Weekly Notes: legal news from ICLR – 24 June 2016
Posted on 27th Jun 2016 in Weekly Notes
At the end of another turbulent week, the UK faces an uncertain future after a narrow victory in the referendum for those wishing to leave the European Union. We look at the political fallout and the legal implications.
EU Referendum result special
After a surprise (and quite narrow 52-48%) win for the Leavers in the EU Referendum on 23 June, the Prime Minister, David Cameron has indicated that he will step down in the Autumn to allow the election of a new leader of his party, who will also be our new Prime Minister. The turnout was comparatively high (around 72%), but the distribution of those supporting the leave and remain sides was far from even (see map). Remainers were in the ascendant in London, as you’d expect, but also throughout Scotland, signalling the possibility of a second independence referendum to enable an independent Scotland to remain within the EU. Northern Ireland also voted overwhelmingly to remain, leading to suggestions of reunification with the South, in order to continue to be part of Europe. It was middle (or little) England and Wales that voted to leave, and it was mainly older voters signalling their resentment of European rules and regulations, rather than the younger ones who would have to live with the consequences. (Turnout was, however, lower among younger voters, which was disappointing.) The effect has been to divide the United Kingdom into a number of starkly different regions, questioning the very continuity of its own union, let alone that with Europe.
The markets reacted swiftly with falls in the value of the pound and, to a lesser extent, the Euro, as against the dollar; and with significant drops on all stock markets. That will have wiped billions off the collective values of many of the pensions of those in the pensioner age group who voted for Leave. (Perhaps they hadn’t thought of that.) The Sun newspaper, which had supported Leave, helpfully published an article on “Poundemonium” explaining how Britons would be worse off in various ways in consequence, such as paying more for holidays, more for the cash to spend on them, and more to use their phones while abroad (since roaming charges were capped by European law and could therefore now be uncapped for Britain).
Meanwhile, in America, Fox News reported that Britain had voted to leave the United Nations, which demonstrates the political acuity of that often satirised news service. (Source: Huffington post) . And presumptive Republican presidential candidate Donald Trump landed in Scotland for a lightning visit to his new golf course, and hailed the referendum result as a “great thing” – perhaps not realising or caring that Scottish people had overwhelmingly voted to remain.
By the end of Friday, two petitions had started to gather huge numbers of signatures. The first, addressed to London mayor Sadiq Khan, urged him to declare London independent and apply to join the EU. At the time of writing, on Sunday night, that had reached 171,330 signatures.
But far more significantly, a parliamentary petition called upon HM Government “to implement a rule that if the remain or leave vote is less than 60% based a turnout less than 75% there should be another referendum” – the so-called Second Referendum Petition, which at the time of writing had reached more than 3.5m signatures. There were allegations of fraud but the Petitions Committee tweeted on Sunday night that “The petitions website has not been hacked. Fraudulent signatures have been and will continue to be removed, to ensure the site’s integrity.”
The political consequences
Over the weekend the political fallout continued, with a third of the shadow cabinet having resigned during the course of Sunday, and widespread calls for the resignation of the Labour leader, and leader of the opposition, Jeremy Corbyn. Meanwhile, there having been no sign for several days of George Osborne, the Chancellor of the Exchequer, on Sunday night it was said that he would make a statement on Monday morning – which might be to announce financial measures designed to deal with the economic fallout (an emergency budget, for example), or his own resignation, or both.
Meanwhile, the leading figures in the Leave campaign began to distance themselves from various rash promises made during the referendum campaign, such as that leaving Europe would (a) enable £350m to be spent instead on the NHS and (b) ensure closed borders and an end to unchecked migration, and (c) the idea that negotiations would begin immediately to ensure a swift and speedy exit from the European Union. There was talk of who would run in the inevitable leadership contest for the Tory party. But no one seemed to have a definite plan for how and when Brexit would be achieved. It seemed likely there would need to be a second referendum or a general election or both before anything concrete would actually be done.
There were consequences in Europe as well, with nationalist parties in some other countries hailing the exit vote as a triumph and the Czech foreign minister suggesting the President of the European Commission, Jean-Claude Juncker, should resign over his part in alienating the Brits from the great European project (see Daily Telegraph).
The legal consequences
European leaders called on Britain to activate the exit process, under article 50 of the Lisbon Treaty. But only the exiting nation itself can begin that process, by issuing an unequivocal notice. Cameron has not done so, and it is questionable whether any of the leaders of the Leave campaign could do so, even if they wanted to. It may indeed not be effective unless voted upon by Parliament and authorised by legislation: see UK Constitutional Law Association blog, Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role
The referendum is only advisory, and neither it nor the legislation under which it was conducted binds the government to act on the result. Once an article 50 notice is issued, however, the process must be completed within a two-year period. Meanwhile, all UK law, including that emanating from the European Union (implemented by UK legislation) remains in force. In the absence of an article 50 notice, what we have is a kind of “phoney war” (a phoney Brexit), as David Allen Green pointed out in the latest of a series of admirable posts on article 50 and the legal consequences of the referendum on his FT blog, Article 50 and the start of a political stalemate (£)
See also his earlier posts for the FT:
- Can the United Kingdom government legally disregard a vote for Brexit?
- David Cameron’s unnecessary EU referendum
And, on his Jack of Kent blog:
See also this series of constitutional law posts by Mark Elliott, on his Public Law for Everyone blog:
- Legally and constitutionally, what now?
- Can the EU force the UK to trigger the two-year Brexit process?
- Can Scotland block Brexit?
More links: the effect on human rights and other areas of law
For an analysis of the effect of the Brexit vote on human rights, see the Rights Info blog, BREXIT: What Does It Mean For Human Rights?
For an excellent roundup of other articles and posts on the legal effects of Brexit, see Gordon Exall, on his Civil Litigation Brief blog: Brexit: the legal consequences
The poetical view
On Twitter, a thread has been started on the topic of #WriteAPoemAboutBrexit. This is worth exploring, but in my opinion the aptest poem (particularly its first stanza) has already been written, by WB Yeats:
The Second Coming
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
Surely some revelation is at hand;
Surely the Second Coming is at hand.
The Second Coming! Hardly are those words out
When a vast image out of Spiritus Mundi
Troubles my sight: somewhere in sands of the desert
A shape with lion body and the head of a man,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Reel shadows of the indignant desert birds.
The darkness drops again; but now I know
That twenty centuries of stony sleep
Were vexed to nightmare by a rocking cradle,
And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?
That’s it for now. We will add links and updates as things develop over the next few days.
The normal roundup of domestic and global legal news will resume with next weekend’s Weekly Notes. Thank you for your patience at this deeply unsettled time.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.