‘That referendum’. Article 50 and Judicial Review

An application for judicial review has been launched by London Solicitors, Mischcon de Reya, with a preliminary hearing scheduled for 19 July. The claim argues that only parliament can authorise the giving of notice under Article 50.

Further details can be found in this Guardian article.

Article 50 of the Lisbon Treaty provides:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

Plenty to keep constitutional lawyers busy over the summer.

The EU Referendum. Do the Parliaments decide?

The process of leaving the EU will begin with notification of withdrawal under article 50 of the TFEU. Until this is done the UK remains a member of the EU and is under no obligation to give such notice within any time frame, or, indeed, at all. The process will end with the repeal of the European Communities Act 1972 two years after notification under article 50. This process raises a number of constitutional issues.

Is Scotland’s consent required for withdrawal from the UK? It has been suggested that this might be the case by virtue of these provisions in the Scotland Act 1998.

Section 29(2)(d)  states that a provision of an Act of the Scottish Parliament is not law in so far as it is incompatible with EU law (similar provisions appear in the legislation setting up the Northern Ireland and Welsh assemblies).

Paragraph 1 of Schedule 4 prevents modification of certain provisions of the European Communities Act 1972.

Section 57(2) states that a member of the Scottish Government has no power to act in a way that is incompatible with EU law.

However, repeal of the European Communities Act 1972 would not involve a devolved matter and the consequence would be that after withdrawal from the EU, Scotland would remain with the restriction that its legislation in devolved matters must continue to be compatible with EU law.

Who triggers article 50?

The referendum has no binding legal force and it would be open to Parliament to decide not to leave the EU, although politically this would be very unlikely. However, is it up to Parliament to decide? The conventional view is that giving notice under art. 50 falls within the Royal Prerogative and would be something for the Prime Minister. A contrary view has been expressed by various constitutional lawyers, such as Lord Pannick writing in The Times on 30 June.

“Article 50 notification commits the UK to withdrawal from the EU, and so is inconsistent with the 1972 act. Withdrawal is the object of the notification, and it is the legal effect. If, at the end of the negotiating period, parliament disagrees with the withdrawal which flows from the notification, there is nothing parliament could then do to prevent our withdrawal from the EU, which would frustrate the 1972 act. Therefore prerogative powers may not now be used.”

The new Prime Minister, whoever they may be, will be faced with the possibility of immediate legal challenge in the event of their deciding to give notification under article 50. This might well incline them to seek authorisation from Parliament.

Interesting times.

UK Referendum Result. Implications for shipping law?

As a result of the vote to leave the EU,  the UK will cease to be a member of the EU probably around November 2018 after the new prime minister has invoked article 50 and Parliament has repealed the European Communities Act 1972. How will this affect shipping law?

Substantively, not a great deal. English dry shipping is based on common law, and a few key statutes, such as COGSA 1992, and the implementation of international carriage conventions through domestic legislation – such as COGSA 1971 with the Hague-Visby Rules. Nothing European here, so no change.

With  wet shipping, the CLC and the Fund are part of our national law through domestic law implementing international conventions. Similarly,  the Wreck Removal Convention, the Salvage Convention, and the 1976 Limitation Convention. Again, nothing European here, so plus ca change.

However, procedurally,  we are very much affected by European legislation – and this is something we shall return to in a later post. As a starting point, bear in mind the two sources of EU legislation.

  • Directives which are implemented by and Act of Parliament. On our leaving the EU it will be up to Parliament to decide whether to repeal or amend the implementing legislation.
  • Directives which are implemented as statutory instruments pursuant to s.2 of the European Communities Act 1972. These will cease to be a part of national law once the European Communities Act 1972 has been repealed. If we want to keep them we need to enact them as part of our domestic law.
  • Regulations which have direct effect. These will cease to be a part of national law once the European Communities Act 1972 has been repealed. If we want to keep Regulations we need to enact them as part of our domestic law.

The Commission has spoken. No EU civil liability regime for offshore oil and gas operations.

The 2013 Offshore Safety Directive is the EU’s response to the ‘Deepwater Horizon’ incident in 2010. Although article 4(3) requires Member States to require the licensee to maintain sufficient capacity to meet their financial obligations resulting from liabilities for offshore oil and gas operations, and to put in place compensation procedures, the Directive does not address the question of civil liability in the event of pollution from an offshore installation. This remains to be dealt with by national laws. However, article 39 mandated the Commission to prepare three reports on liability: (1) on the “availability of financial security instruments, and on the handling of compensation claims, where appropriate, accompanied by proposals”; (2) on the “assessment of the effectiveness of the liability regimes in the Union in respect of the damage caused by offshore oil and gas operations”; (3) on “the appropriateness of bringing certain conduct leading to a major accident within the scope of Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law.”

On 14 September 2015 the Commission produced a single report on all three issues COM(2015) 422. It proposes no new EU legislation in these areas. With regard to financial security, although there were currently only two compensation mechanisms in the EEA, namely OPOL and Norway’s Oil Pollution Act 1998, the provisions in art. 4 of the OSD should lead to significant improvements. With regard to civil liability, it was not currently appropriate to broaden liability provisions through EU legislation, noting that in certain cases, the Brussels I and Rome II regulations would prevent differences in national regimes from disadvantaging claimants from other EU Member States. Also the financial security requirements of the OSD might lead some Member States to reappraise their existing liability regimes for offshore accidents. The Commission would be able to conclude on the need for further steps by the time of the OSD’s first implementation report in 2019. With regard to criminal liability, given the transposition deadline for the OSD of 19 July 2015, it was too early properly to assess whether EU criminal law measures were needed for achieving effective levels of offshore safety in the Union