Squeezing the Trigger with Your Eyes Shut

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Well. What can I say? It has most certainly been a busy few weeks for the British political system.

Just in case you have been on the moon for the last month, I will briefly go over the main events.

On 23rd June, the UK electorate was given the opportunity to vote on a referendum to decide if the United Kingdom should remain as a member of the EU or if it should leave.

24th June and the results came in. With 72% of those eligible voting, the result was 51.9% to leave and 48.1% to remain. That’s a narrow majority, but a majority all the same.

Still on the 24th June, the UK Conservative prime minister, David Cameron announced that he would resign.

What followed then all happened pretty quickly. Despite David Cameron indicating that a new leader of the Conservative party would be in place in time for the next party conference (2nd to 5th October, if you’re interested), things progressed a lot faster than that. Long story short, Boris Johnson was the favourite, but decided he didn’t want the job of new PM. Theresa May put herself forward and she is now the prime minister and has appointed Boris as the Foreign Secretary as well as making various other cabinet changes.

‘Larry’, the Downing Street resident feline and possibly the only occupant of number 10 I have much sympathy with, must be thinking his world has been turned upside down.

Now that the dust has settled (it hasn’t really, but it’s going to be a long wait before it does so I will just carry on). The big question is ‘What happens next?’ The world has changed far too much since 1975 for the country to consider going back to how things were before the last European referendum in the UK.

In simple terms, the EU was a ‘common market’ where goods and services could be traded amongst member countries with almost the same ease as if they were trading within the same country. That really is putting it in simple terms because the bureaucracy and red tape to back this up is huge. So, therefore, untangling it isn’t going to be a simple process. Lucky then that there is a thing known as ‘Article 50 of the Lisbon Treaty’ drawn up in 2009 for just such an occurrence. It’s never been tested before and it doesn’t make easy reading, but here we go…

The first point in the treaty is as follows:

“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

Simple enough – we’ve had a referendum and decided to leave. Erm, actually it’s not simple and no one really knows how complicated it’s going to be.

Firstly, the European Union has to be formally notified that the UK is invoking Article 50 of the Lisbon treaty. This is a job for the prime minister. And we now have a PM who is an advocate of leaving the EU so this should be simple right? Erm, I wish I could say it is – but it isn’t.

The prime minister cannot invoke article 50 without parliamentary approval and there is no guarantee that this will happen; though to not approve it would go against the referendum, and politicians are supposed to act on the will of the people so let’s assume that this part goes through. There is also the small matter of Royal prerogative, but let’s assume the Queen doesn’t go against a referendum and a parliamentary decision. The new prime minister can control when to invoke Article 50 and my guess is that Mrs May will leave herself as much time as possible to carry out negotiations first.  There is nothing in our constitution that specifies a time between the referendum and actually triggering Article 50. In fact, there is nothing in law to stop the government taking ten years to do so. It is a mind bogglingly complex issue. I have heard it compared to a messy divorce: with a divorce you get up, leave and then have a legal battle. I think the decision to leave the EU means that you have the mother of all legal battles before you even get to open the door.

It’s started already. Phillip Kolvin QC coordinated a letter to David Cameron (it was dated the 9th July 2016 and David Cameron was the prime minister at the time – I am hoping Theresa May doesn’t just forward his mail to wherever) from over 1000 UK lawyers to suggest that the referendum alone was not enough to legally bind the UK to leaving the EU. The full letter was published in The Independent newspaper. I won’t go into the whole thing but will use it as reference. 2nd and 3rd paragraphs are interesting:

“The result of the referendum must be acknowledged. Our legal opinion is that the referendum is advisory.

The European Referendum Act does not make it legally binding. We believe that in order to trigger Article 50, there must first be primary legislation. It is of the utmost importance that the legislative process is informed by an objective understanding as to the benefits, costs and risks of triggering Article 50.

Notice the words “Opinion “and “Believe”. Though the upmost respect must be given to a group of 1054 lawyers (they are right in stating that a referendum isn’t legally binding, but under the basic principles of democracy, it can’t be ignored), when it comes to legal matters, opinion and belief do not constitute actual law. The next paragraph could be the tin opener on a can of worms:

“The reasons for this include the following: There is evidence that the referendum result was influenced by misrepresentations of facts and promises that could not be delivered.

Since the result was only narrowly in favour of Brexit, it cannot be discounted that the misrepresentations and promises were a decisive or contributory factor in the result.”

Well, okay I ‘believe’ you on that point, but I think any QC is going to have a very hard time proving it, and even if they did, the precedent it would set would have massive ramifications. What is and what isn’t ‘misrepresenting’ would be a very complex legal issue. There is a ‘Misrepresentation of the People Act’, but I don’t think it has had much success.

There is something poignant that is a fact within the letter:

“The referendum did not concern the negotiating position of the UK following the triggering of Article 50, nor the possibility that no agreement could be reached within the stipulated two year period for negotiation, nor the emerging reality that the Article 50 negotiations will concern only the manner of exit from the EU and not future economic relationships.”

This is true… kind of. The result of the referendum does not constitute a notification to the EU that the UK intends to leave (though you can certainly take it as read that the EU now knows that the UK intends to leave). The two-year-clock is not ticking yet and it won’t start until a complex set of parliamentary procedures have taken place. This, as I stated before, could take years and years.

There has been much talk of a second referendum, over four million people have signed a petition requesting such; however, this petition also calls upon “HM Government to implement a rule that if the remain or leave vote is less than 60% based on a turnout of less than 75%, there should be another referendum.” Well, that’s something that could apply to future referendums (I can see polling stations needing extra staff), but it doesn’t help in the present case.

Currently, we have a prime minister who is now in favour of leaving the EU. There is a chance that we could have a change of government before she triggers Article 50 and that it could decide not to act on the referendum results and for the UK to stay in the EU. It’s possible, but I think it would make a mockery of the whole principle of referendums.

The vote was close, but the fact remains that the majority voted to leave – democracy is based on majority decisions. It was a very narrow margin and whatever the decision made (and whenever it is made) there will be close to half the UK electorate who won’t be happy with it.

This isn’t going to be resolved anytime soon. Whether leave or remain, the legal complexities that could have an impact on UK and EU law going forward are spectacular.

In 1995, Quebec had a referendum, asking state voters if they should remain within Canada or declare national sovereignty. The turnout was higher than the UK’s referendum (at over 93%) and though they voted to remain part of Canada, the margin was closer (50.58% to stay, 49.42% to become a sovereign nation). The debate went on for years, with each side making claims of misrepresentation and financial misconduct against the other. In the end, some concessions were made to Quebec and the issue was referred to the Supreme Court of Canada, which stated that the unilateral secession contemplated in the referendum was illegal.

In one of my previous articles, I touched on the danger of taking too much notice of predictions – and who could have predicted the events of the last couple of weeks! Nonetheless, I strongly suspect there will be some legal firms in Canada dusting off the law books, possibly bringing a few people out of retirement and most definitely booking tickets to London.

Thorin Seex

Global Seven News

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