For weeks leading up to Jun. 23 the news was full of questions. What exactly would happen if Britain voted to leave the EU? Two months later we still have more questions than answers, on everything from work visas to whether Scotland will hold another independence referendum. Thus far the debate has been centered in politics; now the UK must turn toward the legal issues.
One of the more pressing issues concerning Brexit is the fact that the referendum is not actually legally binding. Many ways to challenge or rescind the referendum have been brought up by those who favored remaining in the EU. The most promising of these solutions is the fact that Parliament will have to pass legislation to finalize agreements outlining the UK’s new relationship with the EU. Either house could vote against ratifying these agreements, but in reality the Members of Parliament (MPs) who favored remaining in the EU will face pressure to vote with the government when the time comes. They will also have to face the voters in the next general election in 2020.
There is another snag in this plan. To exit the EU, Britain will be invoking Article 50 of the Lisbon Treaty, which allows two years for negotiating new agreements between the UK and the EU before the UK is officially no longer a member of the EU. Even if no agreements have been ratified by Parliament after two years, the UK will no longer be a member of the EU. The only exception would be if all members of the EU agreed to extend the time allotted for negotiations.
Article 50 presents another legal challenge as well. It is unclear whether the Prime Minister can invoke Article 50, or if Parliament must give the Prime Minister the authority to do so. Those who say that Parliament must give permission refer to Britain’s 1972 European Communities Act, which provided for the UK’s membership in the EU originally. The legal argument is rather arcane, but the gist of it is that it is not clear whether the constitution of the UK places the power to override the European Communities Act with Parliament or if it is a prerogative power belonging to the Prime Minister. The argument in favor of Parliament holding the power is that only legislation can override legislation. However, most powers associated with foreign policy are prerogative powers of the Prime Minister. Confusingly, this issue involves both.
Prime Minister Theresa May has said that she does not intend to use Article 50 before the end of 2016, giving the courts time to sort out the legal challenges. As of mid-July at least seven private action cases have been brought to the court arguing that Parliament, rather than the Prime Minister, has the power to give notice under Article 50. The case will likely be decided by the supreme court of the UK.
The last challenge to Brexit is a call for a second referendum. It is argued that the European Union Act which was passed by Parliament in 2011 requires a referendum on any changes to treaties with the EU. This would require a second referendum when it is time to approve the new agreements with the EU. However, it is unclear whether the European Union Act will apply when the UK has ceased to be a member of the EU. Even if it did, Parliament could repeal the act.
The political debate over Brexit was answered in the referendum in June. While some MPs could choose to delay negotiations and present legal challenges, these are surmountable. Prime Minister Theresa May favored remaining in the EU, but is dedicated to respecting the will of the people and making sure the UK exits the EU smoothly. Just as she has decided to make sure that Brexit goes well, many MPs can be expected to vote according to what their constituents want, regardless of whether they personally favored leaving or remaining. If the British government is going to act on the results of the referendum, the question is how they will solve these legal troubles, rather than whether they will.