DECODING THE LEGAL JARGON SURROUNDING THE REFERENDUM
On June 24th 2016, the people of the United Kingdom woke to the reality that they had voted to leave the EU. However, as politicians leapt to the forefront of the media to discuss the months and years to come, many were left behind by the terminology being thrown around. While the British people had made the decision to leave, some repercussions remain unexplained and unclear to the general population. So in legal terms, what does this referendum mean for the nation?
What is the legal effect of the referendum?
The referendum has no direct legal effect, as it is not legally binding. The referendum of itself does not trigger withdrawal from the EU. The withdrawal is triggered solely by exercise of article 50.
Article 50 is part of treaty within the EU which governs the process by which a country leaves the international organisation. This formal notification of the decision to leave can only be given by the Prime Minister, exercising his authority as the head of government. Notification to EU of the outcome of the referendum is not a definite decision to enact Article 50.
Once the formal notification is given under Article 50, the clock starts ticking. Great Britain and the EU will have two years to negotiate future relations with one another, after which all the treaty obligations will cease. These two years can be extended only if all of the other EU members agree to the extension.
There is no set timescale within which Article 50 must be triggered. As it will initiate negotiation on national withdrawal from the EU, there will need to be a government in place who will have a plan as to what it wants to achieve in those negotiations and a strategy for doing so. No such government is currently in place, and any new government is unlikely to be ready to start those negotiations before the end of this year.
None of the concessions that the current prime minister negotiated before the referendum apply, because they were conditional upon the country voting to remain in the EU.
The primary issue on negotiation will be seeking access to the free market while restricting free movement of people between EU countries and the UK. One possible model is that of Norway who have access to the European Economic Area but have a safeguarding clause which allows them to limit some free movement if economic pressures demand it. However, we won’t know if the rest of the EU will agree for us to have a model similar to Norway until the formal negotiations start once Article 50 is triggered.
The referendum was an exercise in direct democracy, but fundamentally the UK is a parliamentary democracy in which parliament makes decisions for the people. Parliament is formed by a general election and thus a general election on a one issue agenda of remaining the EU could lead to Article 50 never being triggered but this may be wishful thinking.
What effect does the referendum result have on current UK law?
The British legislation put in place to give effect under the terms of membership of EU will not disappear overnight. What parliament will need to decide is what acts to keep, amend or dispense with completely. For example, the Equalities Act which provides many of the protections against discrimination on the basis of race, disability, age etc. is very likely to be retained or replicated. Given the volume of legislation which will need to be considered, any changes will happen over a long period of time.
Withdrawal from the EU will not automatically affect the UK’s status as a signatory to EU Convention on Human Rights. Again were the Human Rights Act to be repealed there may well be public pressure for the principles to be enshrined in alternative legislation.
Will this experiment in direct democracy prevail over parliamentary democracy?
In these politically unchartered waters…who can say?