The Prime Minister, speaking at 11.45 am today at Lancaster House in London, gave a slightly clearer indication as to the Government’s likely direction relating to the UK’s secession from the EU. The Prime Minister’s general position was conveyed in a number of ways – not all as evident as others.
The words ‘A Global Britain’ – alluding to a trading position beyond the Single Market - were clearly noticeable on the boarding behind her. More subtly, a Black Watch tartan trouser suit may have been selected subliminally or may have been selected with great care and forethought.
Whichever, there was, arguably, thereby conveyed a subtle visual emphasis of Mrs. May’s view of the importance of continuing UK Union, not least including Scotland, in a post-EU future. That particular aspect may, politically, yet be like driving round a precipitous Highland bend without any crash barrier for security.
Mrs. May made public her broad approach regarding the UK’s departure from membership of the European Union (EU) in a speech titled: ‘The government's negotiating objectives for exiting the EU’. There was some clarity regarding constitutional matters. The Westminster parliament will vote on the Government’s final Brexit package. And the Government could hardly argue otherwise with Mrs May stating, at an early moment in her speech today, that, “the principle of Parliamentary Sovereignty is the basis of our unwritten constitutional settlement”.
In anticipation (jump before you’re pushed) of the UK Supreme Court upholding the principle of Parliamentary Sovereignty in its forthcoming judgment on the Brexit issue (a consistent and discernible stance by the Court given its perspective on the matter aired in the HS2 case in January 2014) Mrs May stated: “And when it comes to Parliament, there is one other way in which I would like to provide certainty. I can confirm today that the Government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force.”
Further certainty was offered in that the devolved governments would not have any legislative participation beyond their views being considered through existing non-legislative channels of communication (such as Devolution Guidance Note 10 - the ‘DGN 10’ referred to by the Advocate General in the Brexit case) between Westminster and Holyrood.
Mrs May said: “We have already received a paper from the Scottish government, and look forward to receiving a paper from the Welsh government shortly. Both papers will be considered as part of this important process. We won’t agree on everything, but I look forward to working with the administrations in Scotland, Wales and Northern Ireland to deliver a Brexit that works for the whole of the United Kingdom.” In particular the Government’s position will accord with what the UK Supreme Court will surely confirm in its forthcoming Brexit judgment - that a Legislative Consent Motion is not a necessary element of the UK’s constitutional framework in this instance.
Lord Sumption, not least, indicated that the constitutional position was that Article 50 TEU, though having knock-on effects on devolved matters, was not, itself, a devolved matter. Lord Mance, crucially, reiterated the respective positions of Westminster and Holyrood as demonstrated in s.28(7) of the Scotland Act 1998 which identify the constitutional supremacy of Westminster. And Lord Neuberger, amongst his fellow justices, tested the notion that s.28(8) – which, to all intents and purposes, incorporates the Sewel Convention into statutory form - was, nonetheless non-justiciable; being more of a matter for political discretion.
Quasi certainty came in the confirmation that the UK would not continue any form of membership of the Single Market. Mrs May saying: “I want to be clear. What I am proposing cannot mean membership of the single market… we do not seek membership of the single market. Instead we seek the greatest possible access to it through a new, comprehensive, bold and ambitious free trade agreement. That agreement may take in elements of current single market arrangements in certain areas – on the export of cars and lorries for example, or the freedom to provide financial services across national borders – as it makes no sense to start again from scratch when Britain and the remaining Member States have adhered to the same rules for so many years.”
However there does ‘Remain’ (excuse the pun) some continuing scope for ‘certain ambiguity’ as to detail -particularly on the topic of the UK’s relationship to the Customs Union - and some doubt regarding likely practical consequences for the law. One significant example for future legal uncertainty is the exact nature of employment law in a post-secession UK. This is likely regardless of the political party in power. Mrs. May stated that “we will ensure that workers’ rights are fully protected and maintained. Indeed, under my leadership, not only will the government protect the rights of workers set out in European legislation, we will build on them”.
But this will likely only be determined in practice by the exact nature of economic fallout as the dust settles in a post-Brexit environment. The conditional phrase, “this government… will make sure legal protection for workers keeps pace with the changing labour market”, allows scope for significant flexibility in a downturn.
The Prime Minister said that, from day 1 following formal secession, the UK would still evidence the acquis communautaire (the entire body of EU law such as through treaty, legislation, case law etc) incorporated into domestic law up to that moment. By analogy that means that, the family home, used over some 40 years as a bed and breakfast, will end that aspect of communitarianism and return to being solely a domestic home. However there won’t be any need to demolish the building and start again. Instead things can be tailored to a domestic environment on an ‘as-and-when- needed basis.
Lord Neuberger has recently hinted that the UK’s EU membership may, in the broader scheme of things, represent little more than a ‘blip’ in the centuries history of the Common law. The Common law of England and Wales is a sufficiently flexible creature to accommodate such change.
The remaining bridge between UK and EU is the customs union. The Prime Minister has said that – unlike departure from the Single Market – she has no hard line on total departure from the Customs union. “I do want us to have a customs agreement with the EU. Whether that means we must reach a completely new customs agreement, become an associate member of the Customs Union in some way, or remain a signatory to some elements of it, I hold no preconceived position. I have an open mind on how we do it. It is not the means that matter, but the ends.”
What is, perhaps, a curious aspect of Mrs May’s speech is the timing. The PM could/should have said almost all of this much earlier. Perhaps the only reason for delay was to incorporate the ‘front of the queue’ rhetoric from the Trump administration in contrast to the Obama ‘back of the queue’ comment. That seems as curious as Mr. Gove’s re-emergence into the limelight as a central operator. Perhaps the two curiosities are connected. With a sense of looking after national interests Mrs May’s speech did contain a hint of Trump rhetoric.