A leading expert in EU law yesterday claimed Theresa May’s Brexit Bill would struggle to deliver EU withdrawal as he accused UK ministers of profoundly misunderstanding the legal challenges ahead of them.
Sir David Edward, a former judge at the European Court of Justice, said it was “facile optimism” to think the legal challenges posed by Brexit would be overcome within the March 2019 deadline for leaving the bloc.
Speaking to Scotland on Sunday after the Brexit or so-called Repeal Bill was unveiled last week, Edward said the legislation was “full of gaps” and was not a suitable vehicle for dealing with the complexities of Brexit.
“The Brexit Bill demonstrates that the true ghastliness of the legal problems is unimaginable,” Edward said.
“It is just facile optimism to imagine that all the legal obstacles and problems can be overcome in this way and in this timescale.”
As a former European judge Edward is recognised as one of the foremost experts in European law. He is also Emeritus Professor of Law at Edinburgh University and is one of First Minister Nicola Sturgeon’s advisers on her Standing Council on Europe.
Last Thursday the UK government published the 66-page EU (Withdrawal) Bill that will repeal the European Communities Act of 1972 and bring decades of EU law on to the UK statute book.
The legislation is designed to bring EU law into UK law and create a working statute book to ensure that the UK’s exit is legally watertight and as seamless as possible.
But Edward claimed the UK government had misunderstood the nature of EU treaties and failed to take into account the complicated reciprocal rights that have developed across all countries in the EU.
“The Bill is full of gaps,” said Edward. “The basic problem is that the British government has failed to understand that the EU treaties are not normal international treaties. They create a complex skein of reciprocal rights and obligations for the member states and their nationals – including companies and partnerships as well as individuals.
“It is not just a matter of converting treaty rights and obligations into British law. For example, the rights of other EU nationals in this country are exactly the same as the rights of British nationals in other member states, and you can’t reproduce that mirror image of rights simply by changing British law.”
Edward argued that the many rights for citizens across the EU were tied in with the “four freedoms” which underpin the single market – the freedom of movement of goods, people, services and capital across borders.
The complicated nature of these rights for individuals and companies across the EU meant they could not be used as a negotiating card in the Brexit talks.
“The government has treated citizens’ rights as a matter of immigration law. They have nothing to do with immigration law,” Edward said.
“For example, the local representatives of British companies in Germany can take their spouse or partner and children, and even grandparents if they are dependent on the family. They are all entitled to education, social security and health facilities.
“They have a right to remain in Germany and their rights are the same as those of the representative of a German company in Britain.
“The British government proceeds on the assumption that this is an intergovernmental issue. It is not. Governments can’t trade the rights of EU citizens for access to bully beef.”
The publication of the Brexit Bill led to warnings of a constitutional crisis after Sturgeon and Welsh First Minister Carwyn Jones said they could not support it.
The prospect of the Scottish Parliament and the Welsh Assembly withholding consent for the legislation was raised when Sturgeon and Jones described the bill as a “naked power grab”. They complained that the devolved institutions in Edinburgh and Cardiff had been overlooked in the transfer of powers from Europe to Westminster.
Writing in today’s Scotland on Sunday (see opposite), the constitutional expert Matt Qvortrup warns that the clash between Holyrood and Westminster has the potential to become the greatest constitutional crisis since Irish independence just after the Great War.
Yesterday Scotland’s Brexit minister Michael Russell urged MSPs from other parties to back calls for changes to the Repeal Bill to guarantee protection for devolved powers.
“The First Minister has already called on Members of the Scottish Parliament to join us now, with no equivocation, to back demands for the democratically elected Scottish Government to be at the table in the UK’s Brexit negotiating strategy.
“But we also need to make a stand against the UK government retaining powers that rightfully should come to Scotland once repatriated from the EU,” said Russell.
Scotland on Sunday understands that the UK government remains hopeful that a constitutional crisis will be averted. Behind the scenes, the UK government believes the Scottish Government privately accepts it makes sense to deal with some regulatory issues on a UK wide basis and will eventually be reluctant to turn down a more powers package.
A spokeswoman for the UK government’s Department for Exiting the European Union said: “The very purpose of the Repeal Bill is to make sure the law continues to work properly on the day we leave the European Union. It means we will have a functioning statute book, and ensures that our sovereign parliament, and in some cases the devolved legislatures, can make any future changes.
“The Repeal Bill means the UK will be able to exit the EU with certainty, continuity and control. That is what the British people voted for and that is what we will deliver.”