26/01/2017
As it is already known, the Supreme Court of the United Kingdom (UK) has given judgement on January 24, in an action brought, among others, by the Attorney General, the Advocate General for Scotland and the Attorney General for Ireland, against a decision of a Divisional Court that forced the Government to go through the Parliament before initiating the process to exit (Brexit) the European Union (EU), via notification to the European Council (Heads of State and Government) which article 50 of the EU Treaty provides.
The judgement, given after the public hearings held from 5 to 8 December 2016, is of great extent, 97 sheets and 283 recitals, and may be summarized in these three points:
1º. Questioning if the exit of the UK from the EU is suitable or not does not fall within the competence of the Supreme Court, neither the terms in which said exit will happen, nor the details of the future relationship between the UK and the EU. Such questions must be resolved by the Government and by the Parliament.
2º. Deciding legal issues raised by legal persons and entities, in the exercise of right of access to justice in a democratic society, does fall within the competence of the Supreme Court. Therefore, even though the Government is assigned with the competences in international relations and can approve or denounce International Treaties, nevertheless, when that denouncement produces its effects in the domestic policy and in the rights of the citizens, the Parliament must adopt an enabling law.
3º. To move on to the implementation of the exit process though the notification provided in the Article 50 of the Treaty on European Union, it is not necessary to meet the approval of the Scottish, Welsh or Irish Governments, because they don’t have transferred the competence in international relations. Catalonia should take good note of this question.
The quoted Article 50 determines that once the disengagement process between the UK and the EU is implemented within two years, the European Treaties shall cease to apply in the UK, and the UK will gain the third country condition. It’s clear that the British citizens will lose rights, among others, being European citizens (for example, the millions of British tourists who visit Spain every year will stop receiving free healthcare by the National health system, unless otherwise agreed.
What are the consequences of this judgement?
The first one is that the Government of Mrs. May must present a draft law to the Parliament requesting authorization to notify the Council of the European Union of the desire of the UK to exit the European Union.
The second one, that a parliamentary debate of not so uncertain result will happen, given the conservative majorities pf both Chambers, but the exit requirements the Government proposes will be discussed there.
Mrs. May stated on January 17 this year the aims of the UK in the exit negotiations with the EU, namely: to provide security and certainty during the process; regulatory autonomy without intervention of the Court of Justice of the European Union; to involve the four nations that compose the UK in the construction of a stronger country; to maintain the border with Ireland; to control immigration; to guarantee the rights of the Community citizens who live in the UK and of the British ones who live in the EU; to protect and improve the workers’ rights established by the European legislation; establish a free trade agreement with the EU; to establish new trade agreements with other countries; to make the UK the best place for science and innovation; to cooperate in the fight against crime and terrorism and to collaborate in the field of defense and foreign policy; and to make the Brexit process soft, neat, graduated and respectful of the interests of the parties.
This could be the content of the draft law the Governments submits to the Parliament and the terms in which the Parliament grants the authorization. The problem is that in the hypothesis that the Parliament will grant it on its own terms, the Government of Mrs. May would show up at the negotiating table with a mandate that could only be modifies (negotiating is compromising) with a new ratification law.
Do not forget that the exit Treaty that can be reached in the negotiations between the UK and the EU must also be approved by the European Council by a majority of 72% of the Member States, that is 19; which represent a population of 65%, that is, 288,316,000 inhabitants (Article 238.b of the Treaty on the Functioning of the EU). Neither should you forget that it must be ratified afterwards by the European Parliament.
There is no doubt that a long process lies ahead of us.
Translated by Clara Ayuso