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Ollie Capehorn

Light at the end of the Channel Tunnel?

In light of the anger, fear, and pessimism I’ve been scrolling through on social media this weekend, I want to offer just one piece of optimism. It revolves around Article 50 of the Lisbon Treaty, the provision which sets out the procedure for leaving the EU. I have a suspicion (that is shared by some prominent legal commentators) that it may never actually be triggered, and the UK will remain a member of the European Union.

Nothing has actually changed

Although we woke up on Friday morning with news that “Britain is to leave the EU”, the more precise news is that the ‘Leave’ campaign in an advisory referendum received the majority of votes.

There have only ever been three national referendums in UK history, and they fall into two categories: consultative and non-consultative. The AV referendum in 2011 was ‘post-legislative’, meaning that if ‘yes’ had won, then the Government had undertaken to give legal effect to that choice.

The EU referendum and the EEC referendum in 1975 are different in that the results — in legal terms at least — are meaningless. They don’t obligate the government to do anything, and they have no direct bearing on our legal relationship with the EU. Put simply, the referendum is an information gathering exercise for the government. It’s nothing more than a data point to help the democratic process.

How to trigger Article 50

The crucial point is that the referendum alone isn’t enough to set the Brexit wheels in motion — the legal mechanism of which is found in Article 50 of the Lisbon Treaty. Article 50 has never been used before, so there is no CJEU jurisprudence on exactly what formalities are required. Fears that the interpretation of “notify the European Council of its intention [to withdraw]” under Article 50(2) were satisfied by the referendum result alone have been laid to rest by a statement by a European Council spokesperson, who said:

The notification of Article 50 is a formal act and has to be done by the British government to the European Council, it has to be done in an unequivocal manner with the explicit intent to trigger Article 50.

So, we know that the vote itself isn’t enough to start the formal legal proceedings of Article 50(3), which sets a statutory two year negation period before the UK is out of the EU for good.

Although there is considerable political pressure from the EU to pull the Article 50 trigger, (President Jean-Claude Juncker stating “it doesn’t make any sense to wait…”) there doesn’t seem to be any sense of urgency from the UK, and there is nothing the EU can do hurry things up. Article 50 was drafted in such a way as to put the onus on the withdrawing state to make the declaration, and thanks to the clarification by the European Council, there is no reasonable way that the EU can take the results of the referendum, or any of the subsequent political chitter chatter to be a ‘formal act’ in pursuance of an Article 50 withdrawal.

In fact, the only way the EU could speed up the process would be to use Article 7 of the Lisbon treaty. This too has never previously been used, and exists to respond to exceptional cases where a Member State is to be removed following ‘serious breach of [EU] values’. Nobody is suggesting that the UK has done this, so the EU and its members can do nothing but wait.

But, they may have a long wait ahead.

David Cameron, despite giving strong indications during the campaigning process that he would invoke Article 50 immediately following the announcement of the votes, opted not to. This is understandable. There would be no political benefit for him to get involved in the messy, and enormous divorce process.

“Why should I do all the hard shit for someone else, just to hand it over to them on a plate” — David Cameron

So he’s handed the responsibility over to the Leave campaign. And it looks like nobody from the Leave campaign wants to do so either. Cameron may have played one of the most beautiful political check mates in recent times.

Boris Johnson may have counted on backing the leave campaign as a way to further boost his profile, and sneak his way into Number 10; he may not have calculated that Cameron was going to leave his successor to do the dirty work. To be the unelected Prime Minister who is tasked with dismantling and renegotiation our ties with the European Union is surely a political death wish (it’s going to be messy no matter who does it), and this may explain why Johnson claims there is “no rush” to leave the EU. The two obvious points to make the formal declaration would be either the day of the results of the referendum, or when a new Brexit-friendly Executive is formed. The former didn’t happen, and the latter isn’t looking likely.

The Lisbon Treaty is drafted such that the balance of negotiating power in the event of Member State’s exit is with the EU — it is the EU that gets to set the deal, and present it to the parting Member State, and once 24 months have elapsed, if the Member State doesn’t like it, it has no further negotiating recourse. Even once an agreement is reached, it requires ratification by EU Parliaments. Boris almost certainly isn’t the right man for the job, and he probably knows it, so… we wait.

Just one part of a puzzle

If you take the view that the referendum acts solely as guidance to Parliament, whose primary responsibility is to act and protect the greater interests of the UK, there is every chance 37.4% of the eligible electorate voting leave is not alone a significant enough figure for the Executive to be satisfied that they are giving effect to the will of the people. The figure is so low that it has been called a “democratic failure” by one prominent commentator.

Add this to other pertinent data points, such as the fact that a few of the Leave campaign’s promises have since unravelled; a petition calling for another referendum reaching an unprecedented three million signatures; prominent campaigning figures stating on record “In a 52–48 referendum this would be unfinished business”; and senior Members of Parliament calling for a second referendum, and there are reasonable grounds to assume that Parliament may not consider the majority high enough to look at in a vacuum.

Then of course there are the wider political ramifications in the UK. Leaving the European Union would almost inevitably trigger another Scottish independence referendum, would cause instability in Northern Ireland, and would potentially cause a significant brain drain from London as the parts of the City seek relocation — three areas which overwhelmingly voted in favour of staying in the European Union. Not to mention reports of a breakdown in public order following the vote.

Nobody knows

The truth is absolutely nobody knows how this will pan out, and the current political climate isn’t in any state to provide the answers. The Conservative Party is deeply divided, Labour are on the brink of a leadership coup, and the Liberal Democrats are optimistically promising to scrap Brexit as an election manifesto pledge (what could possibly go wrong…). It’s all to play for, and there is a chance (albeit a small one) that Article 50 just won’t be trigged, and all of this will be forgotten about.

The European Council have even acknowledged this possibility by using the choice words “if it is indeed the intention of the British government” [emphasis added] when explaining the mechanics of Britain triggering Article 50 following the Brexit win.

None of the below are at all likely, but all are possible. That’s enough to stay optimistic, right?

  • Scotland could theoretically block Brexit by using Section 29 of the Scotland Act, which suggests that eliminating the application of EU law in Scotland would require approval by the Scottish Parliament.
  • The Northern Irish Assembly or the Welsh assembly could reject Brexit, and the Prime Minister could use this as an excuse for not triggering Article 50.
  • Another referendum could happen. Of course, this is no guarantee that the result would be different, but there are indications that following the referendum, the franchised are now even more clued up about what leaving the EU would mean to them and their country.
  • We could have a Labour majority at a general election, which would almost certainly put the brakes on Article 50. Although the Fixed Terms Parliament Act means we are supposed to wait until 2020, there are in fact a number of ways in which we could have a general election as soon as this year.

But, as I said, all quite unlikely. David Cameron’s former Oxford tutor, and highly respected Constitutional lawyer Vernon Bogdanor thinks that a second referendum is unlikely. I can’t think of a reason why the Tories would want to call a snap election soon, as there is a slim chance they will keep the current majority if they did, and the EU seems quite keen for us to hurry along and get lost already. All quite unlikely, but then again, so was Brexit.

Update 28th June 2016: My former Constitutional Law tutor, along with two other notable scholars have written a fantastic blog post on the UK Constitutional Law Association Blog arguing that as a matter of domestic constitutional law, the new Prime Minister is unable to issue the Article 50 declaration without the support of Parliament. It’s well worth a read.