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The leading candidates to replace David Cameron as leader of the Conservative Party, Michael Gove and Theresa May, have both said they won’t trigger the Article 50 process until the end of the year. This has annoyed François Hollande, who responded much like a woman whose husband tells her he’s leaving her but refuses to move out. “The decision has been taken,” he said, “it cannot be delayed and it cannot be cancelled. Now they have to face the consequences.” A speedy Brexit, he said, “would avert all the uncertainties and instability, especially in the economic and financial domains. The faster it goes, the better it will be for them.”
The problem is that it can be delayed and it can be cancelled — constitutionally speaking, anyway. Article 50 states that a government planning to leave the EU shall notify the EU “in accordance with its own constitutional requirements.” There is no legal precedent, because it’s never been invoked before, but it’s very clear that only the nation planning to leave the EU can trigger the process.
While the referendum clearly calls for Britain to withdraw from the EU, it offers no guidance about the terms of that withdrawal. The Leave campaign argued that the EU would immediately sign a favorable trade deal with the UK, given that this would be in everyone’s interests. They dismissed the suggestion that the EU might be unwilling to do this as scaremongering. But they seem to have been wrong. Jean-Claude Junker, at least, has said there can be no exit deal that gives the UK access to the single market unless it is willing to accept the free movement of labor. And it makes good sense for France to hold fast. Hollande is trailing in the polls and facing primary and national elections; it’s in his interests to look tough and to persuade as many companies as possible, particularly in the financial services industry, to relocate to Paris.
While the referendum made it clear that the majority of Britain wants to leave the EU, it says nothing about whether the government should accept a deal in which Britain keeps access to the market and accepts free movement.
The situation is particularly fraught because it’s now so clear that Boris Johnson never really meant for Leave to pass. His plan, it now seems, was to use a narrow victory for Remain as leverage for a better deal with the rest of Europe. He envisioned challenging Cameron as the plucky loser of the Brexit bid. His miscalculation, in Tory elder Michael Heseltine’s words, has generated “the greatest constitutional crisis of modern times.”
What does that mean? If a state has no written constitution, how can it have a constitutional crisis?
The constitutional crisis involves trying to figure out who, exactly, has the power to withdraw from the EU. The referendum was merely “advisory,” it didn’t automatically trigger Article 50. But who is it advising? Did it advise the Prime Minister? If so, would he or she have the authority to leave the EU on Britain’s behalf? Or does it advise Parliament? No one is quite sure.
There are, however, key constitutional principles at stake. According to the UK Constitutional Law Association,
the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament. Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.
They argue that without Parliament’s backing, the prime minister would be exercising so-called royal prerogative powers, a collection of executive powers held by the Crown since the middle ages and now in the hands of ministers. These are often used in foreign affairs. But case law, they say, establishes that these executive powers can’t trump an act of Parliament. Legislation, in other words, can only be changed by legislation:
The relationship between statute and the prerogative has long been contentious, and up until quite recently – the 1980s – it was arguable that the exercise of prerogative powers (though not their existence) was beyond the capacity of the court to review; the King could do no wrong. Whilst the courts might not have been able to review its exercise, they certainly could and did rule on whether the prerogative contended for by the Crown existed in the first place. One of the earliest limits on the prerogative was that it could not be used to undermine statutes; where the two are in tension, statute beats prerogative.
Case law is key to the separation of powers in the British Constitution. The seminal case was the 1610 Case of Proclamations. The Government cannot take away rights given by Parliament and cannot undermine a statute. “For the courts to hold otherwise,” they write, “would place the rights of British citizens at the mercy of the Government and would be contrary to Parliamentary supremacy.”
The “obvious intention” of the 1972 European Communities Act, they continue, is to ensure the UK’s membership of the EU and for the EU Treaties have effect in domestic law. Section 2 of the Act provides that “all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties are part of UK law.” Triggering Article 50 would invalidate the Act, and would thus end in the loss, to British citizens, of EU rights. It would also strip British citizens of their rights in relation to the European Parliament, such as the right to vote and to stand in European elections. The Government, they argue, cannot unilaterally strip these rights from British citizens. It can only do so with parliamentary approval.
Other legal scholars base an argument to the same effect on the 2011 European Union Act:
In constitutional terms, this section forms the bedrock of the mechanism for ratifying changes in the UK’s relationship with the European Union, and at the Bill’s Second Reading it was expressly conceded that it would affect the prerogative. The mechanism it envisages is one of dual consent. The consent of the electorate through a referendum is sometimes necessary, but never sufficient. The 2011 Act does not make referendum results automatically binding (in contrast with, for example Section 8 of the Parliamentary Voting System and Constituencies Act 2011). Parliament is, of course, unlikely to ignore the will of the electorate, but it might (and arguably should) use its powers to impose conditions and safeguards, procedural or substantive, on the manner in which the consequences of a vote in a referendum are dealt with.
It has long been accepted constitutional practice, they note, to secure parliamentary consent for matters where there was genuine doubt, even if slight, about the scope of the prerogative. This seems obviously to be such a case.
It gets even more complicated when you consider that a great deal of EU legislation has been incorporated into British law and tested in the courts. It’s thus part of case law, now. This means that even if a statute is removed, its principles would remain in force:
“If some EU law is retained in domestic law post-withdrawal, what would be the mechanisms used to interpret it?” said Prof Douglas-Scott. “Would UK courts revert to pre-1972 understandings of UK law, or would they continue to look at EU law and decisions of the European Court of Justice to interpret British law?”
Furthermore, new domestic laws would have to be introduced to fill gaps where the EU currently has competence — for example, in the licensing of medicines — added Prof Douglas-Scott.
Whatever type of legal divorce takes place post-Brexit, it will tie up resources for years to come. “You have to think of it as a reverse accession [to the EU]. It’s the whole of the civil service for a decade,” said Mr Gleeson.
It’s particularly complicated for the Conservatives, not least because most of them are against leaving the EU and see it as a one-way ticket into the abyss. The overwhelming majority of the financial and business community wants to keep free access to Europe’s single market, but there’s no way this will happen unless Britain accepts the great majority of EU rules and accepts the free movement of workers. The agenda of the party’s funders, in other words, is at odds with the agenda of the people who voted to Leave.
So what odds do you give that no one ever triggers Article 50?