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