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Jean-Yves Gilg

Editor, Solicitors Journal

Political rhetoric v Legal fallout

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Political rhetoric v Legal fallout

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Those who thought a 'leave' vote would secure immediate departure from the EU have been sorely misled, advises Chris Pawlowska

Those who thought a 'leave' vote would secure immediate departure from the EU have been sorely misled, advises Chris Pawlowska

The UK has voted to leave the EU. As the dust struggles to settle on one of the most cataclysmic political decisions in living memory, one has to wonder - while picking through the political mire of exaggerations, half-truths, and uncertainties - what this means, in legal terms, for the future of this country.

First, as should now be obvious, the referendum result does not automatically take
us out of the EU. As a matter of law, the result does not bind
our leaders as parliament is sovereign. Politically, the now former prime minister, David Cameron, made clear the
need to respect the vote, but parliament is legally entitled
to ignore the vote or 'row back' from the consequences
of Brexit if overwhelming,
negative economic and political consequences continue to
come to light. However, this seems unlikely.

Under the Treaty of European Union (TEU), the activation
of withdrawal from the EU is achieved by engaging article 50. This allows any member state
to decide to leave the EU in accordance with its own constitutional requirements.
This issue has become contentious of late.

Mishcon de Reya has agreed to challenge activation of article 50 if the new prime minister, Theresa May, seeks to trigger it without
a full debate and vote by parliament. Given accepted arguments about the sovereignty of parliament, this challenge has some mileage and the potential to torpedo the referendum result.

There are concerns that activating article 50 would inevitably lead to an effective repeal of the European Communities Act 1972 without
a parliamentary vote. Equally, article 50 might simply be the beginning of the negotiation process which parliament would ultimately have to vote on.
This might be a moment when political will is stronger than legal argument. However it is to be done, the UK would have to formally notify the European Council for the process to begin. The detail is then a little woolly.

The Union would negotiate
an agreement for withdrawal on the basis of guidelines provided by the Council. However,
the negotiations would be conducted under article 218(3)
of the Treaty on the Functioning of the European Union (TFEU). This envisages that the European Commission would be the main player in the negotiations by supplying recommendations for consideration. Finally, in both article 218(3) TFEU and article 50 TEU, it is the Council who would decide the terms of the UK's final departure from the EU with the consent of the European Parliament.

This machinery raises a number of concerns. The long-stop negotiating period is two years from the time the UK activates the process. That gives the UK room to begin negotiations when it is ready. Given the political disarray in domestic politics,
and the need to prepare for
these negotiations, it is to the UK's advantage to defer this process for as long as EU political pressure will allow.

Once formal notification is given, the timer is started and the UK loses some control. Hard negotiations which run over the two-year period could result in our departure from the EU without a completed agreement. In addition, hostile states that might want to make an example of the UK could block an extension on the negotiating period as an extension requires unanimity.

To make matters worse, the Commission and the Council
are squaring up for a battle
over which body will lead the negotiations, as the legislation
is not clear. The Commission's president, Jean-Claude Juncker,
a committed federalist, is facing numerous calls to resign in the aftermath of Brexit and may have a worrying agenda towards the UK if he is determined to stem any further European revolt.

However, article 50 requires the final decision on the UK's withdrawal agreement to be made by a qualified majority of the Council. This is a type of stacked, double majority mechanism contained in article 238(3) TFEU. It requires that a decision is carried by 55 per cent of the existing member states, representing 65 per cent of the total population. A blocking minority must represent
more than 35 per cent of the population. Therefore, any withdrawal agreement could not be blocked by a single country hostile to the UK. Even a large country in combination with several smaller countries is unlikely to secure a block.

In the months that lie ahead, one thing is certain. Anyone
who thought a 'leave' vote would secure immediate departure from the EU was sorely misled. The UK's 'divorce' from the EU, will, like most divorces, be lengthier than anyone thought and bring out the worst on both sides before it lapses into calm civility.

Whether we have a specially crafted agreement or a European free trade agreement with bolt-ons, it is clear that continued access to the single market will come at a price.
Belief that EU migration would be halted was always delusional and a significant financial contribution will be exacted from us. Unfortunately, it is
likely to come without a corresponding right to participate in the EU's future voting processes.

Chris Pawlowska is a solicitor and a senior lecturer at the School of Law, the University of Greenwich @UniofGreenwich www.gre.ac.uk

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