Last Thursday, a clear majority of the electorate voted to leave the EU but in the few days since then, it has become apparent that the real consequences of this monumental decision are anything but clear. The Prime Minister’s decision to not trigger the legal mechanism which initiates the formal process to withdraw from the European Union may have created what some considered to be a “constitutional crisis” in all but name.
As core EU member states call on the UK to trigger the hallowed Article 50 as soon as possible to avoid further deterioration of the union itself and as financial markets brace themselves for more uncertainty, some have started to question the validity of the referendum result. Others have gone further and question whether our country’s constitutional settlement and the way the country voted can and will actually allow the result to be seen through to its logical conclusion.
Since the result was declared in the early hours of Friday morning and as the after effects of the vote have become apparent, various political and legal manoeuvres are afoot in an attempt to reverse the results of the vote. A petition currently clocking up signatures on the internet which was started before the referendum calling for a re-run is almost certain to fail because it demands retrospective legislation and that has very rarely happened in the history of parliamentary democracy in the UK. Some MPs have pointed to the fact that the referendum is merely advisory in nature and therefore not binding on Parliament. A parliamentary vote to reverse the referendum, however, is likely to seen as a rebuff of the will of the people and is unlikely to succeed.
How Article 50 works
The legal mechanism which triggers the official secession from the EU is to be found in Article 50 of the Treaty of the European Union. In short, this rather brief clause allows any member state to withdraw in accordance with its own constitutional requirements and when it decides to do so, it must give notice of its intention. Once that notice is given, the process requires the EU and the UK, in this case, to negotiate and conclude an agreement which sets out arrangements for the UK’s withdrawal. The agreement must also look to the future relationship between the UK and EU, but if the parties fail to agree the terms of withdrawal, Article 50 provides that the various EU treaties shall cease to apply two years from the date of the notice. That could mean that the UK finds itself severed from the EU rather hastily or possibly, at the mercy of the remaining member states.
Only a unanimous vote of the remaining members can extend the all-important two year notice period and that is something the UK may very well need given the mammoth task it faces in trying to negotiate favourable terms for itself while seeking concurrently to negotiate new terms with the Word Trade Organisation (WTO) and new trade deals with other non-EU countries. Some argue that such trade deals may only take a matter of two years or so to agree, but others point out that any period of uncertainty is likely to have an unwelcome and deleterious impact on the UK’s economy, still recovering from the global financial crisis of 2008/09. It remains to be seen whether the UK is able to achieve anything like the same level of access to the single market it previously enjoyed. The chances of that seem slim.
It is therefore, not surprising that the UK is in no rush to trigger Article 50 before it comes to some sort of understanding with the EU as to what might be agreeable and that will not be possible before the Government elects a new prime minister. Other potential political delays could impact the negotiation process. The new prime minister may want to, or may have to, call a snap election in order to secure a legitimate mandate for what is arguably the most important political decision since Britain’s decision to enter the Second World War. Political wrangling with the Holyrood Parliament may delay matters yet further.
The Constitutional Issue
Constitutional experts are looking at the referendum decision in a very different way and they argue that even though the result of the country taken as a whole has produced a decision to leave the EU, one cannot ignore the fact that Northern Ireland and Scotland, two out of the four nations which make up the United Kingdom effectively voted to remain in the EU. This is significant because the devolution of constitutional power to these parts of the UK means that their legislative consent is required before laws can be passed in the UK Parliament on devolved matters and it is not clear yet whether the referendum and its implications has an effect on Scotland’s devolved powers or its legislative competency. Northern Ireland, concerned that the Common Travel Area may be at risk, may take the view that its future lies within the EU.
Scotland’s position
The Scots also appear to be contemplating a second referendum on the basis that their decision to stay in the EU and England and Wales’ decision to leave constitutes a material change to their circumstances. Some constitutional experts are suggesting that the decision to leave the EU needs to be balanced against the very real risk of the UK fragmenting into its constituent parts and since that is not a legitimate result of the referendum, it may not be constitutional. To coin a phrase, often used to quizzical effect by some British MEPs during the referendum campaign, that would be like turkeys for voting for Christmas.
