Is the referendum structured to have legal effect, such that if the vote is to leave, that in itself effects departure? Or is it purely hortatory, asking Parliament to pass enabling legislation?
It’s not self-executing, no. That’s not how the Brits do things.
If the “leave” campaign wins the referendum, that creates a political onus on the UK government to initiate the departure mechanism which the EU treaties provide. The UK government gives notice to the EU of its intention to leave, whereupon negotiations begin between the UK and the rest of the Union on the time of the departure, on the terms of the departure and on the terms of the external relationship that the UK will have with the EU after the departure. Those negotiations can continue for up to two years - or longer, if everyone is agreeable. If after the time is up the negotiations don’t end with an agreement as to the terms of the departure (and if they aren’t continued by mutual agreement) then the UK leaves on terms that it has no special relationship with the EU (which is very much not what the UK would want, I think).
The negotiations could in theory be wrapped up in less than two years but, frankly, there would be a lot to talk about, so much less than two years is probably not very likely.
So, assuming some time elapses between the referendum result being certified and the UK giving formal notice to the EU to kick of the two-year negotiation period, it’s probably going to be more than two years before the UK actually ceases to be a member of the EU.
Thanks very much.
Assuming the Brexit is passed, at any point could the Monarch prevent it through refusing Royal Assent* at some point in the process.
*Let’s not discuss if she should or if it’ll be a Constitutional Crisis or advice of Ministers. I’m just interested if Lilibet2 needs to approve the Brexit.
Depends. But, probably, yes, at some point the process will involve something that requires the Royal Assent.
The legislation for holding the referendum has of course already received the Royal Assent. So, too late to hold back on that.
The certification of the referendum result does not, SFAIK, require the Royal Assent. The officials just count the votes, and the head honcho official signs a certificate saying what the total on each side was. No queens involved.
The next step is for the UK government to send a notification to the EU saying “we want out”. No Royal Assent needed.
Negotiations follow. The conduct of the negotiations does not require the Assent either.
But, assuming the negotiations end up with some kind of agreement, it’s highly likely that that agreement will require primary legislation in the UK to implement it. If nothing else, the European Communities Act 1972 will have to be repealed or heavily amended. That will require an Act of Parliament, which will need the Royal Assent.
It’s also highly likely that the agreement will involve a new Treaty between the UK and the EU, even if only a Treaty of Withdrawal (to balance the Treaty of Accession). In the UK making a treaty is an executive act and ratification by the legislature is not required. (Parliament can object to ratification by passing a resolution - which does not require Royal Assent - but if nothing is done by Parliament then the executive goes ahead and ratifies.) The ratification of a treaty is an exercise of the royal prerogative and, although Royal Assent is not required in the same way as for an Act of Parliament, I assume there must be some theoretical mechanism by which the crown could (but never would) prevent the executive from ratifying a treaty.
Not only is it not self executing or legally binding, the UK parliament could actually choose to completely disregard the vote:
If the vote is a small win for leave, eg 53% then parliament may well decide to just go back to the EU, try and negotiate some new concessions for the UK on certain issues then have another referendum.
This is true of every referendum in a country with a supreme legislature.
Sure, but the article makes clear why this is actually somewhat likely to happen in this case especially if the result is close to 50/50.
Or we can imagine a variant on this. There’s a majority vote in favour of leaving, and the UK gives notice and opens negotiations on the terms of leaving. Two years down the line, after some tough negotiations, the best package that the UK can get the EU to agree to is significantly worse than the kind of package that the Brexit campaign envisaged.
The UK government at the time could decide that the referendum result isn’t a political mandate to leave on these terms, and could decide not to leave after all.
I don’t think this is very likely, and it would cause political ructions both from the Brexiters and from the EU. But, legally and constitutionally, it’s a possibility. The referendum is consultative only, and the ultimate authority (and responsibility) for deciding whether the UK will participate in the EU and on what terms rests with the government, accountable to Parliament.
What do you call a “supreme legislature”, exactly? Referendums can be self-executing a a country with a parliament, so I guess it’s not that.
I think the reference is to a country under whose constitution the power of parliament is unconstrained; parliament can make or unmake any law, including fundamental constitutional law.
The UK is such a country. I don’t know of any other.
As a result, in the UK a referendum either has no legal effect at all (and this has been the case for all the referenda held in the UK to date) or it has legal effect only if, and to the extent, that parliament says it is to have effect, and parliament can change it’s mind about that, even after the event.
New Zealand is another, and the New Zealand Parliament has ignored the result in all four citizens’ initiated referenda.