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Brexit – what now, legally and constitutionally?

It has been nearly a month since 52%, of a total of 33,568,184 ballot papers counted in favour of the United Kingdom leaving the European Union. Nobody knows what might happen next but here are 5 points to consider about the legal and constitutional aspects of the Brexit saga.

First, the markets went into freefall, then they recovered, and for the time being they seem to have plateaued but whilst the UK remains a member of the EU it is still bound by the European Union treaties, and the European Communities Act 1972 remains in force. The UK as a State continues to be subject to its obligations under the EU treaties both legally and constitutionally, nothing has changed yet, freedom of movement remains a legal right of UK citizens as citizens of the EU (enjoy it while it lasts.)

Second, how will the UK remove itself from its obligations under the EU treaties? Possibility one: a treaty amendment under Article 48 of the Treaty on European Union, which would require unanimous agreement among Member States and would involve a side stepping of the instrument, contained in Article 50, for extraction from the EU. Possibility two: Article 50: “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” Once the Member State makes the decision to withdraw and gives notice of its intention to leave, the treaties cease to apply to the departing Member State after two years of that notice, subject to two exceptions – exception one: the two-year rule will not apply if the State reaches agreement on the terms of departure before the expiry of the two-year period; exception two: the European Council in the agreement of the departing State, agrees to extend that period beyond two years.

Third, as likely as Brexit is to be accomplished under Article 50, it is even more likely that the UK will remain a Member State of the EU for at least two years from the date on which notice of the UK’s intention to leave is served. This poses the question “when will notice be served?” As a matter of law, notice does not have to be served as the outcome of the referendum is not legally binding. The legislation that provided the referendum does not place the Government under a legal obligation to secure Brexit. The referendum was always advisory, but the will of the people has expressed that they wish to withdraw, yet the making of the decision whether to withdraw remains a matter for the Government.

However, saying that the Government is not legally obliged to trigger Brexit is one thing; the political reality is something else completely. It would be extraordinarily difficult for the Government to ignore the outcome of the referendum, and there is mounting pressure to spin the Article 50 wheel. When Theresa May spins the wheel is one for Mystic Meg and her crystal ball…

Fourth, the question arises whether the general public or the mainstream media become so impatient about Brexit that they turn the pressure up on the government to amend or repeal the European Communities Act. The Act, which contains the principle that EU law takes priority over UK law, might be amended to block new EU laws from taking effect in the UK, doing so, however, would be highly inadvisable. If they were to do this they would risk a legal minefield as the British and EU regimes would be on a collision course prior to the UK having “Brexited” the EU. It is in no-one’s interests for the UK to play a “hail Mary” with its international obligations; at a time of such instability.

Fifth, and most significantly, the question arises whether Brexit represents a threat to a “United” Kingdom. Nicola Sturgeon has said that “the vote makes clear that the people of Scotland see their future as part of the European Union”. Does that mean the people of Scotland not see themselves as part of a United Kingdom? Will there be a second Scottish independence referendum? Will there be a referendum in Northern Ireland? If either people decide they wish to be part of the EU, then surely the answer is a yes?

In the grand scheme of things we are still in very early Brexit times, and events have already moved quickly and unpredictably. The break up of the United Kingdom, just like the UK’s formal departure from the EU, will not happen today or tomorrow or even next week. But just as Brexit is now a certainty, a break up of the UK must now be a distinct possibility. A “broken Britain,” as a result of the Brexit should not be underestimated….

For more information contact Sam Vincent at BCL Legal.

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