After the vote for Brexit, where next? The constitutional and legal implications are outside our “comfort zone”; however, there is a lot of good analysis out in the blogosphere and we thought it might be worthwhile to provide occasional lists of helpful posts on other sites.
EJIL: Talk!: Brexit: Is everything going to change in law, so that very little would change in fact? Jure Vidmar & Craig Eggett of Maastricht University on the possibility of “three parallel Brexits”.
- Guardian: Brexit won the vote, but for now we remain in the EU: Joshua Rozenberg being his usual cool, calm and analytical self.
- Jack of Kent blog: Five legal points about the Leave victory and Why the Article 50 notification is important.
- Public Law for Everyone: Brexit | Legally and constitutionally, what now? Mark Elliott writing on the morning after the referendum result.
- Public Law for Everyone: Brexit | Can the EU force the UK to trigger the two-year Brexit process? Mark Elliott on the potential stand-off between David Cameron’s desire to delay pressing the button marked ‘Article 50’ and the EU’s wish to begin negotiations as soon as possible.
- Public Law for Everyone: The road to Brexit: 16 things you need to know about the process of leaving the EU: Alan Renwick gives a point-by-point overview of what the road to Brexit will look like.
- UCL Constitution Unit Blog: In the event of a Leave vote Brexit would dominate Westminster for years: former Clerk of the House (and Frank’s former colleague) Lord Lisvane, aka Robert Rogers, explains why.
The Scottish dimension
Section 28 (Acts of the Scottish Parliament) of the Scotland Act 1998, as amended by s 2 of the Scotland Act 2016 [which added subsection (8)], reads as follows:
“(1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.
(2) Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent.
(3) A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Scottish Seal signed with Her Majesty’s own hand signifying Her Assent are recorded in the Register of the Great Seal.
(4) The date of Royal Assent shall be written on the Act of the Scottish Parliament by the Clerk, and shall form part of the Act.
(5) The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.
(6) Every Act of the Scottish Parliament shall be judicially noticed.
(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.
(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
But what, exactly, does “normally” mean? With that in mind, see:
- BBC: Nicola Sturgeon says MSPs at Holyrood could veto Brexit: the First Minister said that “of course” she would ask MSPs to refuse to give their consent to withdrawal: the leader of the Scottish Conservatives, Ruth Davidson MSP, who was strongly in favour of Remain, insisted that the Scottish Parliament did not have the authority to block Brexit even if it were to refuse legislative consent.
- Public Law for Everyone: Brexit | Can Scotland block Brexit? “no”, concludes Mark Elliott, “the UK Parliament is sovereign and can do as it wishes”.
- Scottish Legal News: Scots lawyers on implications of Brexit: thoughts from Andrew Scott, Professor of EU Studies at Edinburgh, Christine O’Neill, chair of Brodies LLP, and Eilidh Wiseman, President of the Law Society of Scotland.
- UCL Constitution Unit Blog: Brexit, devolution and legislative consent: what if the devolution statutes were left unchanged after Brexit? Writing before the result was announced, Professor Sionaidh Douglas-Scott, of QMUL, considers what would happen if, fearing the constitutional crisis that may result, the UK government simply leaves the devolution legislation untouched.
The Northern Ireland dimension
Northern Ireland voted by 56–44 voted to remain in the EU and that has led to calls from Sinn Féin for a referendum on reunification with the Republic.
- Centre on Constitutional Change: Brexit: England’s Opportunity is (Northern) Ireland’s Difficulty: Professor Christine Bell, of Edinburgh University, points out that there is provision for a border poll in s 1 of the Northern Ireland Act 1998 and comments on its political and constitutional implications. If a majority votes for reunification, the UK Parliament is obliged to give effect to that decision: moreover, the Secretary of State must call a border poll “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”.
- Guardian: The English have placed a bomb under the Irish peace process: Fintan O’Toole, assistant editor of The Irish Times, argues that Brexit undermines the Belfast Agreement.
- UCL Constitution Unit Blog: Will Brexit lead to the break up of the UK? Professor Robert Hazell on the general issues, but particularly interesting on Northern Ireland.
Possible implications for the ECHR
- RightsInfo: BREXIT: What Does It Mean For Human Rights? answer: nothing immediately, but it might increase pressure for rejection of the ECHR.
- European Union Referendum Bill: Links to documents and parliamentary debate leading to the European Referendum Act 2015.
- Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU): Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union – Protocols – Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 – Tables of equivalences.
EU and UK Governmental analysis
- House of Commons Library: Brexit: what happens next?: Commons Briefing paper CBP-7632, 24 June 2016. This note looks at the immediate consequences of the vote and some of the longer term implications.
- House of Commons Library: Reading list on UK-EU relations 2013-16: reform, renegotiation, withdrawal: Commons Briefing paper CBP-7220, Commons Briefing paper CBP-7220, 24 June 2016. Selection of books, journal and press articles, think tank, parliamentary and library publications relevant to the UK’s renegotiation of its membership of the European Union. This last update will be followed by a new series of briefings on the consequences of the Brexit vote.
- House of Commons Library: Tax after the EU referendum: Commons Briefing paper CBP-7630, 24 June 2016. This short note discusses the possible implications for the UK tax system of the UK leaving the EU and collates the comment that has been made on this specific aspect of Brexit following the vote on the EU referendum.
- House of Commons Library: Pensions after the EU referendum: Commons Briefing paper CBP-7629, 24 June 2016: This note brings together some initial responses regarding the possible implications for pensions of the UK’s vote to leave the EU
- House of Commons Library: Financial services after the referendum: Commons Briefing paper CBP-7628, 24 June 2016. This note brings together commentary about financial services in the immediate aftermath of the UK referendum result to leave the EU.
- House of Commons Library: Fixed-term Parliaments Act 2011: 24 June 2016. Commons Briefing paper SN06111. The Fixed-term Parliaments Act 2011 creates a five-year period between general elections. Early elections may only be held in specified circumstances.
- House of Commons Library: EU Referendum: the process of leaving the EU: 8 April 2016. Commons Briefing paper CBP-7551, written before the Referendum took place, looks at some of the issues likely to arise for the UK during a withdrawal process and afterwards.
- House of Commons Library: Leadership Elections: Conservative Party: Commons Briefing Paper SN01366, 27 June 2016. Sets out the current rules, and the background to their introduction. Also details of the previous elections held under the current rules and brief details of the pre-1998 rules
- European Parliament: Article 50 TEU: Withdrawal of a Member State from the EU: Briefing Note produced by the European Parliament in February 2016.
- Brexit Basics 2: update 2nd July. This week’s developments and legal opinions.
Frank Cranmer and David Pocklington