Law v. Politics

Frederick Wilmot-Smith

The legal problems arising from the EU referendum need to be distinguished from the political ones. One thing is clear: the referendum itself had no more legal effect – either within the United Kingdom or on the UK’s legal relations with the European Union – than a straw poll of your friends (or mine). The UK is still a member of the EU and has not, legally, indicated its desire to leave the Union. The political consequences are quite another matter, and may well lead to exit from the EU.

The UK could, in theory, unilaterally withdraw. This would be a radical way to proceed – it would be a repudiation of the UK’s international obligations – and virtually no one endorses it. Before the Treaty of Lisbon, there was no clause dealing with how to withdraw from the Union; now there is, in Article 50 of that treaty. Once invoked, a two-year deadline is imposed on negotiations (though this may be extended by unanimous consent). When the clock starts ticking, the UK’s negotiating position is much worse than the EU’s. Before the vote, David Cameron suggested he would invoke Article 50 immediately; he now says he will leave it to his successor.

Were Article 50 invoked today, a complete agreement would almost certainly be impossible in the two-year timeframe: it took 10 years to negotiate Switzerland’s agreement with the EU. There was hope in some quarters that an agreement could be worked out before Article 50 is triggered. The EU leaders have rejected this possibility. The gridlock can be broken only if one side budges. Neither looks likely to do so any time soon. David Allen Green has suggested in the Financial Times that Article 50 may never be invoked.

The legal and political positions now get harder to cleave. No one knows who has the legal power to invoke Article 50. Some people, including a former government lawyer, believe that the government can invoke the article on its own; others, including constitutional law experts at Oxford and UCL, believe that it cannot be invoked without an empowering act of Parliament. The question of who is right could come to court. But as H.L.A. Hart wrote in The Concept of Law, ‘when courts settle previously unenvisaged questions concerning the most fundamental constitutional rules … all that succeeds is success.’ He meant that, in these rare cases, a court’s decision only changes the law if people accept that it does. Part of the reason it is uncomfortable for lawyers to adjudicate on very controversial political questions is that their success is never guaranteed.

Some questions, Hart adds, ‘may divide society too fundamentally to permit of [their] disposition by a judicial decision.’ A political solution avoids any possibility of dissent from the courts. Yet it may also be hard to come by. A vote in the House of Commons to trigger Article 50 would require many MPs to vote against their conscience on membership of the EU. There would be other arguments of principle: Scottish MPs, for example, could say that they have a democratic mandate to prevent their constituents being withdrawn from the EU against their expressed will.

There are two slivers of silver lining. Were a court to say that an act of Parliament is required, a national court, not a European one, would have resolved the issue. Were an act not forthcoming, that decision would itself affirm the sovereignty of Parliament. This probably wouldn’t dispel the clouds, though that in itself would be telling.


  • 28 June 2016 at 9:29pm
    streetsj says:
    1. Not too much should be read into politicians' statements ahead of the negotiations - they are merely positioning points.
    2. The SNP is on very shaky ground: if they had won their referendum it would have taken them out of the EU.
    3. What is the attraction of ever closer union when everything else is going in the opposite direction: Czechoslovakia, Yugoslavia, USSR, Iceland. Or wants to: Scotland, Catalonia, etc.
    4. In the end Parliament will decide what's legal. The clamouring to pull the trigger on Art 50 is doing no good. If everyone calmed down they would soon recognise that not much is going to change on the Economic front. Unless that is the EU and the Euro breaks up which, in my view, would be for the better.

    • 29 June 2016 at 8:52am
      micharison says: @ streetsj
      Czechoslovakia?? The Czech and Slovaks parted in the early 90s. They did so without either a referendum nor any violence and have had functioning democracies and growing economies since then. They both began accession negotiations and joined the EU, along with others in 2004. There is no comparison to be made with Yugoslavia, or any others in your list, and although there are eurosceptics, as in any nation, they have manifestly benefited from their EU membership and are conscious of this.

    • 29 June 2016 at 2:11pm
      Alan Benfield says: @ micharison
      Yes, and in the case of Czechoslovakia, it can be argued that that divorce was nothing to do with the will of the people, being largely a stitch-up organised by Václav Klaus and Vladimir Mečiar behind the back of Václav Havel. By the way, the Slovaks abandoned the slovenská koruna for the Euro in 2009 and seem to be quite happy with it.

      In the case of the land of the Southern Slavs, it had always been a fractured place, but its violent end was largely manufactured by self-seeking politicians in the wake of the death of Josip Brod. The 'ancient hatreds' stuff just doesn't wash. Oh, and they all want to be EU members, by the way.

      The USSR? Grew out of a settlement imposed by Czarist Russia and extended by the 'socialist' revolution, rather than being a happy family of socialist republics who had all voted to be in it.

      Iceland? Well at one time, most of Scandinavia was dominated by Denmark (it repeatedly declared war on Sweden and even ruled part of Estonia for a time), but this can hardly be called an amicable union on equal terms. Considering its position, I really can't see that Iceland breaking away from Denmark is at all surprising. And Iceland was considering joining the EU (and the Euro) until its banks blew up.

      What's the attraction of ever-closer union? Well, you'll have to ask the US. As James Madison put it, because "one could hardly expect the state legislatures to take enlightened views on national affairs", stronger central government was necessary. This led to a federal union where the rights of states were subordinated to the Federal Government. Mind you, secessionists have been disputing the legitimacy of the American union ever since...

    • 29 June 2016 at 2:15pm
      Alan Benfield says: @ micharison
      Oh and it was made clear by the SNP that, if they left the union and a consequence was that they were no longer considered part of the EU, they would immediately negotiate with the EU to join as a sovereign state. Shaky ground? - I don't think so.

    • 29 June 2016 at 8:18pm
      streetsj says: @ Alan Benfield
      They would have taken Scotland out and then had to negotiate to get in with Spain in particular looking to make things hard for them. Seems very shaky to me.

    • 1 July 2016 at 6:37pm
      SinisaMihajlovic says: @ streetsj
      If the UK is already out of the EU, and Scotland wants to stay in or join separately, I think Spain wouldn't be the implacable enemy that they would have have been previously. It's a shame for Scotland that PP won the election: they are obsessed with the territorial integrity of Spain, and are very petty, so could still try to make things difficult for them. They are however flexible on any policy if you throw a few coins their way.

    • 12 July 2016 at 9:41pm
      John Cowan says: @ Alan Benfield
      Iceland separated from Denmark de facto during World War II, because Denmark was occupied by Germany and Iceland by the U.S. After the war, the Icelanders decided not to resume the former personal union (they already had had legislative independence, far more than Scotland has today).

      Secession has been a fringe (indeed, lunatic) opinion in the U.S. for longer than any of us have been alive. Lots of people are for state's rights, but essentially none of them for secession.

  • 29 June 2016 at 6:35am
    rm1 says:
    MP's would not have to vote against their conscience, they could abstain if they don't agree with leaving the EU in deference to the democratic will that does.

    • 1 July 2016 at 6:38pm
      SinisaMihajlovic says: @ rm1
      Many don't have one in the first place...

  • 29 June 2016 at 6:47am
    cufflink says:
    The back of the class has raised its hand and said it wants to leave the room, not to relieve the pressure or to go anywhere but to mill about in the political corridors. It says it doesn't like the swats sitting on the front benches and as the curriculum has been set by some obnoxious foreign Academy, good or bad, prefers a Will Hay future of mortar boards and chalk throwing.
    There is no answer to this other than the institution of a closed shop to all applicants who do not regularly eat Lancashire Hotpot or Geordie Stew by right of birth.
    What we should do is let them leave thre room then call the register and lock the door. The Caretaker phones the police.

  • 29 June 2016 at 1:26pm
    ghosted says:
    Would MPs have to vote in line with what their constituents have voted or in line with what the majority of the country has expressed a desire in? Say, a London MP, or one from the various cities.

    If an MP's duty is to their constituents, rather than the broader democratic will, should an MP vote to follow their conscience if they think it is better for the people who elected them, or follow the clearly expressed desire? Say, an MP from Cornwall or southern Wales may feel that being in the EU provides more benefits for their constituents than being out of the EU.

    What would be a greater constitutional challenge, going against the advisory referendum or, essentially, supporting the break up of a 300-odd year old union?

    If a party with a manifesto pledge of "remain" were elected to power, say the LibDems, would that overrule the requirement to Brexit?

  • 29 June 2016 at 1:42pm
    Rikkeh says:
    I was always pretty happy with my country's constitution sketched on the back of a fag packet and improvised as it went along.

    Now I'm really not.

    We're a liberal democracy and while we've been hearing a lot about the democracy side these past few weeks, we've not been hearing much about the liberal part: the fact that for every 13 people who wanted to give up their access rights to the EU there were 12 people who didn't and who now look like they're going to be forced to do so.

    What a mess.

    • 29 June 2016 at 3:36pm
      ianbrowne says: @ Rikkeh
      Liberalism is about freedom, I guess. I can see that some people's freedom, such as the freedom to work in and move freely around the EU, may be reduced. But according to the Brexiters, there will be a corresponding gain if freedom – people will be free from the grip of the EU.

      As for consent, democracies rely on “the tyranny of the majority” to function.

      So I'm not quite sure what aspect of liberalism you are thinking about here and how it applies in this case in ways it doesn't in other cases.

    • 13 July 2016 at 6:26am
      BlakMark says: @ ianbrowne
      Democracy is dangerous: tyranny of the majority is a bad, not a good, mitigated by constituionalism - safeguards, not least the legitimacy of political opposition. But also by the need for bargaining within and between parties, the rule of law etc. The ill-conceived referendum (& I do not subscribe to critique of voters, only to the fact of Cameron's intention, ignorance/disconnection from public opinion etc.) excluded safeguards so we now have something of a tyranny of the minority - except that Brexit is not entirely clear in its meaning, covering a myriad of laws and treaties, so that the actual outcome remains, to a large extent, politically indeterminate.

  • 29 June 2016 at 11:12pm
    duglarri says:
    The Brexit mess reminds me of the story of the travelling salesman who stops at a farm to ask directions. The old farmer looks at the young salesman, pushes his straw hat back on his head, and drawls, "I'm sorry son. You can't get there from here."

    Separate from the EU? How? There's no possibility of the kind of arrangements the Brexit sponsors said would result. Their campaign was all magical thinking: promises they could not keep. Much as Trump offers the impossible: a physically impossible wall, a physically impossible ejection of 11 million people and a physically impossible prohibition on the entry of muslims- Bexiters offer the impossible: continued trade with Europe while dictating terms.

    It can't be done. It won't be done. No possible arrangement Boris can offer would pass Parliament, or Europe either. So what happens, in a situation where nothing can be done?

    What if you gave an exit, and nobody came?

  • 12 July 2016 at 5:05pm
    michaelheaslip says:
    "You can check-out any time you like,
    But you can never leave!" - Hotel California?

  • 12 July 2016 at 7:37pm
    abcd85 says:
    There seem to be fundamental misunderstandings about what Brexit entails in full.

    As with all revolutions, there is a destructive and a constructive phase, which should not be conflated. In particular, the UK Government should not imagine that it can aim for a conditional Brexit. That, after two years, Ms May can turn around and say - sorry, the price is too high: we stay. In essence, while in joining one negotiates, and then signs, the process is reversed on the way out. First, one signs out; then one negotiates the consequences.

    The very act of leaving brings its consequential costs. As one example, the UK might be liable for its share of the obligations under the EU pension fund. The EU Commission has issued 54 billion € in bonds. What are the costs of redeeming such liabilities? No one has even started to gather these liabilities to see what they amount to.

    Cut-off dates have to be agreed to for internal market rules, with transitional periods. Take the Tata Steel issue. Do EU state aid rules apply or not?

    Brexit is completed when these matters are sorted out.

    Wholly different from these separation issues is the subsequent constructive phase - the negotiation of a preferential regime UK-EU. Here the EU has been crystal clear. No integration without accepting the internal market rules in full. Whether a solution to the conundrum will be found in time, is anyone's guess.

    Meanwhile, the UK has to upgrade its WTO-Status, which at the moment is dormant at 1972 concession levels. Whether this can be achieved by Brexit+1 is doubtful. The UK will also be shorn of all third-country preferential agreements. Renegotiating them in a stand-alone mode is dicey. And the UK has no expertise left.

    Finally, the UK has to develop autonomous agricultural and fisheries policies by Brexit+1.

    Brexit+1 will come far earlier than people think, and the UK will stand woefully unprepared. What is frightening is the current state of denial.

  • 12 July 2016 at 7:59pm
    Peter B Lloyd says:
    If the courts were to decide that the Prime Minister does at present possess the authority to invoke Article 50 of the Lisbon Treaty, surely Parliament has the trump card of being able to pass a new law that explicitly deprives the Prime Minister of that power?

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