Saturday, September 30, 2023

Troubled Times

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While UK’s referendum to leave the EU has shocked many, what remains is a load of legal tangles before fresh legislations are brought in to create a new relationship with Europe

By Sajeda Momin in London

Nigel Farage, the leader of the far-right UK Independence Party (UKIP) jubilantly announced on June 24 that the day would go down in British history as their Independence Day. Independence from the European Union, an organization that Britain had willingly joined just over four decades ago, and which had a big hand in making the UK the fifth largest economy in the world despite an economic downturn around the globe.

Nigel Farage, leader of the United Kingdom Independence Party, in a jubilant mood after victory for the “Leave” camp in the referendum
Nigel Farage, leader of the United Kingdom Independence Party, in a jubilant mood after victory for the “Leave” camp in the referendum

Listening to the murmurings from the electorate against the EU, Prime Minister David Cameron had made the foolish mistake of making a personal promise that if elected for a second term, he would hold a referendum in the country to decide on Britain’s future in Europe. Cameron won a second term and made good his promise to the detriment of his own career and his country’s future.

Costing £142 million of taxpayer’s money, the referendum threw up deep divisions in Britain—pitting town against country; young against old; rich against poor and most importantly, those who considered themselves indigenous English against all others.


While all the opinion polls kept talking of a close contest, none believed that the result would be in favor of Leave, not even the Leave campaigners. Apart from forcing Cameron to resign from the prime ministership, the shocking Brexit vote has opened up a Pandora’s Box of legal tangles that even the victors do not know what to do with.

President of European Council Donald Tusk and the President of European Commission Jean-Claude Juncker meeting Prime Minister Narendra Modi at the EU-INDIA Summit in Brussels in March end. Brexit seemed implausible then.
President of European Council Donald Tusk and the President of European Commission Jean-Claude Juncker meeting Prime Minister Narendra Modi at the EU-INDIA Summit in Brussels in March end. Brexit seemed implausible then.

Article 50 of the EU’s Lisbon Treaty provides an exit mechanism for any member state which wishes to leave, but there is no precedence as no country so far had ever expressed a wish to leave the Union. On the contrary, there have always been countries clamoring to join. The EU began with a group of six countries, but today has 28 members, including Britain.

According to Article 50, withdrawal would begin with a formal notification lodged with the European Council, which includes all 28 EU heads of state or government, the Council’s president, Donald Tusk and the president of the European Commission, Jean-Claude Juncker. But once that is done, the process cannot be stopped and the leaving state ceases to be an EU member within two years of the notification.

Mayor of London Sadiq Khan supports the Remain campaign at Roehampton University in London on May 30
Mayor of London Sadiq Khan supports the Remain campaign at Roehampton University in London on May 30

Leaders of the Brexit campaign are so surprised by their unexpected victory that despite an angry Juncker demanding a formal notification right away virtually saying “go now”, they are insisting that they will take their time to invoke Article 50. The decision for delaying the notification has more to do with the fear of what will happen next rather than thinking over their decision and how to implement it. Throughout the campaign, Brexiters were asked about their plan of action if they happened to win and none could give a reply. Once the two-year stop-watch has started ticking, there are no provisions allowing Britain to stop the process by withdrawing its notification.

If Britain wishes to ignore the Article 50 process, it could do so by simply repealing its European Communities Act 1972. However, this would be a breach of the UK’s treaty obligations under international law. It would also anger the Europeans and make it impossible for Britain to strike any preferential trade agreements with the EU. Hence, it seems very likely that Britain will follow the correct process if it finally does decide to leave. 


Cameron, who put his neck on the line over the referendum only to have it chopped off, resigned with hours of the results, and refuses to take on the burden of navigating Britain out of the EU. He has promised that there will be a new prime minister by the time the Conservative Party heads off for its annual conference in October, which will do the needful. While the government accepts that it is their “democratic duty to give effect to the electorate’s decision”, there is nothing legally binding in the verdict of the referendum. Until now, campaigners on both sides were claiming that whatever the electorate decided in the referendum was a done deal, post-referendum both sides are raising questions as to how they will implement it according to British laws.

Leave EU supporters celebrate the Brexit result in Sunderland
Leave EU supporters celebrate the Brexit result in Sunderland

Britain’s Referendum Act allows six weeks for anyone challenging the result to bring a claim for judicial review. Considering the fact that Scotland and Northern Ireland, which both voted overwhelmingly to remain in the EU, are already up in arms at being dragged out against their will and are talking of breaking up the UK, there are bound to be some challenges to the decision. Many in London too, which voted to stay in, are demanding that it be declared an independent international city that is aligned with EU rather than the rest of England—a highly unlikely possibility. Millions have signed an online petition demanding a second referendum to “right the wrong” carried out on June 23. While the petition has no legal status, parliament has to take notice and discuss it if it has more than one lakh signatures which it already does.


Even if no challenges are lodged, there is a constitutional requirement that the issue is debated in both houses of parliament. In fact, the new prime minister will have the onerous task of guiding the result through parliament. Supporters of Brexit may argue that the referendum result is sufficient, but parliament did not surrender its sovereignty to the electorate when it passed the EU Referendum Act 2015 allowing the referendum. The Act lays out no terms about the consequences of a referendum vote. How-ever, it is suggested that there would have to be at least a House of Commons majority in favor of Brexit before a notification is lodged. What if the government cannot get a majority, a very likely possibility as most MPs across party lines were in favor of Remain. It could precipitate an early general election and a new government under a new prime minister who would not be under any political obligation to implement the referendum result.

If, eventually, the UK does go through with Brexit, then there are a whole load of more legal tangles that it has to first extricate itself from and then put in fresh legislations to create a new relationship with the EU, but this time, from the outside.

The Leave campaigners kept pounding home the argument to “take back control” and “make our own laws”. Hence, they would like to take immediate steps to reduce the influence of the European Court of Justice. However it is not so simple. “Disentangling the UK from the substantial body of EU legislation which applies in the UK is a massive task which will take many years to complete,” explained Judith Aldersey-Williams, a senior lawyer.


There is also the issue of UK nationals currently living and working in other EU countries. There are currently three lakh British nationals living in Spain alone—what happens to their position? “Free movement of people”, a regulation which has allowed lakhs of Europeans to migrate to the UK, and which is the main bugbear of the Leave campaign, will be curtailed on both sides. If UK stops migration from Europe, it is also very likely that Europe will hit back by saying no to British migrants. It may even throw out those British nationals who are already living in Europe or insist that they leave and return only on a visa.

Once Britain is out of the EU, it will have to strike a new treaty which will replace the old—particularly one which will deal with trade. Currently, the UK has access to a market consisting of more than 500 million people for its goods and services. It is bound to want to find some way to hold on to this, perhaps by negotiating for preferential market access. However, Europe will want to extract its pound of flesh and may demand that the UK in return concede on various immigration policies, including “free movement of people”, concessions the Leave camp are against, bringing us back a full circle.

The Brexit referendum has done many things—divide the country, possibly facilitated the break-up of the UK, brought racists centre-stage and taken British politics one step further to the right. But it has not achieved what it set out to do—take Britain out of the EU. For that to happen, there are still many legal imponderables that the country has to clear before it can press the button for leaving.

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