Sam Bovill 

Naked Politics Blogger 

It’s been a few weeks since we voted to leave the EU in the recent referendum. However, there has been a rather conspicuous lack of leaving since the dust settled on the morning of the 24th. We’re currently still part of the EU; our glorious nation has yet to grow limbs and frantically doggy paddle away from the rest of the continent, with Scotland desperately trying to detach itself from England and bring Northern Ireland back with it to the bureaucratic embrace of the EU. At least our politicians are setting a good example. David Cameron has fled his post, Boris Johnson is trying to pretend he doesn’t exist and Nigel Farage is nowhere to be seen following his post-victory boozer of a night out. Our suspiciously stable status begs the question; why haven’t we left the EU? Perhaps more importantly, how do we even leave?

In his resignation speech, Cameron did offer some insight into how he believes we leave the EU, saying this:

“A negotiation with the European Union will need to begin under a new Prime Minister, and I think it is right that this new Prime Minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.”

In order to leave the EU, Cameron seems to be saying that the next Prime Minister needs to “trigger Article 50,” perhaps as part of his or her morning routine, in between teeth brushing and looking at funny internet pictures over a bowl of Cookie Crisp. Article 50, for those who aren’t quite up to date on their international treaties (I can’t imagine why not), refers to Article 50 in something called the Lisbon Treaty, a big old international contract-type thing that sorts out our relationship with the EU. Article 50 itself is all about how members of the EU can leave the EU. I won’t bore you to death with all the legal mumbo-jumbo that each Article contains, but here’s an important bit of Article 50:

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

It also says this a bit further down:

“The Treaties shall cease to apply to the State in question…”

This is something that puts a bit of a snag in Cameron’s earlier statement. We can only leave the EU if we follow these “constitutional requirements,” these being the rules and principles that tell the state how it functions. For example, one of the most important parts of the UK constitution is that of Parliamentary sovereignty – Parliament makes and unmakes any law it wants and nobody can boss it about or make more important laws, no matter how hard they try. Unfortunately for Cameron, it is very, very unlikely that the new Prime Minister triggering Article 50 aligns with these constitutional requirements. They can push the big red “LEAVE THE EU” button over and over again and accomplish diddly-squat.

The reasoning for this is pretty simple. When the Prime Minister (or anyone in the Government, really) does something official, like make a decision about national security or granting somebody mercy, the power they use to do this is known as the Royal Prerogative. It sounds really, really fancy, and that’s because it is; it comes from when the King or Queen could do anything they wanted and nobody could tell them what to do. Old King Bob fancies a bacon sandwich? Cook up a law forcing everyone in the country to bring you a bacon sarnie or face execution. However, monarchs tended to listen to their judges and the court system, probably recognising that a stable government that followed the rules set by the courts was better for pretty much everyone, and when Parliament came into being, the courts gradually began to limit what the Royal Prerogative allowed the monarch to do. Over time, out of respect for democracy, it became pretty normal for it only to be used where the Government said to – if the Queen nowadays tried to do something without Cameron or his buddies telling her to, she’d probably be in trouble. In the modern sense of the term, the Royal Prerogative refers to the things the Government can do without needing Parliament’s express permission.

Looking at where judges have limited the Royal Prerogative, we can see why the next Prime Minister can’t just hammer down on that scary “LEAVE THE EU” button, however much they may want to. The best example can be found in the succinctly named case of R v Secretary of State for the Home Department, ex parte Fire Brigades Union[1995] 2 AC 513 (seriously, whoever came up with the naming system for these things deserves a medal and then possibly a slap). This was a very, very exciting case, full of drama, romance, and copious amounts of violence, in which…the Home Secretary implemented a different compensation scheme rather than implement the scheme Parliament told him to. Huh. Can’t quite seeing that inspiring the next 007 film, frankly. Anyway, in this case, Lord Browne-Wilkinson said in his judgement that he would be “surprised” if the Royal Prerogative could be used to “frustrate the will of Parliament as expressed in a statute” – basically, if the Government uses the Royal Prerogative to do something Parliament didn’t like by going against a bit of law Parliament has made, it probably wouldn’t work out too well.

Would the Prime Minister triggering Article 50 go against any law Parliament has made? Well, yeah, kinda – the European Communities Act 1972 gives effect to EU law and treaties and all that stuff. If the Prime Minister triggers Article 50, which causes our treaties with them to stop working, then the Act is left applying laws for a group we’re no longer part of and treaties that themselves say that they don’t apply. It’d be a pretty pointless bit of law, all things considered. I’d say it’s pretty clear that the European Communities Act is intended by Parliament to make EU law and treaties work in the UK, and to trigger Article 50 would go against this by stopping all of that from working – therefore, according to that case I mentioned earlier, the Prime Minister just can’t do this. Parliament would probably have to make a law giving the Prime Minister the power to trigger Article 50 and get rid of the European Communities Act.

Ultimately, it ain’t the Prime Minister who can pull us out of the EU. It’s all of our MPs in Parliament – and, as the EU referendum wasn’t legally binding on them, they legally have the power to do whatever they want, whether that be embracing the EU and renaming the UK “#welovetheEU” to telling the EU to sod off and building a gigantic middle finger at the continent at Dover. What Parliament decides to do is entirely a matter of politics now, and that’s a tough game to predict. It could be the case that all the MPs consider that 52% of the country voted Leave and all vote to abandon the EU to support this in the name of democracy. MPs could vote based on what their constituency wanted, even though this could be difficult – a lot of the reporting of votes was based on local councils and not the several constituencies each contained. Maybe the MP of a Leave area could change their mind, what with all the economic uncertainty, and vote to remain in the EU. It could be any combination thereof.

All I can say is that we’re in for a hell of a ride, one where we’re all blindfolded with no clue about what’s gonna happen, and we’re dangerously close to some cliffs. It’s a great time to be a political or legal adrenaline junkie.

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Last Update: April 28, 2018