Saturday 25 June 2016

It is Brexit (2) ~ A short note on developments since Thursday 23rd June.

A short note on some of the developments since the Referendum on 23rd June.

1. The European Council has issued this statement - Statement by the EU leaders and the Netherlands Presidency on the outcome of the UK referendum.

"We now expect the United Kingdom government to give effect to this decision of the British people as soon as possible, however painful that process may be. Any delay would unnecessarily prolong uncertainty. We have rules to deal with this in an orderly way. Article 50 of the Treaty on European Union sets out the procedure to be followed if a Member State decides to leave the European Union.
We stand ready to launch negotiations swiftly with the United Kingdom regarding the terms and conditions of its withdrawal from the European Union. Until this process of negotiations is over, the United Kingdom remains a member of the European Union, with all the rights and obligations that derive from this.  According to the Treaties which the United Kingdom has ratified, EU law continues to apply to the full to and in the United Kingdom until it is no longer a Member.

As agreed, the “New Settlement for the United Kingdom within the European Union”, reached at the European Council on 18-19 February 2016, will now not take effect and ceases to exist. There will be no renegotiation.

As regards the United Kingdom, we hope to have it as a close partner of the European Union in the future."

2. The UK Parliament has issued a Research Briefing - Brexit: What happens next?

This paper considers various questions about UK withdrawal from the EU and what is likely to happen in the coming weeks and months. The issues include the method of leaving the EU, continuing parliamentary scrutiny of EU business and the withdrawal negotiations, and the implications of Brexit for Scotland and Gibraltar.

Para 4 of the briefing looks at how withdrawal from the EU might be handled legislatively.  I suspect that my forecast of a giant Henry VIII power will come true!

The paper has the look of being produced hurriedly! For instance, there is no discussion of Northern Ireland's position.

The House of Lords has also published a Library Note - XXXXXXXXXXXXXXX

3. There has been some discussion about whether there may be a second referendum.

The 23rd June referendum decision is not legally binding on the government or Parliament and so, at least in law, the referendum result could either be ignored.  Lord Denning MR once remarked that "legal theory does not always march alongside political reality" - Blackburn v Attorney General 1971.  The political reality here is that the referendum cannot be ignored.  To do so could be to risk some serious political repercussions.  A second referendum could take place if Parliament chooses to legislate for it but clearly it would not do so without very good reason.  For example, that may arise if there were to be some new deal with the EU which Parliament considered sufficient to justify the UK retaining full membership.  At the present time I do not see that as likely.

4.  Much attention is being given to Article 50 - discussed in UK and the EU (11) - which noted:

"The Treaty on the Functioning of the EU (TFEU) Article 50  sets out the ground rules for withdrawal.  Art 50(1) - "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

So, what are the constitutional requirements in the UK?  Since this referendum result will not, in domestic law, bind the government or Parliament it would seem that Parliament ought to somehow endorse the result.  Unless that is done there may not actually be a "Decision" for the purposes of Article 50.

The formal process set out in Article 50 does not begin until the British government gives notice to the European Council.  The notice would trigger everything including the 2 year (possibly extendable) timescale as set out in the Article - see Art 50(3).  Precisely what constitutes "notice to the European Council" seems not to be specified but it probably requires a formal communique of some sort from the British government to the European Council President."

Any formal communique would have to make it crystal clear that the UK had reached a "decision" in accordance with UK constitutional requirements and that the UK was giving clear notice that it intended to leave the European Union and wished the Article 50 process to commence. 

5.  The possible implications for Scotland and Northern Ireland - both of which favoured Remain - are being discussed.  (Similarly for Gibraltar).  Momentous constitutional issues are now involved.  It was always likely that Scotland and Northern Ireland would vote Remain but the potential for destabilising the whole UK appeared to gain little traction during the campaign among most voters elsewhere.

Statement of Scotland's First Minister

Earlier this year, Northern Ireland had difficulties forming a new Executive. Unsurprisingly, the possibility of Northern Ireland uniting with the Republic of Ireland has been raised.

The situation is fast-moving.  This blog will seek to keep as abreast of developments as possible.

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