As the UK continues to grapple with the political and economic implications of the UK’s vote to leave the European Union, it is important to note that Brexit is fundamentally a legal process. Numerous complex and unprecedented legal questions will need to be addressed in the coming months and years and some notable steps have already been taken in this regard.
Article 50 Background
The most fundamental and immediate legal question posed by Brexit is how to trigger Article 50. This is the mechanism through which the UK gives notice of its intention to leave the EU and this prompts formal exit negotiations to be completed within two years. Many in the UK have swiftly become familiar with the terminology of Article 50 but the precise wording is as follows:
“any Member State may decide to withdraw from the Union in accordance with its own constitutional arrangements”
Unlike most EU Member States, the UK does not have a codified constitution and, in that context, Article 50 presents more questions than answers. Legal opinion in the UK is divided as to whether Article 50 can be invoked by the Prime Minister alone, using her prerogative powers, or whether parliamentary approval will be required. It is also unclear whether parliamentary approval would be sufficient or whether a formal Act of Parliament would be required in order to trigger Article 50.
The Court Case
This divergence in legal opinion has quickly led to a legal challenge coming before the UK Courts. The essence of the challenge is that the UK parliament must authorise the triggering of Article 50; it is a pre-emptive move to prohibit the Prime Minister from triggering Article 50 on her own. A procedural hearing on the challenge was heard at the High Court on 19 July and two days for the full hearing have now been scheduled for mid-October. In that procedural hearing, it is worth noting that no question was raised as to the Court’s jurisdiction on this question. Government lawyers also confirmed that no attempt to trigger Article 50 would be made before the end of 2016 and that the Court would be notified of any change to that position.
Early indications are that a High Court decision on the challenge would be appealed directly to the UK Supreme Court rather than the English Court of Appeal and the final decision would be known prior to any steps being taken to trigger Article 50. It should, however, be remembered that political concessions may be offered in the meantime (eg. an early parliamentary vote) and the legal challenge may ultimately be dropped as a result.
The legal challenge is significant in that a majority of MPs were, and presumably remain, personally opposed to Brexit. Political reality would dictate that many MPs will feel obliged to respect the mandate of the referendum and vote to trigger Brexit even if they are personally opposed to such a move. It would, however, keep the question of Brexit a live political debate for the months (and potentially years) to come. Uncertainty regarding the UK’s future in or out of the EU would remain and a final parliamentary vote to trigger Brexit would undoubtedly become a new focal point for those wishing to remain in the EU.
While legal arguments will likely be developed and added to in the coming months, the principal arguments relating to the challenge can be roughly summarised as follows:
- One side argues that UK constitutional law provides for international treaties to be entered into through the use of the Royal Prerogative. The Royal Prerogative is formally exercised by the Queen on the advice of her Ministers, not by Parliament. The UK is a member of the EU by virtue of international treaties and removal from such treaties can therefore be commenced through the Royal Prerogative.
- The other side argues that EU laws have been incorporated into the UK legal system through legislation passed by Parliament. It would be unconstitutional if the Government were permitted to exercise the Royal Prerogative in a manner which would make legislation passed by Parliament obsolete.
The other legal issues
While the uncertainty regarding Article 50 is perhaps the most pressing question, various other legal points have been thrown up by the result:
- The EU referendum was not legally binding. It is therefore agreed that the referendum result has had no immediate legal effect and further legal steps will need to be taken in order to commence Brexit.
- What is also agreed is that the UK alone has the power to invoke Article 50. Despite their calls for the UK to trigger Brexit as soon as possible, neither the EU institutions, nor other EU Member States, can commence this process on the UK’s behalf. As yet, there has been no legal argument put forward to refute this point..
- Once triggered, it does not appear to be possible to stop the Article 50 process. If such an issue were to arise, however, the EU institutions may seek to alter arrangements and Article 50 will always be open to interpretation by the European Court of Justice.
- The question of the devolved administrations looms large over Brexit. While the devolved administrations do not have a ‘veto’ on Brexit, their consent is notionally required in some cases and, given the different results across the UK, this will present some very obvious political difficulties going forward.
While many of the legal questions surrounding Brexit appear procedural and technical at first glance, their outcome will play a key role in how the UK moves towards Brexit in the coming months and years. For this reason, our Brexit Advisers will ensure that you remain updated on developments.