a positive part of the UK response.

Civil judgements: The EU allows judgements to be recognised, for mediations to take place and child contact and maintenance etc. to continue across borders.

Claire emphasised that the referendum decision is not a binary one of ‘yes’ or ‘no’, it has many more layers than that.

Questions

During questions Sir David stated that when the ECJ is faced with two options, between de-integration / standstill and integration, the court is inclined to imply ‘you want ever closer union so we will opt for that.’

Introduction to second session: Hon. Mrs Justice Fildema Macken

Hon Justice Fidelma outlined her belief that the government in Westminster ought to adopt a position similar to that of the CDPB. There has been too much focus on London and little effort to talk to ordinary people.

She put forward that Westminster estimates that 7% of its primary legislation and 15% of its secondary legislation comes from the EU.

There will be 40,000 pieces of legislation to review following a Brexit.

Of 500 million people in Europe, 55,000 are employed by the EU.

She outlined her worries about the border situation that trade could be disrupted.

According to Hon Justice Fidelma after a Brexit those who held Irish citizenship will have EU rights but those who hold only UK citizenship will not have those rights.

Fourth Speaker: John Larkin

John larkin opened with the following statement:

‘I think that not only would the protection of fundamental rights and liberties not be diminished by a United Kingdom withdrawal form the European Union, but I think there is a prospect that the protection of fundamental rights and freedoms would actually be enhanced by such a withdrawal.’

For John the problem came down to the Luxembourg court / European Court of Justice and three fundamental problems that he perceived within it:

  1. Lack of accountability
  2. Lack of dialogue between the Luxembourg court and the national courts
  3. A lack of reasoning in its judgements

He drew attention to Opinion 213 December 2014 in which the Luxembourg Court ruled that that it could not be accountable to the European Court of Human Rights in Strasbourg (the judgements of which John Larkin finds to be much more reasoned and where, for example, dissenting judgements are permitted). He highlighted five errors within this judgement.

The key error lay in paragraph 181 where he believes the Luxembourg Court demonstrates that it simply did not want to be accountable to the Strasbourg court.

For John ‘Opinion 213 shows how far the court (Luxembourg court) will go…it’s something approaching contempt for the EU and their population.’

He continued ‘Undisclosed and undisclosable compromise is what informs their decisions.’

He finished by implying that while Louis IX France believed himself accountable to God the Luxembourg court believes itself to be accountable to no one.

Speaker 5: John Temple Lang

There is no consensus between those who advocate Brexit so it is very difficult to predict what a post-Brexit situation would look like.

There would be a Customs and Immigration frontier. However the Brexit camp have stated at different points that ‘There would be no tariffs’ and ‘they would negotiate and bargain with countries’ in which case, theoretically, they would be wiling to use the threat of tariffs as bargaining chips.

John believes a free trade agreement between the EU and UK would be likely.

Agriculture policy would be dictated by the UK. UK agriculture could not survive without subsidies and we will simply have to wait and se whether they adopt a similar policy when outside the EU.

John believes the Common Travel Area will be brought to an end. An immigration border, which there will have to be, between the UK and Ireland, would have to be imposed along this border.

There would be a possibility of ‘undesirable’ people sneaking both ways across this border.

The border would be a VAT border. This would mean increased paperwork for firms trading across the border, which would be a nuisance for them.

John disagreed with John Larkin and said that he could not see how Northern Ireland citizens would be safer in terms of their human rights, if they withdrew from both courts. (John Larkin later clarified that he was not advocating that Northern Ireland citizens would be better off outside both courts, only better off outside the Luxembourg court.)

Questions / discussion

A number of points were made around John Larkin’s argument:

Hon Justice Fidelma argued that the Luxembourg court’s judgements are not made on the basis of compromise.

She also argued that many EU countries’ courts operated as the Luxembourg court did rather than Strasbourg and that the Luxembourg court did engage in dialogue.

Sir David argued that judgements in Luxembourg did not have to be unanimous and that many cases were decided by vote.

John Temple Lang put forward that, while the Strasbourg court might have an easier style to follow it’s decisions were not necessarily easier to understand.

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[1]Having listened to the transcript and read the paper accompanying the speech I still am not sure what Brian Doherty is referring to here.