Caribbean Trade Law and Development

Tag: Brexit

  • Brexit High Court Ruling: What does it Mean?

    Brexit High Court Ruling: What does it Mean?

    Alicia Nicholls

    In a landmark decision handed down today, the London-based UK High Court in R (Miller) v Secretary of State for Exiting the EU, has held that the Theresa May-led UK Government cannot begin the formal process of leaving the European Union (EU)  without first seeking parliamentary approval.

    As a bit of context, on June 23, 2016 52% of the British electorate voted for the UK to withdraw from the EU. However, for Brexit (British exit from the EU) to formally begin, notification of such intention by the UK must be made pursuant to Article 50 of the Treaty on European Union (Lisbon Treaty). This came into effect in 2009 and  gives an EU member state the express right to withdraw from the 28-member bloc in accordance with its own constitutional requirements and with the provisions contained in said Article. A useful synopsis of the Brexit process can be found here.

    EU leaders have stated that they do not intend to begin negotiations with the UK until Article 50 is triggered. This probably explains why British Prime Minister Theresa May has indicated that she wishes to make the Article 50 notification by March 2017.

    This latest chapter in the Brexit saga is an unexpected bump in the road for the conservative government. While Mrs.May had been part of the “Remain” camp while serving as Home Secretary in the cabinet of then Prime Minister David Cameron, she has since upon becoming Prime Minister stated in pellucid language that she intends to respect the will of the British people. She has famously stated that  “Brexit means Brexit”.

    The Issue

    Simply stated, the central issue before the High Court was whether under UK constitutional law, the Crown (as embodied by the executive) has prerogative power to make a notification pursuant to Article 50. Prerogative powers, also known as the Royal Prerogative, are residual legal powers which are vested in the Sovereign but are exercised primarily by the executive. One of such prerogative powers is the power to engage in international relations, for example, through the conclusion of treaties.

    Arguments

    The crux of the Government’s argument was that the Crown under its prerogative powers could make the Article 50 notification without Parliamentary approval and that this had to have been the intention of Parliament under the European Communities Act of 1972 (ECA 1972). The Government argued that neither the ECA nor any other primary legislation has removed the Crown’s prerogative power to withdraw from the Treaty on European Union (Lisbon Treaty) or any other treaties. The Secretary of State, David Davis, also argued that Parliament would have its say on the withdrawal agreement in any case.

    However, not everyone was happy with Mrs. May’s stated intention to by-pass Parliament and effectively take away legal rights accruing to the  British people under the EU treaties. A legal challenge against the Government’s policy position was led by investment fund manager, Mrs Gina Miller, and supported by London-based Spanish hairdresser, Deir Dos Santos, and other interested parties. They referred to the fundamental principle in UK constitutional law that rights under the law of the UK cannot be varied by the Crown in exercise of its prerogative powers unless Parliament has expressly or impliedly given the Crown this right. They, therefore, argued that Parliament has not given such authority (whether expressly or impliedly) in neither the ECA 1972 nor in any subsequent Acts.

    The Judgment

    The 30-plus page judgment was delivered by Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales. The court relied primarily on law from England and Wales but also from other Scottish and Welsh law. Referring to the common ground between the claimants, the court noted that they both acknowledged that a UK withdrawal from the EU would change domestic law in each of the UK’s jurisdictions and that once notice pursuant to Article 50 is given, it is irreversible.

    Going back to first principles and with reference to decided cases, the Court delineated several fundamental and long settled tenets of UK constitutional law. Importantly, they reiterated that sovereignty of the UK parliament was a cornerstone of UK constitutional law. The Court noted that while the ECA 1972 was an exception to the supremacy of primary legislation (Acts of Parliament), it is Parliament which made this decision and only Parliament has the power to repeal this Act if it so chooses.

    Additionally, the Court went on to reiterate that primary legislation cannot be displaced by the Crown in the exercise of prerogative powers. In other words, the Crown cannot change domestic law by exercising its prerogative powers, nor can it confer or deprive individuals of rights without Parliamentary action. Recall that the ECA 1972 gives effect to EU law in domestic law, including rights.

    In summary, the two main reasons presented by the Court for its ruling were that:

    (1) there is nothing in the text of the ECA 1972 to support that the Crown can exercise prerogative powers in such matters. Indeed, the Court methodically laid out several instances in which Parliament intended that EU law be introduced into domestic law in such a way that it could not be undone by the Crown in the exercise of its prerogative powers,

    (2) it is contrary to the constitutional principles of parliamentary sovereignty and of the inability of the Crown to change domestic law through the exercise of prerogative powers

    In summary, the Court ruled in favour of the claimants and held that the Crown had no prerogative power to give notice of withdrawal under Article 50.

    Reactions to the Ruling

    As one would expect, the ruling has brought mixed reactions. For Brexiteers and for Mrs May, the disappointment was palpable. They have viewed this defeat as undermining the will of the people. For their part, EU envoys do not appear to welcome the delay either.

    For the Pro-EU supporters, the ruling is a small victory. After all, it is one more hurdle in the road towards Article 50. Ms. Miller in her speech after the ruling reiterated that the case was about “process and not politics” and urged the Government not to appeal the ruling. First Minister of Scotland, Nicola Sturgeon welcomed the ruling which she termed “hugely significant”, according to media reports.

    What does this ruling mean?

    So what do we know? Firstly, we know from the ruling that the Crown has no prerogative power to trigger Article 50 and that parliamentary approval is needed. But what form of approval should this take? Should there be just a yes or no vote or should there be a fuller debate on the scope of the negotiations as some are suggesting?   The ruling also appears to confirm that the referendum was merely advisory and not mandatory.

    Does this ruling stop Brexit? No. The Court went to great pains to explain that what it was being called upon to decide  was a question of law and not the merits or demerits of a UK withdrawal from the EU. The court has not, nor was it its role to, decide on the political issue of whether there should be a Brexit.

    But lest, we think this ruling has settled the matter of who is responsible for triggering Article 50, it should be noted that the Government has been granted leave to appeal to the UK Supreme Court which will hear the matter in December. The Supreme Court’s ruling is final. Therefore, it could either uphold the ruling of the lower court or it could overturn the lower court’s ruling and hold in favour of the Government.

    Assuming that the Supreme Court upholds the High Court’s ruling and the question goes to Parliament for a vote, there are two possible scenarios. If the members of Parliament and the Peers decide to support the wishes of the British electorate and support making the notification, then the Government is free to make its Article 50 notification. However, if the Parliament votes against the triggering of Article 50, then the situation is less clear. My own view is that if the referendum is merely advisory, then would not Parliament have the final say? It will be interesting to see what happens in such a case. But will it be a simple yes or no vote or will Parliament seek to delineate the parameters under which the negotiations take place?

    Here is another thing. It puts a spanner in the works of the quick Brexit Mrs. May was envisioning and the feasibility of the posited March 2017 deadline. There is no telling how long it will take for the question to be laid before parliament and for both houses of Parliament to debate and vote on the issue. What is certain though is that there will be more uncertainty. Some have speculated that Mrs. May may be forced to call an early general election.

    But there is one bit of good news! On the back of this news, the value of UK Pound Sterling rose to GBP to 1.25 USD, still low but higher than the slump it has endured for the past few weeks when it appeared the Government was going for a “hard” Brexit. The rationale is that Parliamentary involvement would lead to a “soft” Brexit (where the UK remains in the single market and accepts the free movement of persons) as opposed to a “hard” Brexit which Mrs. May appeared to be supporting by her statements on immigration.

    Suffice it to say, we have a long way to go before this issue of triggering Article 50 is resolved. And that is just the beginning of the Brexit process! It will be interesting to see whether the UK Government will rely on the same arguments it made in this case or whether it will change its pleadings when it makes its submissions before the Supreme Court in December. Interesting times are ahead!

    The full judgment may be accessed here.

    Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

  • Brexit requires Parliamentary Approval, UK Court rules

    Brexit requires Parliamentary Approval, UK Court rules

    Alicia Nicholls

    In its judgement rendered this morning, the UK High Court has held that Parliament must vote before the UK can begin the process of leaving the European Union by giving notice pursuant to Article 50 of the Lisbon Treaty.

    In summary, the court did not accept the argument by the Government that its prerogative powers included the ability to make such a notification without parliamentary approval. The question of whether the Article 50 notification should be made, therefore, must be submitted to Parliament for a vote.

    This is not the end of this story of course. The Government has signalled its intention to appeal the ruling.

    A longer analysis of the ruling and its implications can be read here.

    Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

  • Pound Sterling slips to 3 year low: What implications for Caribbean Countries?

    Pound Sterling slips to 3 year low: What implications for Caribbean Countries?

    Alicia Nicholls

    Two main statements enunciated by UK policy makers in the past few days have sent Sterling plunging to a three-year low. The first was Prime Minister Theresa May’s revelation after weeks of speculation that Brexit negotiations will begin in early March 2017. The second is statements by UK Trade Secretary Liam Fox which many have interpreted to show a preference for a “hard brexit”, that is, leaving the EU single market altogether and trading with the EU under WTO  rules.

    Investors were not too happy with these developments. According to CNBC, the pound dropped to a low of 1 GBP to 1.2818 USD on Monday, almost as low as the 31-year low set in the days following the Brexit result of June 23rd. In the weeks following its Brexit low, the pound had regained some ground and appeared to stabilise somewhat around 1 GBP to 1.32 USD. The chart below from MoneyAM shows the 6-month performance of the GBP/USD.

    gbptousd
    Source: MoneyAM.com

    So what does this new slump in the pound mean for UK-Caribbean trade? The majority of Commonwealth Caribbean countries have fixed currencies which are pegged to the US dollar. The Barbados dollar, for instance, has been pegged BBD$2 to US$1 since 1975. The Eastern Caribbean dollar is pegged at 1 USD to EC $2.70. This means that any depreciation of sterling against the US dollar also strengthens US-pegged Caribbean currencies against sterling.

    The positives

    There are both positives and negatives to this development. Let us start with the positives. As I had indicated in an earlier article, this latest drop makes British goods and services cheaper  for Caribbean importers and consumers of UK products. Some of the major beneficiaries of this are students studying in the UK or doing online courses at UK educational institutions who would find their tuition is cheaper. For Caribbean persons who have been longing for that UK trip, now is the time to book your ticket!

    Another upside is that a lower pound increases the competitiveness of UK exports which, ceteris paribus, bodes well for the UK economy, and by extension, those Caribbean countries like Barbados for which the UK is the main source market for tourist arrivals and a  major source of foreign direct investment.

    The Negatives

    The severity of the impact will depend on the level of risk exposure Caribbean economies have to the UK economy and by extension to the fluctuation of sterling. There are several channels through which Caribbean countries can be affected economically.

    Caribbean merchandise and services exports will be more expensive for UK buyers and importers. Although the US and in recent years China have replaced the UK as the top trade partners for many Caribbean countries, the UK is Commonwealth Caribbean countries’ top market in Europe.  One way for Caribbean exporters to the UK to mitigate this might be to quote their UK buyers in pounds to eliminate currency risk for the buyer. The Brexit-related uncertainty could also dampen UK foreign direct investment in the region as investors adopt a “wait and see” approach.

    In Barbados, British tourists comprise nearly 40% of tourist arrivals and are a major source of visitor expenditure. As this report by Deutsche Welle suggests, it is likely that Britons may choose to spend their vacations closer to home to cut down on costs. Those who do travel to the Caribbean may cut back their length of stay and/or expenditure. Recent media reports in Barbados seem to indicate that British tourists to the island are spending less.

    Remittance data is quite limited. However, for countries like Jamaica and Barbados with sizable diasporas in the UK, it is not surprising that the UK is one of their major sources of remittances inflows. According to data published by the World Bank’s Bilateral Remittance Matrix, of the US$108 million in recorded remittances Barbados received in 2015, US$21 million (or a roughly a quarter) were from the UK, making the former Mother Country the island’s second largest source of remittances after the US. In Jamaica, which has a higher dependence on remittances than Barbados, $US 292 million out of the total of $2338 million that island received were from the UK. Unlike foreign direct investment, remittances tend to be counter-cyclical. However, it will now be more expensive for Caribbean-UK residents to repatriate remittances and the spending power of the money they send will be less.

    The bottom line

    Despite what appeared to be “buyers’ remorse” on the part of the British public in the days and weeks following the Brexit vote, Prime Minister May has indicated that “Brexit means Brexit”. Her unequivocal announcement  of a firm timeline for the UK’s Article 50 notification shows that there will be no reneging on the will of the British people who voted 52 to 48% to leave.

    Although several international agencies, including the International Monetary Fund (IMF) in its latest Economic Outlook, have downgraded their growth forecasts for the UK economy, the latest post-Brexit vote economic data released by the Office of National Statistics (ONS) has shown no major negative impact on the UK economy thus far. However, with fears of a hard Brexit spooking investors, my hunch is that we have not seen the last of sterling’s roller coaster ride which may intensify as trigger day draws near. Caribbean economies need to brace themselves for the continued volatility come what may.

     Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

     

  • Turning the Brexit lemon into lemonade for Caribbean countries

    Alicia Nicholls

    In a non-binding referendum on June 23, 2016 the British public by a 52 to 48% margin voted for the United Kingdom (UK) to withdraw from the European Union (EU). Although the UK has not yet triggered Article 50 of the Treaty of European Union (Treaty of Lisbon), there is understandable concern among Caribbean countries about what implications the UK’s possible exit from the EU (Brexit) will have for their relationships with both the UK and EU. While I believe and have written elsewhere that Brexit will pose challenges to the small island developing states of the Caribbean, we need to think strategically and carefully about how we will turn this Brexit lemon into lemonade for our relations with both trading partners. 

    The countries of the Commonwealth Caribbean and the UK have a longstanding relationship. Barbados, for example, was under continuous British rule from 1627 until gaining its independence in 1966 and retains strong diplomatic, historical and cultural bonds which will not necessarily change due to Brexit. Commercial bonds exist as well. The UK accounts for almost 40% of Barbados tourist arrivals and is our largest export market in Europe. According to data retrieved from ITC Trade Map, Barbados exported US $13,879,000 worth of goods to the UK in 2015 but imported US$68,198,000 from that country in the same year, reflecting a merchandise trade deficit in the UK’s favour of US$54,319,000.

    Trade 
    One of the early impacts of Brexit is the depreciation of Sterling against the world’s major currencies, including the US dollar to which most Commonwealth Caribbean countries’ currencies are pegged. At the time of writing, the exchange rate is 1 GBP to $1.31 USD. Weaker Sterling would make UK goods and services cheaper for Caribbean importers. The increase in the importation of British goods would likely widen Caribbean countries’ trade deficits with the UK. However, it will also provide cost savings for local businesses which import frequently from that country and for Caribbean consumers of UK services (e.g: education, travel) in all four modes of services supply.

    Although Caribbean goods and services exports will be more expensive and less competitive to UK importers, one way our exporters could possibly mitigate this is by quoting their British buyers in British pounds. This would eliminate the currency risk for the British importer. The Caribbean exporter could build a small buffer into their pricing to mitigate some of the currency risk on their own end. We also need to use this opportunity to expand beyond the traditional exports to the UK by developing new and underdeveloped services exports such as in the cultural industries, consultancy services, medical tourism and the like.

    Once the UK has concluded its withdrawal from the EU it will cease to be a party to any EU trade treaties, including the CARIFORUM-EC Economic Partnership Agreement. The EPA, which was signed in 2008, provides CARIFORUM countries (CARICOM plus the Dominican Republic) with duty-free, quota-free access to the EU market on the basis of asymmetrical reciprocity – reciprocity which takes into account differences in size between the EU and CARIFORUM. A major value added of the EPA, besides its development component, is the market access concessions it provides for CARIFORUM service providers, particularly under Mode 4 (presence of natural persons), the most restricted mode of services supply.

    Until a withdrawal agreement with the EU has been finalised, the UK will continue to be bound by its obligations under the EPA. However, to safeguard their trade interests within the post-Brexit UK market, Commonwealth Caribbean territories , as part of CARICOM or CARIFORUM, should be proactive not only in monitoring the negotiations between the UK and the EU but also in lobbying for the negotiation of a new trade arrangement with the UK post-Brexit. Australia has already indicated its interest in negotiating a post-Brexit trade agreement with the UK. Although it is conceded that the Caribbean will unlikely be among those priority countries/regions with which the UK seeks to secure new trade deals, other interim arrangements could be found.

    Investment
    Caribbean countries’ existing double taxation agreements (DTAs) and bilateral investment treaties (BITs) with the UK also provide further opportunities to enhance investment promotion efforts in the UK, particularly targeting those UK companies which may be seeking to re-domicile post-Brexit. Commonwealth Caribbean territories like Barbados have many factors which would make it attractive to British companies as a domicile of choice for international business, including a common language (English), the common law legal system, political stability, a well-educated labour force and excellent professional services firms. Caribbean countries should continue to not only promote their attractiveness as a domicile of choice but continue to make reforms which will improve the ease of doing business.

    There is also the opportunity for the private sector to forge closer links with businesses and private sector organisations in the UK and seek out new business opportunities. In this vein, the Caribbean diaspora living in the UK, while an important source of remittance inflows, is a still largely undertapped resource as an export market and source of foreign direct investment.
    Most Commonwealth Caribbean territories do not have traditionally close relationships with most other EU countries. This is the opportunity to expand our level of trade and investment flows with continental Europe under the EPA, as well as continue to widen our DTA and BIT network with these countries. The consensus so far is that nearly 10 years after the signing of the EPA, most CARIFORUM countries have not realised the benefits expected. Simply put, market access does not guarantee market penetration. Sound market research will be needed to identify specific niches within the EU market which Caribbean goods and services providers could tap into. Business support organisations will continue to play an important role in assisting Caribbean exporters in their preparedness to enter the EU market.
    By no means is this article meant to negate or downplay the serious implications that Brexit could have for the Commonwealth Caribbean countries nor does it aim to present an exhaustive list of the opportunities available. What it does argue is that although Brexit does pose challenges for the Caribbean region, we should use it as a catalyst and impetus not only strengthen the already strong bonds we have with the UK, but to expand and deepen our trade and diplomatic engagement with the remaining 27 EU countries with which we are yoked via the EPA.

    Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.