Not coming to the UK anytime soon: Brexit

Lawyers are set to be busy working out how the UK’s departure from the EU will happen — if, that is, it ever does

brexit

Is Brexit legally binding?

Last Friday’s decision to leave the European Union dumbfounded a huge number of people, with social media lighting up with despair especially among people aged 18-24 — 75% of whom voted to remain. But whatever your age, if you wanted the UK to remain all may not be lost.

First up, this is an advisory referendum, not a mandatory one. This means that whatever its result, it would have to go to the House of Commons.

Contrast the Alternative Vote referendum of 2011, on whether to stick with the First Past the Post electoral system. The government was legally obliged to act on the result of this vote.

Zero legal impact

Last week’s referendum is different. It has zero legal impact. We’re all still part of the EU, and will be for some time yet.

For the referendum result to have any effect the government has to invoke article 50 of the Lisbon Treaty. David Cameron has resigned, and Jean-Claude Juncker, the president of the European Commission, wants the UK to hurry up and activate article 50. “Out is out,” he says. But will Cameron be inclined to press the article 50 red button? Why would he? He passionately believed we should stay in Europe. Moreover, he says invoking article 50 will be a matter for his successor.

Be it Boris Johnson, Michael Gove or Theresa May, or another candidate, that person and his/her legal team has a lot of legal analysis ahead. Here’s one thing they know:
If and when article 50 is invoked, there is a two year period before the UK leaves the EU. Fine.

Constitutional conundrum

Here’s what is up for grabs.

How will article 50 be invoked?

Article 50’s first sub-section says:

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

What, though, are the UK’s ‘constitutional requirements’ on this point? Nothing exists by way of precedent or formula for Brexit. There is no express mechanism for the activation of article 50. But albeit that silence engulfs the implementation of article 50, the fact is that it would have to go to the Commons for a vote.

The brick wall known as parliament

And then what? If The Times is correct, only about 160 of the 650 MPs elected last year are in favour of Brexit. What happens, then, when Johnson, or Gove, or whoever it is, asks the Commons — that collection of democratically-elected individuals in whom we place our trust — to ratify the activation of article 50, as has to happen?

Was it negligent to hold a referendum without having thought through and agreed the article 50 mechanism? Of course not, given that this was an advisory rather than mandatory referendum.

But surely it would be negligent to act upon it — to give it de facto mandatory status — when the consequence would be to trigger the most extraordinary parliamentary meltdown the UK has ever seen, one which would make a mockery of the very democracy we trumpet as the finest in the world? For how can an overwhelming majority of pro-EU MPs vote in favour of something they don’t believe in?

Legal wheels often turn slowly. In this instance, the stakes are so high that it’s possible they’ll grind along for a bit and then come to a complete standstill — before the vehicle to which they’re harnessed is back where it was in the first place.

Alex Wade is a media lawyer and writer. For more information see www.alexwade.com and www.flackslastshift.com.

45 Comments

Not Amused

Yes, let’s all just ignore democracy. That’s a brilliant plan.

Remainers need to calm down and get with the programme – but it will, naturally, take a little while.

If we were to start up a betting book on whether or not Brexit will be completed before the complete collapse of the Euro and hence the EU – that might at least pass the time.

(17)(74)
Anonymous

Substitute Euro for Pound, it won’t take until October to fuck the City – we need to make a decision, one way or the other, right now.

(1)(1)
Anonymous

by ‘ignore democracy’ do you mean ignore the people that we democratically elect to represent us and make big political and economical decisions for us?

(50)(5)
Anonymous

Fool! Gov let the people who elect government decide and they have. Deal with it and stop crying like a weak bitch. If the other way around your tune would be different. Spineless twat.

(3)(8)
Anonymous

In many countries referendums are limited to certain areas/issues, FOR A GOOD REASON.

(32)(1)
Anonymous

It’s like the passengers of a ship voting to remove the paddles, then expecting the captain to let them float up sh*t creek. Just because it was voted in on a range if dodgy and invalid reasons doesn’t mean it should be honoured. And frankly it suggests loads about leave voters when it’s evident the impact it’s having, but no, we should always honour it.

Conveniently forgot it was actually a leave supporter who started the petition for second referendum when they didn’t think they were going to win.

Farrage also on record saying it shouldn’t count if less than 52-48% but again, now it suits it never happened. Just like the £350 million was never promised and leave won “with no shots fired” in his moronic words. Was that not ignoring democracy?

Don’t worry tho the footy’s on later so we can move back onto the important stuff.

(30)(3)
Anonymous

Quite frankly, you should need more than 37% of eligible voters to voluntarily trigger a second recession.

Moron.

(7)(0)
LegalRec

Democracy….you mean when a full country votes to remain but is over-ruled by its English leader? That is democratic isn’t it?

(2)(0)
Anonymous

What? Why does an Art 50 activation have to be endorsed by parliament? Isn’t that a matter for the government?

Have I completely misunderstood something?

(9)(2)
Gladiatrix

Yes, it’s stated in Article 50. A departing country has to have completed its constitutional requirements. If you look at the most recent post on the Jack of Kent blog the options that might meet that criterion in the UK have been set out by David Allen Green.

(5)(1)
Anonymous

Yes, I think you’ve completely misunderstood how politics in the UK works…

(1)(4)
mart

Why does the decision to give notice under Art. 50 rest with the Commons? The Government could give notice to the EU just as well.

(5)(2)
Anonymous

Assumedly we’d be repealing the ECA, that would require a bill.

(2)(0)
Anonymous

The ECA 1972 would need to be repealed, but this would not take place until the UK has, as a matter of international law, withdrawn from the EU legal order. This withdrawal is effected by triggering Article 50 which, as has been pointed out elsewhere in these comments, is a matter for Government, not Parliament.

(9)(0)
mart

Surely that would only be relevant once we have our divorce settlement agreed and actually want to leave. This is just giving notice of intention to leave, which is a political decision not a legal one.

(1)(0)
Anonymous

Art. 50 states we can only give notice in accordance with our most fundamental constitutional requirements. That being, a decision by parliament.

(3)(1)
Anonymous

Article 50 states that a “Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. That does not mean that a vote needs to be put before Parliament.

If you don’t believe me – please watch as no vote in Parliament is forthcoming.

(3)(0)
Anonymous

Fair enough, but it gives us the option. Given the current split in the commons, which do you think we’d take?

(1)(0)
Anonymous

I think the point is that notice under Article 50 is the responsibility of the Government (see comment below). It simply isn’t a question for Parliament.

(1)(0)
Anonymous

“First up, this is an advisory referendum, not a mandatory one. This means that whatever its result, it would have to go to the House of Commons.”

“…the fact is that it would have to go to the Commons for a vote.”

Well that’s not right, is it?

Article 50 will be triggered by the Government exercising its prerogative powers to conduct foreign policy. As such, there is no requirement for a vote to be put to the House in order for the UK’s departure from the EU to begin.

(10)(1)
Anonymous

Yeah parrot the media like the idiot you are! How friggin original!

(0)(1)
Anonymous

Sorry man! just read the first 2 paragraphs and now realised that you were quoting the idiots! I retract the above comment!

(0)(0)
Just Anonymous

The results of the referendum cannot be ignored. The country voted to leave. The country is going to leave. The precise details of how this will happen are unclear, but the democratically expressed will of the people cannot be ignored.

I don’t say this with any particular pleasure or enthusiasm. As I said elsewhere, I voted to remain. However, if I expect my wishes to honoured when I am on the winning side, I necessarily must respect the winning side myself when I do not fall within it.

That is the essence of democracy.

(12)(4)
Anonymous

Well technically it can be ignored.

Most of the electorate would probably vote for lower taxes on beer or for lower petrol prices if they had the chance. Should those decisions be respected because they’re democratic? Not necessarily because they have far reaching economic implications.

So no, the result cannot be ignored. But it also doesn’t have to influence or trigger any change either.

(6)(5)
Just Anonymous

Now you’re just being silly.

Have we had a referendum for beer taxes? No.

Have we had a referendum for petrol prices? No.

These things are, quite correctly, matters for our democratically elected representatives.

Major constitutional issues, however, are a matter for the electorate through referendums. EU membership is a constitutional issue. We have had such a referendum. It’s result is politically binding (if not legally binding) and cannot be ignored.

(10)(3)
Anonymous

51.7% of 72% voted to leave… 37% of eligible voters. Hardly an overwhelming mandate is it?

Also, consider:

Denmark’s vote on the Maastricht Treaty 1992 – 51.7% – made to vote again.
Ireland’s vote on the Nice Treaty 2001 – 53.9% – made to vote again.
France’s vote on EU Constitution 2005 – 54.9% – ignored.
Ireland’s vote on the Lisbon Treaty 2008 – 53.2% – made to vote again.

(7)(2)
Just Anonymous

Frankly, I think the indignation of making us vote again would be the number one guaranteed way to ensure a bigger Brexit vote…

(6)(0)
Anonymous

Really? So the country falling apart politically and economically won’t convince anyone to change their mind? If that’s true, then we really should abandon all hope.

(2)(2)
Democrazy

Haha. You really think such a big decision is up to the people. Lets have a referendum on whether to pay tax or not. I can predict the result…100%in favour of not paying tax. But would this be implemented? Nooooooooooo, wait, nooooooooo. The same is here.

(1)(1)
Anonymous

You forgot to mention that only 36% of 18-24 year olds actually voted. If you don’t vote you have no right to moan about the outcome.

(8)(1)
Anonymous

75% of 36% of 18-24s voted in the referendum …..

That is utterly disgraceful.
We need to implement the heavy fine penalty system they have in Australia if someone fails to vote. I truly believe if 85% of the whole population, not just the 18-24’s voted, remain would have won with noticeable daylight.

I actually find this really, really concerning. Today we are no longer in the EU. If we continue this trend of poor voting in the future who knows what the UK will look like in 50 years time.
Particularly if the Tories continue to churn out Gove’s and Boris Johnsons from their production line.

*shudders*

(2)(2)
Sex Panther by Boh Dear

60% of the time we should hold a second referendum every time.

Boris did mention a second referendum himself waaaaaaay before 23 June. Ho hum.

(5)(0)
Duggan

The right to vote is not a right at all if you are forced to do it. That would be an obligation, not a right.

(0)(0)
Anonymous

Invoking article 50 is a royal perogative (it having been aforded to the memeber state). It is in the hands of the executive alone. There has been a direct mandate from the people to exercise the perogative. This really is a non point.

(4)(0)
Not Amused

While I agree with you, I think there is a point in all of the current wriggling.

I think that point is highlighting just how anti-democratic Remain campaigners actually are. They fought a disgraceful campaign. I was pro leave. Many fellow members of the Bar were pro-leave. I have numerous solicitors who are pro-leave. Yet every day we were told that the if you supported leave you were an idiot and a racist.

Now the country has shown remarkable courage in the face of really vicious bullying (including a punishment budget threat which no decent chancellor could ever have made). But the nonsense does not stop.

Some advocate a parliamentary block. Some petition (the irony) for a new referendum. All preach doom and gloom for the markets and now the accusation that leavers are racists rears it’s ugly head yet again.

If I had lost the argument I would not have behaved this way. I am judging the remainers by how they behave and, the PM aside, they seem to be behaving in an entirely spoilt and entitled way.

(5)(6)
Just Anonymous

I agree with you that, for the reasons you give, Remain did behave – and is continuing to behave – disgracefully. I also agree that there are valid concerns over immigration and it is not racist to acknowledge them.

However, let’s not pretend that Leave is a paragon of virtue. They spread blatant lies and misinformation as well (like the infamous £350 million pledge). Furthermore, it’s blatantly obvious that, had they narrowly lost, Farage would be calling for a second vote, alleging fraud due to the decision to extend the registration deadline.

So let’s not pretend that either side comes out of this smelling of roses. They don’t.

(11)(0)
Anonymous

I wholeheartedly agree – and I will go a step further, it wasn’t misinformation, it was disinformation. The Leave campaign deliberately misinformed the voters with disinformation.

Moreover it is 350 Billion and counting that the BoE had to spend to stem (not stop) the slide of the Pound. It has been said that this figure was spend on the local market, and a figure close to 1 Trillion it had to fork out on the global markets.

Even if you don’t believe the second figure, the 350Billion will have to be repaid/restored. Where will that money come from?

Moody’s have downgraded (virtually immediately) the British economy from stable to negative. Literally 20% of the nation’s collective wealth was lost in a matter of hours.

I get that every nation’s end game is autonomy and sovereignty, but once that is attained, do not bemoan the hardships that will most likely follow for years to come.

(2)(0)
Anonymous

Childish remainers clinging to hope as usual, they are never able to accept defeat it seems. The people have spoken and brexit it what we shall have. Now lets unite and get the best deal for a post EU UK.

(3)(4)
Democrazy

You had the best deal. Now UK, sorry little england will suffer.

(1)(2)
Anonymous

The Queen coul step in to make sure the will of her people is honoured.

(1)(0)
Anonymous

Keep dreaming you pathetic sore loosers. Looking for all manner of ways to wriggle out of the outcome. Democracy is only good if it goes your way is it!

(1)(3)
Ian

Nobody is sensibly saying let’s have a re-run. What I think is being said is that the people voted to leave, but they didn’t set out what ‘leave’ would look like, or when it would happen. There is a mandate to leave. Once we invoke Art 50, we are in a 2 year period after which the treaties are automatically disapplied, regardless of where we are with negotiations, what’s happening to the Euro or the Pound, whether the EU is finally reforming, whether Scotland has had another referendum, whether President Trump has declared war with Mexico…there are so many variables.

We have just had a 400 odd page Law Com report on reform to the Land Registration system, a report on reforms to the Electronic Communications Code, and so on. Somehow, we, and Europe, are supposed to be able to sign, seal and deliver a deal in 2 years?

Surely it should be for Parliament to grip this from the start. It gives each stage legitimacy – gives the profound constitutional issues of Scotland, Northern Ireland and Gibraltar (plus ones to pop out of the woodwork) a voice. Peace in these nations, and across Europe, has been hard-fought. You could have sub committees and so on, listening to the evidence and policy, and coming up with proper policies that work for us. The European Parliament and Commission can have time to do the same for the EU.

I think one huge hot potato is if, when and how to trigger Art 50. In my view, it’s quite sensible to give that to the experts, not to the Cabinet of the government of the day. Article 50 isn’t an expression of our will to leave; it’s a notification that the UK has legally decided to leave and WILL BE LEAVING in 2 years’ time COME WHAT MAY, much like a break notice – once served, it’s irrevocable.

We’ve decided to leave, yes. Indisputable. But how / when we do that is surely for Parliament. I don’t understand how the process could be managed in any other way.

(0)(0)
Anonymous

According to the bill of rights we should not have entered the common market. Lord Kilmuir wrote to Ted Heath to say it was treason. Heath ignored the letter which was I think secret for thirty years. There is a petition requesting parliment to discuss said letter. Apparently no part of our sovereignty could be surrendered as it is held in trust for future generations. So we were taken in without a refurendum, this was done retrospectively by Wilson.

(0)(0)

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