A note on the post referendum legal and diplomatic situation

June 25, 2016

The EU referendum, by itself, has no legal impact. It was an advisory not mandatory referendum. In a strictly legal sense It would be perfectly legal for the government to ignore it.

All UK law – including that drawn from the EU – remains in place after the referendum as it did before the referendum. Nothing in the result of the referendum affects the applicability or enforceability of any UK or EU law.

The legally significant thing is not the referendum result but any Article 50 notification. There is no indication any UK politician is in any rush to press that “red button”. Once pressed, that will give a two year period before the UK leaves the EU (unless EU Member States unanimously agree otherwise and that would require the UK vote). Any fundamental legal change as a result of the Leave vote will not (and cannot) be until 2018 at the earliest. Until then the UK will remain a full member of the EU and can insist on being included in all proceedings and meetings as normal, with normal voting rights.

An Article 50 notification will mean that there will be immense amount of legal work to be done. Over 40 years of law-making — tens of thousands of legal instruments — will have to be unpicked and either placed on some fresh basis or discarded with thought as to the consequences. The UK government has depended since 1972 — indeed it has over-depended — on it being easy to implement law derived from the EU. The task of repeal and replacement will take years to complete, if it is ever completed. Even if the key legislation — especially the European Communities Act 1972 — is repealed there will have to be holding and saving legislation for at least a political generation.

It is perfectly possible the Article 50 red button is never pressed – for example if there is a “new deal” and a second referendum. There is, after all, a tradition of EU-related referendums being repeated in Member States until there is the “correct” answer.

Once Article 50 is invoked it is a matter for a member state’s “own constitutional requirements” as to how it decides to withdraw. The manner is not prescribed, in the UK, it would seem that some form of parliamentary approval would be required — perhaps a motion or resolution rather than a statute. The position, however, is not clear

What happens next following the vote to leave is therefore a matter of politics not law. It will come down to what is politically expedient and practical. There is a great deal of room to manoeuvre politically.

The resignation of Cameron (with a deadline of around October for selection of a succesor) means that the Tories can have a leadership election at a pace, more or less, of their own choosing. The newly elected leadership and the new prime minister can then open discussions with the EU about moving towards an article 50 signing, and once signed that then begins a process that runs for up to a further two years.

The main aim of the incoming pro-Brexit Tory government may well be to play for time and draw out the whole process. Why? because the ideal outcome for the new government, and indeed for the UK now that it has expressed itself in the referendum, would be if the UK Brexit vote were to trigger a fundamental restructuring of the entire EU project. A restructuring that was profound enough, and of the right sort, such that the UK could continue to be part of it whilst still fulfilling the referendum’s mandate to leave the ‘Union’. Ending free movement (something that would be popular with significant sections of the electorate across Europe), might be enough to trigger a second referendum.

So the Brits will play for time. The EU as a whole but particularly those most politically threatened by contagion from the UK referendum (especially the French) and those whose ‘bloc’ in the Union is likely to be strengthened by the departure of the UK (the French again) will want to speed the UK’s departure and then carry on as if nothing has happened.

The complexities of dealing with a new budget settlement (minus the UK’s take and contribution), a new balance of power in the Council, the loss of the British Commissioners and MEPs, will all be immensely unsettling and potentially divisive so the coherence of what might called the collective leadership of the EU may unravel. How fast and how much it unravels will be a critical factor in shaping events.

Starting with the Spanish elections in a couple of days there are a series of critical elections across Europe during the Article 50 two year process. The French presidential elections are scheduled for April and May 2017 so are well within the likely Article 50 period. The next German election has to be before 22 October 2017, again well within the Article 50 period. The next Italian general election is due to be held no later than 23 May 2018 so will fall at the end of the Article 50 process if that process runs its full course. All these countries have electorates that are seething with discontent, and a lot of that discontent is about exactly the same issues that drove most of the UK’s Labour voters into the Brexit camp. In France the population seems to be even more hostile to the current EU than in the UK. This means that if they wish to manoeuvre, or even just make mischief, the incoming new Tory government has a great deal of room available, the only limiting factor will be their tactical political skills. I get the sense that Boris Johnson has a great deal of political cunning and is a skilful tactical operator. He now has a potentially large stage on which to make his play.

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