Brexit: Legal perplexities

On the 24th of June this year the whole world woke up to the startling results of a referendum where a majority of British citizens had voted in favour of leaving the European Union (EU). The referendum turnout was a staggering 71.8% where more than 30 million citizens had voted, , precisely 51.9 % were in favour of leaving the EU while a 48.1% voted to stay.

While the Brexit brings in its wake a plethora of concerns from a nationalistic dimension, one of the main issues that has now become of primary concern is the legal mechanism through which UK's exit from the EU can actually be implemented. The Brexit, (i.e Britain's referendum going in favour of an exit from the EU), serves as the first of its kind since mechanisms for formally leaving the EU had been put in place since 2009, but such mechanisms have never been triggered till date as no member state had, till now, initiated an exit from the EU.

In the simplest of terms, a 'referendum' refers to a general vote by the electorate on a single political question that has been referred to them for a direct decision. In relation to the legal status of the outcome of this referendum, it is a misconception, and also a common error in terminology, that because majority votes are in favour of leaving the EU, that Britain has 'decided' to leave the EU. The memorandum is simply advisory in that it expresses the will of the citizens, but it is not legally binding. This can be said with conviction based on two matters. Firstly, it is unambiguous that in the UK, Parliament is sovereign and the ultimate decision, therefore, lies with the Parliament. Secondly, a referendum shall only become binding if the relevant legislation obliges the Government to change the law to be in line with the results of the referendum, and no such clause had been included in the EU referendum legislation.

It has, nevertheless, been widely understood that while the referendum is not legally binding, it might still be politically so since it shall now be considerably difficult, if not impossible, for the UK Government to disregard the referendum.

As of now, the UK is still a member of the EU. The formal procedure for an actual exit would only begin if Article 50, which was inserted into the Maastricht Treaty (i.e the Treaty on EU) when it was amended by the Lisbon Treaty, is invoked by the UK and a notice of intention to leave the EU is communicated to the European Council. Article 50 had only been in force since 2009, and owing to never having been invoked by any member state, its application and the procedure for Britain's contemplated exit under this Article remains ambiguous. Article 50 provides the following:

1.            Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2.            A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

3.            The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

As such, in line with Article 50, once a notice of intention to leave the EU has been given to the European Council, time for the 2-year period mentioned under Article 50(3) starts running within which the mechanism and the terms of departure of UK from the EU shall be negotiated and the EU treaties shall cease to be applicable to UK. Even if an exit agreement could not be reached in the 2 years time, UK shall cease to be a part of the EU at the end of the 2 year period, unless the same is extended. On a practical note, no notice of intention under Article 50 has yet been forthcoming from the UK, and is also unlikely to emerge until a new Prime Minister takes office in replacement of Mr. David Cameron. 

Having summarised the procedure for an official Brexit, we may now consider the legal position of the British Parliament if UK leaves EU. Although UK is a nation where parliamentary sovereignty prevails, by virtue of the European Communities Act-1972, EC Law has been given priority over national UK law in the situation where a conflict arises between the two. Owing to such allegiance to the supremacy of the EU law, the law of UK has, ever since, been largely shaped by prevailing EU laws. Needless to say, such prevalence has affected both primary legislation (i.e statutes) and secondary legislation (i.e case laws). In such circumstances, it remains a challenge for the UK Parliament to separate the EU laws from the national law by repealing the European Communities Act-1972, and also to ascertain areas where there is a vaccum in the existing national law owing to those areas being widely regulated by the EU laws.  

Considering all of the aforesaid, while the referendum and the current Prime Minister's announcement of his resignation has left the country in a state of precariousness, the worst is yet to come since no notice has yet been provided under Article 50. Once notice is served, the biggest uncertainty that now looms over the country remains the procedural separation of EU legislation from national legislation, and negotiation the terms of the exit agreement within the 2 year period. This one referendum may leave the country in economic, political and procedural uncertainties for years to come. With Article 50 being invoked once by a country, this might very well be the beginning of an end.

The writer is an Advocate, Supreme Court of Bangladesh.