COMMENT On June 23, 2016 the UK voted in a historic referendum on whether to remain in or leave the European Union (EU). Both campaigns had been fought long and hard; amidst many controversies. Questionable political tactics which at times amounted to misrepresentation; scaremongering; blatant lies and bullying of voters led to these campaigns being dubbed ‘Campaign Fear’ and ‘Campaign Hate’ for the Remain and Leave camps respectively.
The referendum results
Of an electorate of 46,501,241, there was a good overall turnout of 72.2 percent; despite parts of the country experiencing bad weather and floods (London in particular). The overall result, as we know, was that the UK voted to leave the EU. Leave won by 51.9 percent (17,410,742 votes) compared to remain which obtained 48.1 percent (16,141,241 votes).
Leave won the majority of votes in England and Wales, while every council in Scotland saw Remain majorities (62 percent voted to remain). Northern Ireland also voted to remain in the EU with 56 percent of votes.
Whither representative parliamentary democracy?
What is the meaning of a true representative parliamentary democracy? The people are consulted on the big decisions; and their opinions matter. They eventually get to decide. This is surely a good thing; for it respects the will of the people; who in turn give the politicians their legitimacy and mandate to rule.
However, when one closely examines the breakdown of the votes within the four nations that make up the UK (England, Wales, Scotland and Northern Ireland), one begins to seriously doubt the extent of this democratic process. Whilst one would concede that the majority (almost 52 percent) voted to leave; this is by no means a huge majority compared to the 48.1 percent who wished to remain.
In fact, the enormously worrying fact is that this is a questionably narrow majority, which threatens the real core and essence of the democracy.
Within England, too, one can see many disparities in the results. In the City of London, for instance, 75.3 percent voted to remain and 24.7 percent voted to leave. Furthermore, Scotland has voted with an overwhelming 62 percent to remain; whilst in Northern Ireland 56 percent wished to remain. However these countries are now trapped in a larger Union, namely the UK; which wishes to leave the EU. Where then are the lofty ideals of democracy? Withered, presumably.
Representative democracy and self-government
One can surely ask - on such an enormous decision with manifold repercussions, is this narrow majority, then, a sufficient mandate to exit the EU? To guillotine four decades of membership, with all the rights and liabilities arising therefrom? Just like that in one fell sweep? Is the satisfaction of popular preferences to be the main foundation for lawmaking? For monumental economical, social, political, financial, and monetary changes resulting from that decision?
Or ought there to have been some form of checks and balances and not merely a simple majority to validate the legitimacy of a Brexit result? Representative democracy and self government are both admirable goals; surely. However; they are goals that require adequate checks and balances so that one side does not win due to a faulty goal post or absent referee.
The UK - a nation fractured and divided
The United Kingdom is far from united at present as a result of the above referendum. In Scotland, Nicola Sturgeon, leader of the Scottish Nationalist Party (SNP), has said that Scotland may not be bound by this referendum result. Scotland may call for another referendum soon, seeking independence from the UK. It seems like only yesterday that Scotland had its referendum on independence in 2014.
A weary sense of déjà vu pervades for the UK government - when will these demands and threats of referenda ever stop? Northern Ireland may soon follow suit with its own demands, too. How tired the UK must be of hearing this word ‘referendum’ bandied about so easily like this.
And yet - can we really blame the Scots and the Northern Irish? What’s sauce for the goose is sauce for the gander too, isn’t it. Every nation thirsts for its own sovereignty and right to make decisions for itself without undue interference from others.
Does the Scottish parliament have a veto over Brexit?
Through the process of devolution, Scotland was granted its own parliament in the Scotland Act 1998; with important changes recently in the Scotland Act 2016.The question thus arises whether the Scottish parliament may seek to exercise a veto over the implementation of Brexit.
This is based upon a legal argument which has its foundation in Section 29 of the Scotland Act 1998, which empowers the Scottish Parliament to legislate in the devolved areas for which it is responsible - while obliging it to take care that nothing it does is “incompatible with EU law”.
What this means is that EU law has binding force in Scotland and in devolved areas, and is enacted and implemented by the Scottish parliament and not Westminster. So perhaps the Scots could argue that the consent of the Scottish Parliament would be required if it was suggested that the UK’s relationship with the EU (in legislation and other areas) might be altered.
Furthermore, to lend more weight to this argument, Section 2 of the recent Scotland Act 2016 has codified the Sewel Convention ; which strengthens the Scottish cause further. This section states that the Westminster parliament should not interfere in devolved areas without the consent of Holyrood (the Scottish parliament). Such agreement is usually given in the form of a legislative consent motion (LCM) at Holyrood.
So it seems, thus far, that a legislative consent motion may be withheld. But things are somehow never that clear with the murky waters of the devolution process. If one closely examines the Scotland Act 1998; it specifies the matters which are reserved to Westminster, then goes on to proclaim that everything else is devolved.
Schedule V to the Act goes on to list the Reserved Areas, and at sub clause 7, it is noted that “international relations, including relations with territories outside the UK, the European Union and other international organisations are reserved matters”. In simple language, what this means is that it is within the domain and power of the Westminster Parliament to do what it wants to do.
The nail on the coffin for Scotland is of course Section 28 of the Scotland Act 1998, which says: “Section 28(7): this section does not affect the power of the parliament of the United Kingdom to make laws for Scotland”.
Thus it may be concluded that at the end of the day the UK Westminster parliament still retains legislative supremacy over Scotland. Basically, from a strictly legalistic standpoint, and in layman’s language - it can do what it wants.
The legal effect of the referendum and the sovereignty of the UK parliament
It may be surprising to many that from a legal standpoint, the Brexit vote has actually no binding force. Geoffrey Robertson, QC and expert on the matter opined that the result of the referendum has no legal effect on the UK Parliament, which remains sovereign. What this means is that the outcome of the referendum is only purely advisory and not legally binding. Parliament could, if it chose to do so, ignore it.
The UK became a member and was bound by the EU as a result of the European Communities Act 1972 (ECA 1972), and legislation must now be passed by the UK Parliament itself to repeal it. That means MPs must now pass a new Bill to leave the European Union. Unless and until this happens, the ECA 1972 remains valid law and in the statute book.
Furthermore, under the recent European Union Act 2011, a change to the Treaty on European Union, agreed between member states, requires approval both by referendum and by Act of Parliament.
Legal theory versus political reality
The UK parliament hence remains supreme. So from a strictly legalistic perspective can the British pretend that Brexit never actually happened ? From a purely theoretical perspective, perhaps they could, but as Lord Denning famously stated in Blackburn v AG (1971): “ legal theory does not always march alongside practical politics”. In other words, political reality is more important than legal theory in some situations.
This is certainly true in this case; where ignoring the referendum result will be next to impossible. So what happens next ?
Article 50 of the Lisbon Treaty and the process of withdrawal from the EU
In order for the withdrawal process to begin, Article 50 (1) of the Lisbon Treaty (2009)(Treaty on the Functioning of the European Union (TFEU)) must be invoked. This provision, which unfortunately hardly received any real discussion before the referendum, provides that an EU country may voluntarily leave the union.
The wording itself is somewhat vague, as if the framers never actually contemplated that such a situation would ever arise. It requires the decision to exit to be made according to the UK’s own “constitutional requirements”. Therefore what counts as a decision to leave, and a triggering of the withdrawal mechanism, is actually an issue of domestic constitutional law in the UK.
So far, no member state has exited the EU. The UK will be the first to do so. Much, then, is unchartered territory and there is no precedent set for invocation of Article 50. In the UK, the process may likely begin with a repeal in Parliament of the European Communities Act 1972.
Article 50 (2) states that a leaver should notify the European Council of its intention, negotiate a deal on its withdrawal and establish legal grounds for a future relationship with the EU. On the European side, the agreement needs a qualified majority of member states and consent of the European Parliament.
Article 50 (3) then goes on to give negotiators two years from the date of article 50 notification to conclude new arrangements. Failure to do so results in the exiting state falling out of the EU with no new provisions in place, unless every one of the remaining EU states agrees to extend the negotiations.
Reaction from the EU - the UK cannot have its cake and eat it, too
Although it was accepted that the UK needed time to adjust, nevertheless the EU has said that it should not be a “long time”. There were statements to the effect that Britain needs to “go quickly”; and that “you are either in or out” and that Britain cannot expect to get any kind of special treatment. Negotiating a deal post exit is not as easy as the Leave Camp made out, then. EU leaders have made it clear that the UK cannot have an “a la carte single market”.
Reaction in the UK - parties, politics, and a leadership crisis
Meanwhile, UK Prime Minister David Cameron has indicated that he will leave the timing of invocation of Article 50 to his successor. The day after the referendum result, he stated that he would be stepping down as PM in October this year. Who exactly will succeed him is not clear at present.
Theresa May and Boris Johnson have just announced their candidacies to run for leadership of the Conservative Party; whilst Labour struggles to rid itself of Corbyn, who astonishingly refuses to resign despite a vote of no confidence from many MPs within his own Labour Party.
As for Nigel Farage from the UKIP; he has dug his own grave further by his recent disgraceful behaviour at the European Parliament two days ago, on Tuesday June 28, where he told Members of the European Parliament (MEPs) that they were “in denial” about Brexit and that they had “never had a proper job before”.
His breathtakingly rude speech infuriated many, and was unsurprisingly met with an emotional and frustrated reply from the European Commission President Jean-Claude Juncker on Tuesday June 28 who asked him “not to come back”. What a dramatic show of heated exchanges, temperatures and theatrics!
The future
With the current climate of uncertainty and confusion in the UK, the public is desperate for firm, steady, reliable and credible leadership. Both the Conservative and Labour parties; and individuals in those parties have emerged bloodied and bruised from their campaigns. Like the nation, they are fractured and divided, too.
Only time will reveal which leader will have the unenviable task of triggering Article 50 and the exit process. The task of unifying their parties; the country and negotiating the best deal for Britain will not be easy.
What’s done is done and cannot be undone
The reactions of voters post referendum were diverse. Some were ecstatic at the Leave result; and felt that the UK had reclaimed its sovereignty; the right to regulate its own internal affairs and legislate for itself without the undue interference of the EU. Perhaps most importantly, many felt that immigration and freedom of movement would be curtailed; that the economy would not be adversely affected; and that free trade and closed borders could indeed coexist easily.
Others were devastated and shocked, as they had expected Remain to win. Would the Freedom of Movement of Goods; Services; Persons; and Capital within the EU (amongst other innumerable benefits), now be a thing of the past ? Reality sunk in slowly. Others expressed their dismay and concern, claiming that they had been merely protesting against the misrepresentations and lies of the various campaigns, and that if they had their vote back, they would have voted Remain.
The House of Commons website apparently crashed with the unprecedented voluminous demands of a petition to have a second referendum on the matter.
Well, it is far too late for doubts and regrets now. As Lady Macbeth said in ‘Macbeth’ after the deed was done, “Things without all remedy; should be without regard, what’s done is done.”
After 43 years of marriage and membership of the European Union; the people of the UK have decided to leave it. We now await the invocation of Article 50 in a separation and divorce that looks likely to be a slow, messy and painful process for all parties involved.
MEERA BADMANABAN is a senior lecturer in Constitutional Law at a private college.
