Brexit: Now as clear as mud

(Cross post from the Irish Politics Forum)


So the United Kingdom has voted to leave the European Union. After much wailing and gnashing of teeth, the EU will see to remove any vestiges of the United Kingdom with as much haste as a fractious domestic separation.Well no, it’s not going to be that simple.

First, the United Kingdom does not have a written constitution like Ireland. When we make a decision we vote on a proposal to amend the constitution which has legal weight set out in both the constitution itself and supporting legislation, namely the referendum act. When we make a decision it is binding. If the powers that be don’t like it. They must ask us to vote again almost like Mrs. Doyle in Father Ted, did we really, really, really mean to vote that way and can you vote again? Ah go on, go on go on… etc. Whereas a referendum in the UK has all the legal weight of a buzzfeed poll albeit a very expensive nationally structured poll. Referendums in the UK are a sentiment exercise. The fact that they are not presented with a proposal to amend any form of a written constitution means that there will be political weight behind the  resulting decision but it is only a guide. The UK constitution is more of a book of traditions and hence there is an ability to have a constitutional crisis in the UK as it means that the rule book has gone out the window due to events.

Second, and as highlighted in a House of Lords Report, devolution has thrown the cat amongst the pigeons. The report from the House of Lords European Union Committee “The Process of Withdrawing from the European Community” which was published on the 4th May 2016 argues that it would be necessary for each devolved legislature (Wales, Scotland and Northern Ireland) to give legislative consent to amending the founding legislation, for example the Scotland Act, to remove references to European Union Membership. This is stated on page 19 of the report:

The role of the devolved legislatures in implementing the withdrawal agreement

70. We asked Sir David whether he thought the Scottish Parliament would have to give its consent to measures extinguishing the application of EU law in Scotland. He noted that such measures would entail amendment of section 29 of the Scotland Act 1998, which binds the Scottish Parliament to act in a manner compatible with EU law, and he therefore believed that the Scottish Parliament’s consent would be required.83 He could envisage certain political advantages being drawn from not giving consent.84

71. We note that the European Communities Act is also entrenched in the devolution settlements of Wales and Northern Ireland. Though we have taken no evidence on this specific point, we have no reason to believe that the requirement for legislative consent for its repeal would not apply to all the devolved nations.

Considering the split in the vote between Remain and Leave between Wales, Scotland, Northern Ireland and England this could create a legally complex and politically interesting impediment to a straightforward exercise of the Article 50 procedures to leave the EU.

So if you thought it was a process of vote, negotiate and leave, then think again!