The road to Brexit: 16 things you need to know about the process of leaving the EU

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The UK has voted to leave the European Union. So what happens next? How, in practical terms, will Brexit actually happen? Alan Renwick explored some key elements of the withdrawal process before the referendum campaign began. Here, he gives a point-by-point overview of what the road to Brexit will look like. This is an updated version of a post published on 20 June, which is available here.

The effect of the referendum

1. The UK remains a member of the EU for the time being. In purely legal terms, the referendum result has no effect at all: the vote was advisory, so, in principle, the government could have chosen to ignore it. In political terms, however, ministers could never have countenanced that. The Prime Minister has said that voters’ will ‘must be respected’ and indicated the start of a process of withdrawal. We should presume that the vote to leave means that we will indeed leave (see point 16) – though there is scope for various complications along the way.

2. The immediate effects of the result are political rather than legal: the Prime Minister has announced his resignation, and a motion of no confidence has been submitted in Labour leader Jeremy Corbyn. There was speculation before the referendum that David Cameron would be out of Downing Street within days after a vote for Brexit, but his decision to stay until his successor has been elected reflects much more than just personal preference. The Cabinet Manual is clear (at paragraph 2.10) that he cannot go until he can advise the Queen on who should form the new government. Conservative party rules set out a two-stage leadership election process: first, the parliamentary party, through successive ballots, whittles the field down to two candidates; then the party membership, by postal ballot, chooses between these. Recent experience suggests this would take two to three months.

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The road to Brexit: 16 things you need to know about what will happen if we vote to leave the EU

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As the referendum on the UK’s membership of the EU draws closer, the result is impossible to predict. Many are asking what, in practical terms, would happen if we vote for Brexit. Alan Renwick explored some key elements of the withdrawal process before the referendum campaign began. Here, he gives a point-by-point overview of what the road to Brexit might look like.

**An updated version of this post was published on 24 June in light of the referendum result**

The effect of the referendum

1. We will not immediately leave the EU if the result on 24 June shows a majority for Brexit. Indeed, in purely legal terms, the referendum result has no effect at all: the vote is advisory, so, in principle, the government could choose to ignore it. In political terms, however, ministers could not do that. We should presume that a vote to leave means that we will leave (see point 16) – though there is scope for various complications along the way.

2. The Prime Minister would very likely announce his resignation quickly, but would stay in post until his successor was chosen. There is much speculation that David Cameron would be out of Downing Street within days, and it is true that his position would probably become untenable. But the Cabinet Manual is clear (at paragraph 2.10) that he cannot go until he can advise the Queen on who should form the new government. Conservative party rules set out a two-stage leadership election process: first, the parliamentary party, through successive ballots, whittles the field down to two candidates; then the party membership, by postal ballot, chooses between these. Recent experience suggests this would take two to three months.

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Brexit, devolution and legislative consent: what if the devolution statutes were left unchanged after Brexit?

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In a previous blog post Sionaidh Douglas-Scott wrote about how the consent of the devolved assemblies would be required to remove references to EU law from the devolution legislation in the event of Brexit. Here, she considers what would happen if, fearing the constitutional crisis that may result, the UK government simply left the devolution legislation untouched. For the sake of simplicity and space, this blog restricts discussion to Scotland, although similar issues will pertain to Wales and Northern Ireland.

In a blog post published on this site earlier this week, I considered the requirement for the legislative consent of the Scottish Parliament when the UK parliament seeks to legislate in devolved policy areas, or seeks to vary the legislative competence of the Scottish Parliament or the executive competence of the Scottish government. In the event of Brexit, these circumstances may arise with regard to the need to amend devolution legislation, such as the Scotland Act 1998, in order to remove references to EU law. If such consent is not forthcoming, this could prompt a constitutional crisis. However, suppose then that, desirous to avoid such constitutional consequences, the UK government decided not to propose legislation to amend the devolution statutes, but opted instead to leave them unchanged. What would be the impact of their doing this? Again we take Scotland as the working example.

At first sight, such a hypothesis seems ludicrously unworkable. Such a situation would require Scotland to act in compliance with EU law in any legislation it adopted in Holyrood within the scope of its devolved competences. So there would be a situation obtaining within a post-Brexit UK in which one regime operated for the Westminster parliament (no need to act compliantly with EU law) and a different regime in Holyrood, which according to s. 29(2)(d) of the Scotland Act 1998 would still have to act in compliance with EU law wherever it enacted its own devolved legislation. Although it would be technically possible to require compliance with EU law for Scottish legislation, even if the UK were not a member of the EU and were no longer bound by EU treaties, it would certainly be strange if a treaty that no longer bound the UK was still required under the devolution settlement. There are some precedents for voluntary compliance with treaties by non-contracting parties. For example, the EU in Art 6 TEU declares that ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms’, and the EU is not currently a contracting party to the ECHR (although all members of the EU are themselves contracting parties to the ECHR). Requiring the Scottish Parliament to comply with EU law would no doubt give rise to uncertainty: for example, post Brexit, how would ‘compliance’ with EU law be evaluated, and would interpretations by the Luxembourg Courts be taken into account?

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Removing references to EU law from the devolution legislation would require the consent of the devolved assemblies

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In the event of Brexit, there will be pressing devolutionary matters to be addressed. One of these concerns the issue of the legislative consent of the devolved nations to the amendment of devolution legislation in order to remove references to EU law. If such consent is not forthcoming, this could prompt a constitutional crisis. In this post Sionaidh Douglas-Scott discusses this. For the sake of simplicity and space this blog restricts discussion to Scotland, although similar issues will pertain to legislative consent in Wales and Northern Ireland.

If there is a vote to leave the EU in the referendum on June 23, then the UK would need to commence proceedings to withdraw from the EU under Article 50 TEU. Art 50(3) states that after expiry of certain time periods the Treaties ‘shall cease to apply to the State in question.’ However, this would not be enough to remove the impact of EU law in the UK. It would also be necessary to repeal or amend the European Communities Act (ECA) 1972, which is the statute giving domestic effect to EU law in the UK.

Nor would this be an end to matters. EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. Therefore, although the Westminster parliament may repeal the ECA 1972, this would not bring an end to the domestic incorporation of EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis.

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Things flying apart? Analysing the results of the devolved elections

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On 25 May the Constitution Unit invited three electoral experts to give their analysis on the results of the recent devolved elections in Scotland, Wales and Northern Ireland. In this post Artur Foguet Gonzalez summarises their key insights.

 The fifth round of elections to the devolved parliaments and assemblies in Scotland, Wales and Northern Ireland took place on 5 May. On 25 May the Constitution Unit hosted three electoral experts ­– Professors Ailsa Henderson, Roger Scully and Cathy Gormley-Heenan – to digest the results. This post summarises the key points that were raised by the speakers.

Scotland: Professor Ailsa Henderson, University of Glasgow

Scotland awoke the morning after the election to two significant results: the Scottish National Party (SNP) was still the largest party in Holyrood but no longer held a majority, whilst Labour’s decline continued as it fell behind the Conservatives to become the third largest party in Scotland. Ailsa Henderson used her data from the Scottish Election Study (SES) to explain these results.

For the SNP three factors explain their continued popularity: the constitution, valence and leadership. Though the data shows that the constitution is not top of voters’ agenda, it also shows that voters are very unlikely to back a party that does not share their view on independence, so whilst the constitution may not be driving voter choice, it is a constraining factor. The SNP was the only party likely to collect votes from those who had supported independence in the 2014 referendum, whilst No voters were split between multiple parties. On valence, when voters were asked which party they trusted most on particular issues the SNP came top, not only on ‘standing up for Scotland’ but on every single issue. Nicola Sturgeon, meanwhile, remains an extremely popular figure.

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The government must fundamentally reassess its approach to devolution to safeguard the integrity of the Union

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Last week the House of Lords Constitution Committee published a major report on ‘The Union and devolution’. Mark Elliott and Stephen Tierney summarise the report, in which it is suggested that the government should fundamentally reassess its approach to devolution and that, in future, any new proposals for devolution ‘should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union’.

The House of Lords Constitution Committee’s report on ‘The Union and devolution’, published last week, declares the Union to be ‘under threat’, and recommends that the United Kingdom government ‘needs fundamentally to reassess how it approaches issues relating to devolution.’ The report is the culmination of a major inquiry which began taking evidence in October last year. The committee heard from 66 witnesses including academics, think tanks, the chairs of commissions on devolution, the UK and devolved governments, as well as party representatives from across the UK and a wide range of civil society groups. The committee also held evidence sessions in Cardiff and Edinburgh.

In its 142 page report the committee takes stock of the United Kingdom’s territorial constitution. Its assessment of the lack of vision with which devolution has been allowed to develop is particularly hard-hitting:

‘Power has been devolved to Scotland, Wales and Northern Ireland in an ad hoc, piecemeal fashion. Successive Governments have taken the Union for granted. Proper consideration of the cumulative impact of devolution on the integrity of the Union itself has been lacking.’

Nor does the committee see any convincing evidence that the UK government has now come to appreciate the difficulties inherent in this casual approach to constitutional design. It concludes that Oliver Letwin, the minister responsible for constitutional reform, ‘does not recognise the concerns expressed by this Committee and many others at the pressures being placed on the UK constitution by the manner in which the devolution of powers has taken place’. The committee is clear that this approach must end:

‘An inattentive approach to the integrity of the Union cannot continue. Following the significant changes that the territorial constitution has undergone in recent years, the time has come to reflect and take stock. While the constitution should reflect the wishes and interests of the nations and regions, that must not be at the expense of the stability, coherence and viability of the Union as a whole. Should any proposals for further devolution arise in the future, they should be considered within an appropriate framework of constitutional principles that safeguard the integrity of the Union.’

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Seven challenges for the fifth term of devolved government

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Today voters across the UK go to the polls for the fifth time since devolution began in 1999. As further powers are devolved to Scotland, Wales, Northern Ireland and parts of England, government at all levels faces a number of challenges. Akash Paun highlights his top seven.

 

1. Adapting to the new politics of fiscal devolution

A central feature of devolution to date is that the Scottish, Welsh and Northern Irish governments have little control over the size of their budget. Important tax and borrowing powers are now being devolved to all three nations, although the Barnett Formula also survives for now. Fiscal devolution within England is far less developed, but this may change as the voice of cities and regions grows louder and business rate changes come into effect. The result is that sub-national governments increasingly have to make trade-offs between public expenditure, taxation and borrowing, rather than simply deciding how to spend a grant from Westminster. This creates sharper accountability and strengthens their incentives to take policy decisions that boost the tax take.

2. Building devolved capacity to take on new powers

New systems and institutions need to be built to ensure that new powers are effectively managed. In Scotland, the Government is planning a new Social Security Agency to administer devolved welfare benefits. Revenue Scotland – the tax-collection body – may need to expand as further taxes are devolved. Similarly, a Welsh Revenue Authority is being created. Fiscal scrutiny bodies such as the Scottish Fiscal Commission and the planned Independent Fiscal Council for Northern Ireland are also becoming more important. Within England, devolution in areas such as health, justice and transport will require new policy and operational capacity in local areas too.

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