EU Referendum: Splitsville? (Updated)

24 June 2016

Britain has voted to leave the European Union, and statements by Deputy First Minister Martin McGuiness and First Minister Nicola Sturgeon already suggest that the future of the political union in the UK is under threat as a “constitutional crisis” looms.

It is clear that the consequences of untangling 43 years of membership will result in unprecedented uncertainty for Westminster, Whitehall, and the UK constitution. As civil servants grapple with what was predicted to be the “biggest bureaucratic upheaval for a generation”, DeHavilland outlines the constitutional implications of EU Exit.   

The withdrawal process

On the steps of Downing Street this morning, Prime Minister David Cameron confirmed that he would not be the one to activate Article 50 of the Lisbon Treaty, so the UK would technically remain a member under his premiership.

Mr Cameron had previously stated his intention to do so in the event of Brexit, thus beginning the formal and legal withdrawal from the EU. But his decision to prioritise political and economic stability until he stands down in time for Tory Party conference in October, will see negotiations led by the new Prime Minister.

However, European Parliament President Martin Schulz has confirmed that EU lawyers are exploring the possibility of speeding up the process of triggering Article 50 to address uncertainty created by the result, leading to suggestions that Mr Cameron’s Tory Party Conference deadline might not be soon enough.

“We have to take note of this unilateral declaration that they want to wait until October, but that must not be the last word”, Mr Schulz said.

In the interim, European Council President Donald Tusk has confirmed that there will be not be a “legal vacuum”, as EU Directives, regulations and law will continue to apply to the UK. However, Interim Health suggested that the Government could push through legislation to essentially “freeze” the existing body of statute, so that no laws will change without the consent of the UK Parliament. Such measures are designed to provide certainty around EU regulation that has legal authority, without passing it automatically into UK law.

Whoever captains the ship during the negotiating process, the two-year window can be extended by agreement between the European Council and the UK, but if no agreement is reached after the 24-month period, the UK would automatically revert to World Trade Organization (WTO) trade rules.

The stages of negotiation, as Alan Renwick of the Constitutional Unit has advised, would first focus on the terms of withdrawal, then move to negotiating a trade deal with the EU and, finally, conclude with a negotiation with the WTO.

However, political uncertainty will inevitably result in complications. Chief among these concerns are the capacity of the Civil Service to handle such an administrative and legislative challenge. The FT reports on a potential major skills gap in Whitehall, and notes suggestions that outside law firms or consultancies could be hired.

Furthermore, during the campaign, Michael Gove and Boris Johnson argued that the UK’s post-Brexit future did not necessarily lie within the European Single Market. However, a group of pro-EU MPs suggested they could use their Parliamentary majority to prevent the UK from leaving the Single Market, putting a future negotiation process in jeopardy.

More pressing, however, would be the impact of Brexit on the UK's own political union.

Legislative impact on the devolved assemblies

Brexit could have far-reaching consequences for devolution settlements, as EU Law is incorporated into the devolution statutes in Scotland, Wales and Northern Ireland.  

For example, as Sionaidh Douglas-Scott has highlighted, the European Convention on Human Rights (ECHR) and EU law are incorporated directly into devolution law, and attempts to amend statutes or legislation would require the consent of the devolved assemblies.

If Westminster were to repeal the European Communities Act (ECA) 1972, as Crossbench peer and former House of Commons Clerk Lord Lisvane suggested the UK would have to do, it would still be incorporated in the devolved nations. As a result, it would be necessary to amend the relevant parts of devolution legislation to remove references to EU law, requiring consent from the devolved legislature, as Parliamentary convention dictates.

Furthermore, as the FT has reported, provisions in the Government of Wales Act, the Northern Ireland Act and the Scotland Act 1998 stipulate that acts not compatible with EU legislation are “not law”. In Scotland, control over agriculture and fisheries would default to Scotland as a devolved competence, as existing legislation reflects the assumption that these areas are the responsibility of the EU. Professor Douglas-Scott has suggested that such changes, requiring legislative consent, could lead to a “collision course” between Westminster and Holyrood.

Scotland – a second IndyRef?

In a previous blog, we said that the possibility of a second referendum on Scottish independence could be one of the big constitutional fall-outs of a Brexit result.

This afternoon, First Minister Nicola Sturgeon confirmed she would “take all possible steps and explore all options…to secure our continuing place in the EU and in the single market in particular”, as Scotland voted overwhelmingly to remain. Outlining her plans, she said she would seek direct discussions with EU institutions and member states.

With Scotland potentially being taken out of the EU “against its will”, Ms Sturgeon declared that she regarded it as “democratically unacceptable”, and her comments suggest that a second referendum is highly likely.

Mr Cameron now leads what is now effectively a caretaker Government, and relations with the Scottish Government will have to be carefully managed.

Wales

Over in Wales, the result is unlikely to have political ramifications for the Union, as it voted overwhelmingly with its English counterpart in rejection of the European Union. 

Eire

However, as we previously discussed, Brexit will have implications for Britain’s relationship with Ireland, border controls, and create political uncertainty in Northern Ireland.

Responding to the result, Northern Ireland’s Sinn Fein Deputy First Minister Martin McGuinness has said the Government has a ‘democratic imperative’ to call for “a border poll “on whether Northern Ireland should leave the UK and unite with the Irish Republic.

Following a similar line of argument to Ms Sturgeon, Mr McGuiness said that "the people of the north of Ireland have made it clear at the polls that they wish to remain in the EU”, but First Minister Arlene Foster rebuked claims as "predictable as flowers in May".

Though a separate EU state, Brexit could alter the UK’s close relationship with Ireland. The Ireland Act 1949 stipulated that the Republic of Ireland was no longer a British dominion, but would not be regarded as a ‘foreign country’ for the purposes of British law. It has been argued that any future relationship between the UK and Ireland would be subject to agreement with the whole of the EU, not just between the two states. Withdrawal would also require the 1923 Common Travel Area, described as having “enormous symbolic and practical importance”, to be reviewed as it could lead to a “hard” border between Northern Ireland and the Republic.

In one of the more dramatic interventions of the campaign, former Prime Ministers Tony Blair and Sir John Major used their involvement in the Northern Ireland peace process in the 1990s to warn of the implications of establishing a “hard” border with Ireland. Furthermore, it has also been highlighted that the Good Friday Agreement of 1998 includes provisions from the European Court of Human Rights and the ECA.

On Monday, Taoiseach Enda Kenny made a passionate case in support of Britain remaining a member of the EU in the Guardian, noting the administrative burden and inevitable cost of leaving. He warned of the psychological effect of “a hardening border on the island”, highlighted the role of much-needed EU funding in Northern Ireland, and argued that Ireland was a co-guarantor of Northern Ireland.

From devolution statutes to peace processes, the uncertainty produced from Brexit could lead to a constitutional crisis across the UK. The procedural and practical consequences of withdrawal would have to be carefully balanced alongside the review of devolution settlements and the establishment of new relations.   

Furthermore, the outcome of the EU referendum exposed divisions across the political spectrum that will have long-term implications, with demands from Scotland and Northern Ireland for further referendums producing an unprecedented existential threat to the Union.  

This piece is just a sample of the in-depth analysis provided as part of DeHavilland's comprehensive political intelligence service. Take a trial today to discover what DeHavilland can do for you.

Jasmine Mitchell
Jasmine Mitchell
Political Analyst

Jasmine Mitchell is a Political Analyst at DeHavilland, where she monitors the UK Parliament and devolved institutions. She first joined DeHavilland as a Research Assistant in January 2015. Jasmine holds a BA in Modern History and Politics from the University of Liverpool and a Masters in Conflict, Security and Development from King's College London.