O n 23 June 2016, the UK’s registered electors voted to leave the EU after more than 40 years’ membership. From a legal standpoint, Brexit will have ramifications which will be felt over many years to come. For present purposes, the focus is on the more immediate: how the UK will secure its own departure from the EU. (See also page 18 of this issue)
The European Union Referendum Act (EURA) 2015 provided the necessary legal authority for the vote held in June. Nowhere in the EURA, however, was there a provision which declared the outcome of the referendum to be legally binding on the UK government. In theory, therefore, when David Cameron, the then prime minister, addressed the nation from outside No 10 Downing Street on the morning after the vote, he could have informed us that he had taken note of the decision but that he was not minded to act on it: that he regarded the result as merely advisory. As we know, David Cameron did not act thus; instead, as he had done previously when MPs voted not to sanction military action in Syria, he accepted an outcome produced by the operation of the democratic process, but in the case of the referendum contended that putting it into effect would be a matter for his successor, who we now know is Theresa May.
The focus [now] is on … how the UK will secure its own departure from the EU
The right to withdraw from the EU has not always been a feature of the treaties and, as a result, it was formerly a matter of conjecture and debate as to whether it could be done and, if so, how. Since 2009, legal certainty now exists in the form of article 50 of the TEU, which recognises that ‘any member state may decide to withdraw from the Union in accordance with its own constitutional requirements’ (article 50(1)) . Differences of opinion have emerged, however, about what the UK’s ‘constitutional requirements’ are in the present context.
Two main strands of thought exist among constitutional experts. One view is that before an article 50 declaration can be made, parliament will first need to enact a statute empowering the prime minister to do so.1 1 This is because the effect of the declaration will be to render ‘nugatory’ the European Communities Act 1972, and if this is to happen, it is a matter for parliament through legislation rather than for the government under the royal prerogative. In support of this argument, authorities such as the Case of Proclamations (1611) 12 Co Rep 74, Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 and R v Secretary of State for the Home Department ex p Fire Brigades Union and others [1995] 2 AC 513 have been cited in confirmation of the principles that: in the event of conflict between statute and prerogative, it is statute which prevails; and the prerogative ought not to be used to frustrate the will of parliament.
The main alternative view, and in the present author’s opinion the better view, is that the authority to communicate the decision is derived from the prerogative, given that the conduct of various aspects of foreign policy, such as the power to enter into treaties, comes from the common law.2 2 On this analysis, and on the authority of Council of Civil Service Unions and others v Minister for the Civil Service [1985] AC 374, the decision to trigger article 50 would be a political rather than a legal matter, and hence beyond the reach of judicial review. While it remains to be seen which approach will be adopted by Theresa May, it is clear that both views agree that the referendum itself is not a ‘decision’ for the purposes of triggering article 50: something more is required. If a bill was considered to be constitutionally necessary, it is a moot point how MPs would vote on it especially those who voted ‘remain’ in the referendum itself. Since the defeat of such a bill would induce a state of political limbo regarding the UK’s EU membership, it seems more likely that the new prime minister will make the case for proceeding under the authority of the prerogative so that the formal involvement of parliament need not be sought.
Not surprisingly, EU leaders wish to expedite matters. Thus, in a joint communication, the heads of the EU’s three main political institutions, ie, the commission, the council and the parliament, called on the UK not to delay the commencement of negotiations. Also, of course, the national leaders of some of the EU states are concerned by the prospect of a drawn-out process which might further fan the flames of Euro-scepticism in their own countries. Accordingly, when the foreign ministers of the six original members of the EEC (France, Germany, Italy, Belgium, the Netherlands and Luxembourg) met on 25 June, they were agreed that negotiations with the UK ought to begin immediately.
Legally, an intention to withdraw from the EU has to be formally notified to the European Council under article 50(2). The timing of the notification is practically important because it starts the clock ticking on the withdrawal negotiations. Under article 50(3), there is a maximum two-year period within which those negotiations may take place. Thus, the EU treaties cease to apply to a withdrawing state either on the date that an agreement enters into force, or on the second anniversary of the notification to the European Council. While it is possible for the time period to be extended by unanimous agreement of the European Council, it seems unlikely that this will happen in relation to the UK. Voices in Europe are likely to continue to demand that an agreement is reached as soon as practicably possible.
The negotiation and conclusion of an agreement setting out the arrangements for the UK’s withdrawal will take place in the light of guidelines provided by the Council of Europe, and in keeping with article 218(3) of the Treaty on the Functioning of the European Union (TFEU). Presumably, the council will already be working on the guidelines. In view of the unprecedented nature of the UK’s withdrawal, there is no template to adapt to the particular circumstances. In carrying out the task, the council will not have any input from a UK member since this is precluded by article 50(4).
The detail of the agreement will be thrashed out between the EU’s and the UK’s negotiating teams. It may well be some time before we know the identity of the respective teams, especially if the UK is able to hold firm on its intention not to trigger the process until the autumn. Also, of course, the negotiations themselves are likely to be complex and protracted. A key feature of them will be the UK’s future relationship with the EU, in particular, trade links.
At a more general level, the phasing out of EU programmes will also need to be addressed, as will the cessation of the application of EU law in the UK. Once a draft withdrawal agreement has been reached between the negotiating teams, article 50(2) requires that it be consented to by the European Parliament. British politicians may consider that the draft agreement also ought to be put before the UK parliament. For the agreement to be concluded, it will need to be supported by the council acting on a qualified majority as defined by article 238(3)( b) of the TFEU. Thus, at least 72% of the members of the council, comprising at least 65% of the population of the member states, will need to vote in favour of the agreement.
The text of article 50 sets out a procedure which is less straightforward than it seems. Assuming that the issue of the UK government’s legal basis for issuing an article 50 declaration is resolved (either in the absence of or following litigation) and negotiations begin, the UK’s position will be complicated by the fact that the vote in Scotland and in Northern Ireland was in favour of ‘remain’ . Thus, while the UK as a whole is now contemplating its future outside the EU, Scotland is at the very least seriously considering, once again, a future outside the UK but inside the EU.
From a legal standpoint, the effect of withdrawal on our laws will be significant, but not necessarily immediate. During the referendum campaign, widely different estimates were voiced about the proportion of UK laws which are traceable to the EU. In the calm light of day, these laws will need to be identified and decisions made about whether they are amended or repealed. Of course, these decisions will be much influenced by the withdrawal agreement itself, since the UK’s future outside the EU may still involve the need to comply with some European laws and principles. Thus, it is doubtful, for example, that the UK will be able to be in the single market without accepting the free movement of workers.
1 See, for example, Nick Barber, Tom Hickman and Jeff King, ‘Pulling the article 50 ‘trigger’ : parliament’s indispensable role’ , UK Constitutional Law Association Blog, 27 June 2016, available here
2 Mark Elliott, ‘Brexit: on why, as a matter of law, triggering article 50 does not require parliament to legislate’ , Public Law for Everyone Blog, 30 June 2016, available here