Why Brexit May Never Happen, Despite the Referendum

The most significant development in law this past week was the Brexit referendum.

Although technically not legally binding, the political repercussions of trying to do anything but follow the narrow vote means that the U.K. will be attempting to leave the E.U.

The real question is when, and how.

Although the legal implications are vast and uncertain, the Wall Street Journal proclaims that it could be a “boon” for lawyers. Leave it to lawyers to turn the largest demerger in history into business like advice on tax, “antitrust, immigration, intellectual property, trade agreements, employment and other areas of law.”

Many Britons are already experiencing “Bregret” or “Regrexit,” second doubts over their vote to leave, not Googling what the EU was before voting, or kicking themselves for not voting at all.

Not to rub salt in the wound, but The Independent lists 15 areas where EU laws may adversely impact British life:

  1. Free movement of labour
  2. The right to be forgotten
  3. Child benefit for migrant workers
  4. Working time directive
  5. Temporary Agency Workers Directive
  6. Fishing
  7. VAT on energy bills
  8. Renewables directive
  9. EU Climate and Energy Package
  10. Banking regulations
  11. Diabetic motorists
  12. Clean water
  13. Bananas
  14. Vacuum Cleaners
  15. Hair dryers, kettles, toasters

The Centre for European Reform notes that the regions of Britain voting to leave the E.Eu. are those who will suffer the most from the withdrawal of trade deals,

…London and Scotland, the most pro-EU areas of the UK, are less economically integrated with the EU than the UK average.

Meanwhile, outside the prosperous South East, rural counties such as North Yorkshire and Dorset, and more urban ones, like West Yorkshire and Lancashire, are more integrated with the EU, and also tend to be more eurosceptic.

The actual legal mechanism of leaving the E.U. is either through Article 48 or 50 of the Treaty on European Union. The former requires unanimous agreement by Member States, but the matter provides for unilateral withdrawal by any country, subject to a 2-year sunset on any treaties after formal notice is provided.

The sunset clause on treaties does not apply if there are agreements reached prior to the expiration of the 2-year period, or if the European Council and the U.K. agree to extend any negotiations beyond 2 years.

What that means is that E.U. law is still the law of Britain for at least 2 more years, of not longer.

To make it more interesting, Nicola Sturgeon, the First Minister of Scotland, announced today that a Legislative Consent Motion (LCM) may be required before the British Parliament withdraws from the E.U.

LCMs are not explicitly mentioned in the Scotland Act 2012 or the Constitution Reform Act 2005, which preceded it. Instead, they were added to Chapter 9B of the Scottish Parliament’s Standing Orders after a 2005 inquiry.

This reading appears to be overly ambitious, as s. 28(7) of the Scotland Act 2008 states quite clearly that the powers of the Scottish Parliament,

…does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

The real Scottish problem with Brexit is with separatism, with Ireland soon to follow. And right on cue, Quebec separatists have started rattling the sabres, pulling out Supreme Court decisions from over 25 years ago and the Clarity Act, which both require a much higher threshold than the Brexit referendum.

As Canadians can tell our British cousins, a separatist movement in your country can turn national politics on its head. And for that reason Brexit may not happen any time soon, if at all, despite all the hype over this week’s vote.


Comments are closed.