Quite a lot has been written about the recent vote by U.K. citizens concerning the U.K’s membership in the European Union, which passed 51.9% (for Leave) to 48.1% (for Remain). But there remains much uncertainty of what that means for the future which has led to much market instability and a lot of speculation of what might happen. This diary is an effort to clarify the situation so we are all better informed. The U.K.’s membership in the EU is governed by the 1972 European Communities Act, which was enacted by Parliament and authorized the U.K.’s joining of what was then known as the Common Market. The government at the time was led by Edward Heath, a Conservative PM, but he did not have the unified support of his party and, with a thin majority, could not get it enacted on a strict party line vote. Ostensibly, the Labour Party, led by Harold Wilson, was opposed, but Labour was also not unified, and a pro-Europe Labour faction, led by former Chancellor of the Exchequer Roy Jenkins, joined forces with Heath and got it through with a majority. The U.K. thus joined the Common Market thereafter, and it then morphed into (first) the European Commission and (then) the European Union through a series of treaties ratified by the U.K.
After joining what eventually turned into the EU, Heath’s government lost an election to Labour, and Wilson’s government then held a referendum in 1975 somewhat like the one that was just held to settle the still-raging dispute within the Labour Party about the value of membership. The Remain position prevailed then, but importantly, if it hadn’t and the U.K. voters had rejected membership at the time, Wilson would still have been required by law to move a Repeal bill through Parliament of the European Communities Act. And it is far from clear that he would have been able to do so. The reason for this is that the U.K.’s unwritten constitution, which consists of history, precedent, customs and traditions as well as what they refer to as “constitutional conventions,” does not allow, much less require, the use of binding referendums as an instrument of policy-making. The most important legal precedent in the U.K. is that policies must be approved by the “Queen in Parliament,” which is sovereign. And that includes both the House of Commons (who has primary power) and the House of Lords, whose power was later proscribed by a series of Acts (mostly pre-WWI) that have effectively rendered it into an amending and delaying body. It then must be approved by the Sovereign, who routinely does so.
The only way referendums can have legal force is if their enabling Acts, i.e., the law setting up the referendum, which also have to be enacted by Parliament, contain provisions giving the referendum extra force of law. The Tory government enacted the Act calling for Thursday’s referendum several months ago, but importantly, the enabling Act did not contain any provisions making Thursday’s referendum in any way binding. Thus, it is just like the 1975 referendum — purely advisory in law.
In some countries in the U.K. Commonwealth, referendums are allowed and do have binding force — in Australia, for example, a referendum must be passed in each of the 6 states (which, if applied to Thursday’s vote, would not have passed because both Scotland and Northern Ireland voted Remain). In other countries, a super-majority is required (e.g., 2/3rds; not a bare majority). In the U.S. some states have advisory referendums and some have binding ones, but there are often similar safeguards. In the U.K., there is nothing in the “constitution” that makes a referendum binding at all.
Consequently, before full legal notice can be given by the U.K. pursuant to Article 50 of the EU Treaty governing proposed withdrawal of a member State, the European Communities Act must be repealed (or amended substantially). That is, the full Parliament must approve it — the treaty requires all local Member State constitutional provisions to be followed. Current PM David Cameron has said that the result of the referendum has to be respected, but importantly, he has also said that he isn’t going to continue to be the PM that gets it enacted. That means that for the next few months, nothing formal is going to happen. If Boris Johnson, or another elected Tory PM, wishes to push for it, s/he will have to introduce a Repeal bill after the Conservative Party conference in October. And, like in 1975, it is by no means a certainty that it will be successfully enacted.
First, there are many many MP’s who oppose Brexit, from all parties. The Tories currently have a 12-seat majority which, theoretically, means that all the Remain forces need would be to convince 7+ Tories to vote with the (united opposition) to vote it down. The Lib Dems and the SNP are united in their opposition. Labour is ostensibly opposed, but one of the reasons for the turmoil in their leadership is that there are some that think Jeremy Corbyn is only mildly opposed due to some of his actions during the referendum campaign. And, because there are likely to be at least some Labour MP’s that are pro-Brexit, it is, at least, unclear how a Commons vote would go if and when a bill is presented. In fact, it is at least as unclear as it would have been in 1975.
Then, if it did in fact get enacted, the House of Lords would be the next step. Many Tory Lords are already opposed — Lord Heseltine has already pledged to oppose it. Although the Lords couldn’t stop it, they could delay it (for up to two years) and/or attach amendments which some could consider to be “poison pills.”
There has been some speculation that Boris Johnson (or the new PM) could call a “snap election” to seek a new mandate from the electorate for Brexit, which would effectively be a do-over for the referendum; albeit in the form of a fresh general election. There are some problems with this. First, in the recent coalition government, Parliament enacted the “Fixed Terms Parliament Act,” which mandates that all Parliaments will now last 5 years. There are two exceptions: (1) that can be over-ridden by a 2/3rd’s vote of the Commons which would effectively dissolve the Parliament and mandate a new general election; or (2) the government can be brought down by a “traditional” loss of a vote of confidence. Thus, the new PM cannot dictate a new election, s/he would have to get the approval of Labour to get the necessary 2/3rd’s. They might agree, if they thought a new general election would turn out favorably, but they might not. Alternatively, 7+ Tory Remain MP’s could join with a united opposition to force a new general election if BoJo didn’t want one.
In any event, there are quite a few more legal and parliamentary hurdles to jump before Article 50 could ever be triggered — the uncertainty surrounding Brexit will certainly last for months and maybe even for years. Don’t be fooled by Leave MP’s statements about how the referendum must be honored or by summaries by U.S. media that don’t really know what’s going on. The referendum vote merely triggered a political brouhaha that will continue for quite some time until it is resolved decisively one way or the other. And that resolution is a long way away and will probably be the subject of one or more general elections in which the U.K. electorate. Remember that throughout the history of the EU, there have been 5 Member State referendums that presumably rejected some part of the EU’s status — and each and every time that has happened, the Member State had a new referendum or an intervening general election that has reversed the earlier negative referendum. That is probably what will happen here too — it just may take awhile.