The immediate response in the UK to the referendum result was political chaos and an implosion of effective government and opposition. However, after the earthquake, a new government was quickly formed under Prime Minster Theresa May and a quieter period lies ahead while parliament and the country starts the process of understanding what has taken place, what has stood firm and what needs to be done to rebuild relationships within a re-constructed European settlement.
How the situation will play out is a matter of politics more than law. The EU treaties set out a mechanism (known as Article 50 of the Treaty of the European Union (also known as The Lisbon Treaty) whereby a Member State can indicate its intention to leave and, following that, there must be a negotiation of exit arrangements and the terms of a future relationship (see further below). It is for the British government to invoke this article and, until that is done and exit arrangements are finalised, the UK remains a full member of the EU with all concomitant rights and obligations and subject to the jurisdiction of the Court of Justice of the European Union. The European Communities Act 1972, which gives domestic legal effect to the UK’s membership of the EU, including giving EU law precedence over UK law in the UK courts, remains in force. Significantly, the UK will have to continue to implement in full all EU law with no ability to cherry pick.
Article 50 provides that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”
In theory the outcome of the referendum does not bind the government. Having regard to the political climate, however, the resignation announcement on 24 June of David Cameron as Prime Minister and the statements of the incoming Prime Minister, it seems clear that the UK will serve notice to leave the EU. Mr Cameron said:
“The will of the British people is an instruction that must be delivered“.
Article 50 requires a departing Member State to serve notice on the European Council of its intention to exit the Union and then the Union shall negotiate a withdrawal agreement with the departing Member State (the “Withdrawal Agreement”) and a new relationship.
Assuming the UK government does then serve notice on the European Council, the treaties of the European Union will cease to be applicable to the UK from the date of the Withdrawal Agreement or, failing that, within two years of the notification unless we and the Council both agree to extend this period.
What is likely to be covered by the Withdrawal Agreement?
The scope of the Withdrawal Agreement can be as broad or as narrow as the negotiators choose. Some argue that it should be narrow and cover the mechanics of withdrawal and any transition period only, leaving the terms of our future relationship with the EU to be the subject of a separate agreement. Others argue that the Withdrawal Agreement could be much broader because of the words “taking account of the framework for [our] future relationship with the Union”. There are different possible models for the UK’s future relationship with the EU (please see ‘Possible post-Brexit models for engaging with the EU’). However, should the UK seek to re-join the EU, it would be subject to the same conditions as any other applicant country and, notably, would have lost its hard-negotiated carve outs from matters such as monetary union.
Note that, whatever the terms of the Withdrawal Agreement, it will have to be compatible with the EU Treaties so it will be subject to adjudication by the European Court of Justice.
The UK government in its report “The process from withdrawing from the European Union” looked at the key issues that would need to be addressed by the withdrawal agreement and the list of issues includes the following:
(i) unspent EU funds due to UK regions and farmers;
(ii) cross-border security arrangements, including access to EU databases;
(iii) co-operation on foreign policy, including sanctions;
(iv) transfer of regulatory responsibilities;
(v) arrangements for contracts drawn up in accordance with EU law;