Some legal consequences of a leave vote on Thursday are clear. But many more remain uncertain.
The clearest point is that the vote on Thursday does not change the law. The UK will still be a member of the EU on Friday, even if 100% of the electorate have supported Brexit. Although the government accepts that it is under a “democratic duty to give effect to the electorate’s decision”, there is nothing in the European Union Referendum Act 2015 that makes any changes following a leave majority.
Another certainty is that article 50 of the EU’s Lisbon treaty provides an exit mechanism, under which any EU member state “may decide to withdraw from the union in accordance with its own constitutional requirements”. A state that decides to withdraw “must notify the European council of its intention”.
So withdrawal would not begin until a formal notification is lodged. The European council includes all 28 EU heads of state or government together with the council’s president, Donald Tusk, and the president of the European commission, Jean-Claude Juncker. Article 50 says that the leaving state ceases to be an EU member two years after a notification, unless an extension of negotiations has been agreed unanimously by the European council and by the leaving state, or the withdrawal agreement sets an earlier or later date.
There’s no emergency brake allowing a country to stop the process by withdrawing its notification. But there seems no reason that this could not happen if the other 27 EU states were to agree.
As a matter of national law, it would be possible for the UK to ignore the article 50 process. Parliament could simply repeal the European Communities Act 1972. However, this would be a breach of the UK’s treaty obligations under international law. And it would presumably make it more difficult for the UK to strike a preferential trade agreement with the EU after withdrawal.
Assume, then, that the government decides to follow the procedure set out in article 50. First, there must be a decision in accordance with the UK’s constitutional requirements. That’s obviously a matter for the UK rather than the EU. But because the UK does not have a codified constitution, there is room for argument about what those requirements are.
I would suggest, however, that the first stage would be for the courts to resolve any disputes arising from the referendum itself. If the remain side loses, some sort of challenge must be almost inevitable – if only as a way of buying time.
Things have already gone wrong with the voting arrangements. The most significant of these was on 7 June, when the electoral registration website crashed. Voters in Great Britain – but not Northern Ireland – were allowed two more days to register.
Other errors have been logged by the Electoral Commission. A software problem meant 3,502 non-eligible EU citizens were sent poll cards this month and, in some cases, postal votes. Some postal voting instructions contained images that appeared to favour one result over the other. Some overseas ballot papers were apparently lost in the post.
All these problems have been put right but there are bound to be others on the day. Even if there is a large majority in favour of leave, a prime minister who supports remain could plausibly argue that the legal process should take its course before an irrevocable political decision is taken. The narrower the majority, the stronger that argument would be.
The Referendum Act allows six weeks for anyone challenging the result to bring a claim for judicial review. That would take us into parliament’s summer recess. The courts also take a summer break. So it could be some months before any legal challenges were finally resolved.
The next constitutional requirement must surely be a debate in both houses of parliament – not necessarily on a bill, but certainly on a substantive motion. Some supporters of the leave campaign might argue that the referendum result is sufficient. But parliament did not surrender its sovereignty to the electorate when it passed the Referendum Act. The legislation says nothing about the consequences of a vote. My view is that there would have to be a Commons majority in favour of Brexit, at the very least, before a notification is lodged.
Would such a motion pass? I make no claims to be a political commentator but there must surely be some doubt. It all depends on whether enough MPs who currently support the remain side would be willing to follow the wishes of the electorate. David Cameron has promised to do just that and so we must expect that his side will be whipped. But since we know he thinks it would be disastrous for the UK to leave the EU, we may wonder how seriously such a whip would be taken by Conservative MPs who feel he has led the country astray. There is every chance that some remain supporters would continue to vote in what they currently regard as the national interest, especially if the economy had taken a battering following a vote to leave.
If the government cannot get a Commons majority for Brexit, all bets will be off. An opposition party might call a vote of confidence. Normally, the government’s supporters would rally round. But, for once, turkeys might vote for Christmas. Conservative MPs on the remain side would have every interest in precipitating an early general election under section 2(3) of the Fixed Term Parliaments Act 2011.
A new government, headed by a new prime minister, would not be under a political obligation to implement the referendum result – unless it had made this a manifesto commitment. Of course, if the prime minister who leads the Conservatives into an early election is Michael Gove or Boris Johnson, the party might do just that. Even then, the Conservatives’ new leader might promise a renegotiation of the UK’s membership as an alternative to Brexit, knowing that the UK would be in a much stronger position than it was when Cameron tried this tactic.
Not even the most ardent Brexiteer would want to rush into a notification under article 50. Once the fuse is lit, the UK’s negotiations position grows weaker by the day. Timing is all.
And what effect would withdrawal have on the legal systems of the United Kingdom? That’s the subject of another article – if not several books.