LONDON: Britain’s new Prime Minister faces the daunting task of beginning negotiations on withdrawal from the European Union—a years-long process filled with potential hold-ups and even a chance of reversal.
This is uncharted territory for Britain as it would be the first member state ever to leave the EU, presenting a constitutional conundrum that many observers believe can only ultimately be resolved with a second referendum or a general election.
That in turn means Britain could change its mind about leaving the EU, something that experts believe is possible even once the exit procedure has been triggered under Article 50 of the EU’s Lisbon Treaty.
There are also potential legal questions—particularly on Article 50 notification—as the referendum is purely advisory and an expression of political will rather than an act with legal force.
Here are the key challenges and pitfalls ahead:
Article 50, Parliament and courts:
The Prime Minister can notify the European Council that Britain is invoking Article 50 without going to parliament first, according to Oliver Letwin, the chief civil servant in charge of Brexit preparations.
But there could well be one or more legal challenges against this, arguing that MPs should be consulted first, and Letwin has admitted to lawmakers that he has “no doubt” the matter will end up in court.
Letwin has argued there is no need to go to Parliament because invoking Article 50 would be a Royal Prerogative—a series of government executive powers that cover foreign policy and EU treaties.
But some lawyers say that since the 1972 European Communities Act—the legal basis for Britain’s EU membership—is a piece of domestic legislation, there would have to be a vote in Parliament first.
Jolyon Maugham, a barrister who has launched a crowdfunding campaign to mount a legal challenge on this issue, told Agence France-Presse he wanted “to compel the government to push the button by act of Parliament.”
Role for Scottish Parliament?
The issue here is that the Scottish parliament is bound by EU law under the Scotland Act of 1998.
Its consent would therefore be required in a Brexit, according to several constitutional experts.
“You would have to have legislative consent from the Scottish parliament,” former European Court of Justice judge David Edward told a House of Lords committee earlier this year.
“I can envisage certain political advantages being drawn from not acceding to the legislative consent—creating difficulties about it,” he said.
However, Adam Tomkins, an opposition Scottish lawmaker and professor of public law at Glasgow University, said the regional government did not have the right to block a Brexit.
“Holyrood has the power to show or to withhold its consent,” he wrote on Twitter, referring to the seat of government in Edinburgh. “But withholding consent is not the same as blocking.”
Second referendum or new election?
The main candidates to replace Prime Minister David Cameron have ruled both of these options out and it would be difficult for any political leader to support either so soon after a momentous democratic exercise with a clear result in favor of Brexit.
But that has not stopped some influential voices saying that the withdrawal agreement and the term of Britain’s new ties with the EU would be so far-reaching that a second referendum or a general election would be required to validate it.
Under the election scenario, a party arguing strongly against Brexit winning the vote could give enough of a democratic mandate to reverse the referendum vote.
The point was made by Health Secretary Jeremy Hunt in an article for the Daily Telegraph in which he argued against invoking Article 50 “straight away.”
“Before setting the clock ticking, we need to negotiate a deal and put it to the British people, either in a referendum or through the Conservative manifesto at a fresh general election,” he said.
Anand Menon, European politics professor at King’s College London, wrote in Foreign Affairs magazine that the referendum did not give a choice on “what kind of relationship with the EU” Britons wanted and therefore a second referendum is “eminently possible.”