Theresa May has famously stated that ‘Brexit means Brexit’, but what does this actually mean (if anything)? Sionaidh Douglas-Scott examines the legal implications of triggering Article 50. The position of referendums in UK constitutional law is very hazy, and previous UK-EU negotiations on crucial matters have often been shrouded in secrecy. Paradoxically, Brexit may therefore not mean ‘taking back control’, but rather a dominance by the executive for its political purposes.
The consequences of the EU referendum
The EU Referendum result has been momentous, not just in terms of the UK’s relationship with the EU, but also for our understanding of the British Constitution. It is astonishing that there could be so little clarity about such matters as whether an Act of Parliament is necessary to trigger Article 50 TEU, whether there should be another referendum to approve any withdrawal agreement, and whether the devolved nations should have any considerable role in all of this. Can the British Constitution really be fit for purpose if there can be so little certainty over these matters?
However, my focus is on just one aspect of the referendum result: the question of what the referendum itself requires by way of follow up. We have heard that Brexit means Brexit – but what does this mean? What, as a matter of law, does a vote to leave the EU in the referendum require?
The EU Referendum Act 2015, upon which the ballot was based, did not provide for the referendum result to have formal effect. It was an advisory rather than a mandatory referendum. Legally, both the government and parliament could choose to ignore it. However, it has become a truism to add that politically the situation is quite different, and that it would be highly inexpedient to ignore the result.
Yet there are many examples where governments have believed it politically possible to do just that. So for example, in July 2015 the Greek people voted by a roughly 20 per cent majority to reject austerity conditions that would be imposed by EU and other international institutions in return for a large bailout. Notwithstanding, the Greek government agreed soon after to perhaps even tougher measures. In 2008, Irish voters rejected the Lisbon Treaty, but in 2009 a second referendum was held, with 67 per cent of voters instead now backing the treaty.
Leaving EU treaties aside, we may turn to Sweden, which in 1955 held a referendum concerning which side of the road cars should drive on. Although 83 per cent voted to remain driving on the left, the government ignored this vote and later legislated to introduce driving on the right, believing this to be in the interests of the Swedish people. So even politics need not dictate action on referendum results.
However, the government does not seem minded to ignore the referendum result. In a policy paper published February 2016, it was stated that the government is under a ‘democratic duty to give effect to the electorate’s decision.’ This view was presented to Parliament and was not challenged.
But what does ‘giving effect’ to the electorate’s decision mean? Neither the referendum legislation, nor the vote itself, provide any mandate or guidance as to what the UK’s future relationship may be with the EU, or with other states. The electorate voted only to leave the EU. They did not agree to any particular exit agreement.
Some of those who voted Leave may desire a Norwegian style arrangement, which would mean EEA membership involving access to the Single Market, and associated freedom of movement. For other Leave voters, however, terminating freedom is the reason why they voted to Leave. No doubt the Leave campaign’s shift to a focus on immigration in May 2016 did, in the words of Sir Lynton Crosby, ‘pay off’.
A post-referendum poll conducted by Tory Deputy Chairman Lord Ashcroft shows, however, that immigration was only a secondary motivator for leaving the EU. Of the Leavers polled, most voted out because they believed that ‘key decisions about the UK should be taken in the UK’, while 20 per cent did not agree immigration was a force for ill. Such polls are rough tools, and it is very hard indeed to know why voters voted in the way they did. Nonetheless, however important immigration was as a factor, it is unlikely that majority of all those who voted Leave were in favour of reducing immigration from the EU.
If the referendum result is merely advisory in law, and the vote to leave the EU does not provide a mandate for any specific future UK relationship with the EU, what follows from that? Where does that leave the UK government, and statements such as Theresa May’s proclamation that British people have sent a ‘very clear message’ on the need to reduce migration through their vote?
Is there any legal authority for the making of such statements? The argument to this point would suggest not, and that these reflect the political choices of the politicians concerned. However, notably, the Conservative party, made no commitments as to the UK’s future relationship with the EU in the event of a No vote in any EU referendum. So the government (even less so, given the change of Prime Minister and most other members of the Cabinet) has no electoral mandate for any specific policy on future relations with the EU. At the very least there would appear to be a political need for the government to legitimize any agreements it makes with the EU, by way of a general election or further referendum.
Renegotiating a new UK-EU relationship
While the UK remains a member of the EU it may not perform any acts in violation of its EU obligations. This probably includes negotiating trade deals with 3rd countries, which currently fall within EU competence and not that of the UK government. The UK may, however, presumably hold talks that fall short of formal negotiations.
But what, if any, constitutional constraints operate on the UK government once it has triggered Art 50 and is negotiating with the EU? May the government decided to rule out EEA membership? Must it include the devolved nations? Will these negotiations fall under the government’s prerogative powers?
The royal prerogative has recently enjoyed a popular limelight, rather like Art 50 TEU. It comprises those powers once wielded by the monarch when directly involved in government. These powers include making treaties, declaring war, deploying the armed forces, granting pardons, and are now generally exercised by government ministers. Importantly, exercise of the prerogative does not usually require Parliament’s approval.
Once Art 50 TEU is triggered it seems that the UK’s withdrawal negotiations, and framework talks for future EU relations, will be conducted according to the usual practice under the prerogative. This is hardly a transparent process. Parliament has not traditionally had a major (or indeed any notable) role in such foreign and trade negotiations. Both government ministers and unelected and unaccountable officials conduct the negotiations behind closed doors.
The process is opaque and secretive. It has been exceptionally hard for Parliament to access information in advance of negotiations, and virtually impossible for it to play a part in shaping government’s position. For example, in June 2007, at the time of government negotiations in advance of what would become the Lisbon treaty, it proved almost impossible for Parliament to gain information about the government’s negotiating position. Margaret Beckett, then Foreign Secretary stated:
‘One of the conclusions that I have come to is that the less I say about what we might in principle accept and what we might not, the more I preserve the maximum amount of negotiating space to resist anything that I think is not in Britain’s national interest.’
There was a similar lack of information and consultation of both the UK Parliament and the devolved institutions during David Cameron’s 2015/16 negotiations over a ‘New Settlement’ for the UK with Donald Tusk, a fact specifically noted by the House of Lords EU select committee in its report on the EU Referendum and Reform. This does not bode well for communications to the UK Parliament and devolved institutions on any withdrawal agreement.
Of course, Parliament will have to ratify whatever withdrawal agreement is concluded under Art 50. The Brexit agreement will probably be governed by the Constitutional Reform and Governance Act (CRAG) 2010 (which replaces the former Ponsonby rules), although it is possible that the EU Act 2011 might control the matter, in which case a referendum might also be required. Section 20 of CRAG states that if the House of Commons resolves within 21 days that the treaty should not be ratified, then subject to certain exceptions, it would be unlawful to do so. This rule prevents the executive from committing the UK at international level through ratification of a treaty of which Parliament disapproves.
The problem is that if Parliament refuses to ratify a withdrawal treaty with the EU, it will be too late for Parliament to insist on its own conditions. The EU might simply state that, in the event of no agreement being concluded, and Art 50’s 2 year time period expiring, the UK should withdraw with no agreement, a situation hardly likely to favour the UK. A withdrawal agreement is different to an accession treaty or a new treaty (such as the Lisbon treaty) expanding EU powers.
In these latter cases, if under domestic law ratification is not possible (as in the case of a Norwegian No vote to enter the EEC, or the Irish peoples’ first No vote on the Lisbon Treaty) renegotiation often goes ahead (although requires unanimity) but in the meantime the status quo continues. In the case of withdrawal, Art 50 TEU also requires unanimous agreement of other EU states to continue negotiation beyond 2 years, but unlike in the other examples, the status quo does not continue. Instead the treaties cease to apply.
This is why it is vital that Parliament maintains a handle on the process. There is no reason, for example, why EEA membership should be off the table. Neither domestic law nor politics dictates this. However, there is a danger that those negotiating Brexit will dictate its terms, and once Art 50 is triggered, they will have a great deal of discretion under the prerogative to do so.
If the current lawsuit brought against the UK government, requiring an Act of Parliament before Art 50 TEU is triggered, succeeds, then such an Act could set down conditions for negotiating the terms of Britain’s exit. Otherwise, there is no guarantee that Parliament will be kept regularly informed of the negotation progress, nor of the terms sought. This will not mean ‘taking back control’ for Parliament. ‘Brexit means Brexit’ may well mean dominance by the executive of the day, and its political purposes.
Note: A longer version was originally posted on the Democratic Audit blog.
Sionaidh Douglas-Scott is Anniversary Chair in Law and Co-Director at the Centre for Law and Society in a Global Context, Queen Mary School of Law, University of London, and Honorary Research Fellow, Lady Margaret Hall, University of Oxford.