The effect of Brexit on British industrial relations laws and its commercial and constitutional consequences

AutorJo Carby-Hall
CargoProfessor of Law and Director of International Legal Research Centre for Legislative Studies, School of Law and Politics. University of Hull

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1. The back cloth

Prior to an evaluation and an analysis taking place on Brexit and its effect on industrial relations, commerce and the British constitutionit is important, not only to define this word but also to give the background, and the necessary procedures to be followed, to bring Brexit into effect.1This will necessitate some discussion on political issues which are unavoidable in a chapter such as this. The thrust of the discussion will however be focused on how the British labour laws, commerce and the British constitution could be affected as a consequence of Brexit.

1.1. Shortened Versions for Convenience

This much used novel2expression is a shortened version of Britain ceasing to remain a Member State of the European Union. By merging the two key words, namely “Britain” and “exit” the shortened version spells Brexit. Although this author does not like this common- place and hackneyed expression, it will nevertheless be used throughout this chapter by reason of it being conveniently short thus saving space. other expressions will also be shortened for the same reason. Thus the European Union will be referred to as the EU, the United Kingdom will be referred to as the UK, the European Court of Justice and the Court of Justice of the European Union will feature as the ECJ and the CJEU respectively.

1.2. The British Referendum

A referendum held on 23rd June, 2016 with a 72.2% turnout representing thirty million people of voting age3taking part was held to decide whether the United Kingdom should remain in or leave the European Union. The “leave” supporters won overall by 52% while the “remain” supporters obtained 48% of the votes overall.

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The United Kingdom consisting of four countries, namely England, Wales, Scotland and Northern ireland, it was in England and Wales that the “leave” supporters won the majority of votes in the referendum. in England the “leave” supporters obtained 53.4% of the votes4while the “remain” supporters only achieved 46.6% of the votes.5in Wales, the “leave” camp obtained 52.5%6while the “remain” camp got 47.5%.7in Scotland the “leave” supporters obtained 38% of the votes8with the “remain” supporters enjoying 62%.9Likewise, in Northern ireland the “leave” campaigners received 44.2%10and the “remain” campaigners
55.8%.11The turnout of voters was high in each of the countries which constitute the United Kingdom thus in England it was 73%, in Wales 71.7%, in Scotland 67.2% and in Northern ireland 62.7%.
it is suggested that, apart from the political ideology of some British political parties such as UKip and the extreme right back benchers in the Conservative Government, the reasons for such a referendum result include, inter alia, (a) the charging of millions of pounds sterling a year in EU membership fees for relatively little return; (b) the fact thatfar too many EU regulationsare imposed on, andthus affecting, businesses; (c) the desire of taking back full control of the UK’s borders and reducing the number of migrants entering the UK to live and work under the fundamental EU freedom of movement of persons principle; (d) the taking back of sovereignty and democracy where laws are made in the British parliament and not in Brussels; and (e) an objection to an “ever closer union” EU policy between EU Member States and what they see asmoves towards the creation of a United States of Europe, all of which are unacceptable and unpalatable to a majority of the British population.

1.3. The Effects of the Referendum

Mr. David Cameron resigned as prime Minister on the day after losing the referendum while leaving behind him a monumental mess to be solved by Mrs Theresa May who was elected prime Minister soon thereafter.

For the United Kingdom to leave, it has to invoke Article 50 of the treaty of the European

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Union12which allows two years to agree the terms of the exit.13in her speech at the Conservative party’s annual conference in Birmingham on 2nd october, 2016 Mrs Theresa May confirmed that Article 50 will be triggered in March, 2017 meaning that the UK will probably leave in the summer of 2019 depending on the negotiations timetable and its progress. The British government will then enact “the Great repeal Bill” which will end the primacy of EU lawson the UK laws. in her Conservative conference speech Mrs May indicated that all European legislation incorporated into British laws will remain intact but that the British government will decide in accordance with its policies, which parts of the European legislation will be retained in British law and which parts will be repealed and/or amended.

Who will be negotiating the UK exit? Mrs Theresa May has set up a new government department headed by Mr. David Davies to be responsible for Brexit. Mr Liam Fox has been given the job of international trade secretary and Mr Boris Johnson was appointed foreign secretary. All three backed the “leave” campaign and will play a central part in negotiations under the watchful eye of the prime Minister who will have the final say.

The government did not do any emergency planning for Brexit ahead of the referendum and has had to hire a team of skilled negotiators to manage the complex business of negotiating the withdrawal and to ensure that the UK gets the best deal possible.

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once Article 5014has been triggered the UK has two years to negotiate its exit. The terms of the UK exit have to be agreedby the remaining 27 Member States’ parliaments. EU laws remain applicable in the UK until its membership cease by the withdrawal agreement.

There are six steps to the withdrawal procedure.15The First step which has already occurredis that the UK votes to leave the EU. Step two consists of the UK invoking Article 50 of the treaty of the European Union. This will occur at the end of March, 2017. The remaining 27 Member States of the EU have met to discuss the UK’s withdrawal. The third step consists of negotiations between the UK and the EU Commission. There is a two year time limit for negotiations. The draft negotiations will be put before the European Council’s twenty seven leaders acting by a qualified majority. The deal resulting from the negotiations needs the approval of at least twenty EU Member States representing at least 65% of their population.16The draft deal also needs the ratification by the European parliament by a simple majority of MEps. The two year negotiations can be extended further subject to the twenty seven EU Member States agreeing. Step four is triggered if there is no agreement to extend the negotiations in which case the European Union treaties automatically cease to apply to the UK. Step five consists of the UK leaving the EU whereby the UK parliament repeals the European Communities Act, 1972 and replaces it with a British Act of parliament namely the Great repeal Bill. Step six relates to the UK’s return to the EU. in such an unlikely situation, the UK would have to apply formally like any other country and go through the procedure of satisfying the various chapters required for entry.

Article 50 of the treaty of the European Union resulted from the Lisbon treaty negotiationsin 2009 and has never been used before because no other EU Member State has left the EU.17There are therefore many uncertainties and imponderables in this sphere.

1.4. “Brexit means Brexit”

Mrs18 May has coined the loud and clear three word message that “Brexit means Brexit”. Until her speech at Lancaster House on 17th January, 201719this expression was “writ in

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water” because there was much uncertainty as to what this undefined and unexplained expression meant. Such questions were initially asked as to whether or not the UK would remain a member of the European single market? Will European Union nationals retain the right to live and work in the United Kingdom and vice versa? Will there be free trade agreements with...

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