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Brexit: what happens next? (274 KB, PDF)
On 23 June 2016 the UK voted in favour of leaving the European Union. Turnout was 72.2% and Leave won 51.9% of the vote across the UK. Remain won 48.1% of the vote.
Must the Government respect the vote to leave?
No, but politically it is highly unlikely that the Government would ignore the result. Commentators think not respecting an out-vote would be political suicide.
What if Parliament does not pass legislation to implement EU withdrawal?
Parliament could vote against the adoption of any legislation linked to withdrawal – an amendment to or repeal of the ECA, for example – but this would not prevent the UK’s exit from the EU if the UK Government had already notified the EU under Article 50 TEU.
Article 50 stipulates withdrawal two years from formal notification, with or without a withdrawal agreement.
There is a view that Parliamentary consent is needed to trigger Article 50 TEU, but the Government’s view is that this is formally a matter for its prerogative powers (although it should be ‘fully debated and discussed in Parliament’).
Will EU law still have effect in the UK?
Yes – until the UK actually leaves the EU. To remove EU obligations from UK law the Government will have to repeal the European Communities Act 1972 (ECA), secondary legislation implementing EU law, and directly applicable EU Regulations.
There is no reason why EU-based UK law could not remain part of UK law, but the Government would have to make sure it still worked without the UK being in the EU.
Will immigration be affected?
What will happen to the free movement and working rights of EU/EEA citizens?
For the time being, these rights remain unchanged. What happens in practice in the longer term will depend on the approach taken by the Government and the 27 other Member States during the UK’s withdrawal negotiations.
The Government did not set out what approach it would to take on this issue during the referendum campaign.
It has been widely suggested that the UK and other European governments would probably favour a solution that protects the immigration rights of people already exercising their free movement rights, given the widespread disruption and administrative burden that retrospective changes could cause.
‘Leave’ campaigners indicated support for such an approach during the referendum campaign. Supporters of the Vote Leave campaign said that, in the event of a vote to leave the EU, “there will be no change for EU citizens already lawfully resident in the UK”.
Will Brexit open up more immigration opportunities for Commonwealth citizens?
While it is possible to argue that Brexit could or should lead to enhanced visa options for Commonwealth nationals, it is not possible to state with any certainty what a post-Brexit UK immigration policy might look like, and there is no consensus on what implications Brexit could have for opportunities for Commonwealth immigration. The Government has not indicated a position on this.
Some commentators have suggested that gaining greater control over EEA immigration as a result of leaving the EU could (or should) lead to enhanced scope to prioritise Commonwealth immigration.
Immigration controls for France and the UK
The centre-right Mayor of Calais has announced that she wants the Treaty of Le Touquet to be re-negotiated. This bilateral treaty governs the immigration controls for France and the UK.
France could break the Le Touquet treaty unilaterally (even if the UK did not leave the EU).
Next steps: UK action
The UK ‘deal’ agreed in February 2016 on the UK in the EU will not come into force.
Although the UK has voted to leave the EU, from 24 June until the point of departure from the EU the UK is still a member of the EU. Nothing about the UK’s EU membership will change initially.
The UK will continue to apply EU law and to participate in the making of EU law in Brussels.
The UK Commissioner, Lord Hill, announced his resignation on 25 June. It is not clear if he will be replaced.
The European Scrutiny Committee will consider any EU documents resulting from the vote to leave and it will doubtless consider what else it might do in the light of circumstances at the time.
Impact on defence and the armed forces?
The direct impact of leaving the EU on the UK armed forces is arguably minimal: the UK’s ability to project military power will be largely unaffected. The UK’s membership of NATO, which the Government describes as the ‘bedrock’ of national defence, remains unchanged.
Next steps: EU action
On the one hand, the EU will continue with ‘business as usual’. The institutions will continue to discuss and adopt laws and the EU Court will continue to give preliminary rulings and decide on alleged breaches of EU law, including in cases involving the UK. But the EU institutions are holding emergency meetings to discuss the UK’s departure.
Could Scotland stay in the EU?
Not in its current position within the UK, although there is some discussion of whether it could have a relationship like Greenland’s. Even if a potential second independence referendum was passed, there is no certainty that Scotland could ‘inherit’ the UK’s place in the EU.
Scotland is currently not a ‘state’ under international law capable of signing and ratifying international treaties. Nor does it have power over international relations, which are reserved to Westminster under the Scotland Act 1998.
Scotland could not therefore be an EU Member State in its own right, or even sign an Association Agreement with the EU, however much either side wished for it.
Could it join the ‘Overseas Countries and Territories’?
Some countries and territories, including Greenland, have a special relationship with the EU without being EU Member States in their own right.
These ‘Overseas Countries and Territories’ (OCTs) have duty- and quota-free access to the EU market for goods, and automatically receive better terms of trade in services and establishment.
However, they do not participate directly in EU decision-making, and EU law and Treaties do not apply there.
If Scotland wanted to become an OCT, the definition in the EU Treaties would have to change.
As an independent country
If Scotland became independent, could it ‘inherit’ the UK’s place in the EU or would it have to go through the whole accession process for new Member States?
There is no precedent for a devolved part of an EU Member State becoming independent and determining its membership of the EU as a separate entity – let alone in the context of the ‘parent’ state leaving the EU.
Under general international law, there are at least three different possibilities for a newly-independent Scotland’s membership of international organisations, depending on how the break-up of the UK was categorised:
- continuation and secession: the rest of the UK would retain its treaty obligations and membership of international organisations, but Scotland would not
- separation: both entities would retain them
- dissolution: both would lose them
But whatever the position under international law, a decision on Scotland’s status in the EU is likely to be a political one.
Power to call a referendum
The Scotland Act 2016 did not give the Scottish Parliament law-making powers in relation to referendums, so UK consent would be required for another referendum.
The Article 50 TEU route is the legal way to leave the EU under EU and international treaty law, although Vote Leave argued that alternative legal procedures could be used, citing the example of Greenland, or international treaty law.
Can the UK just repeal the European Communities Act 1972?
UK membership of the then EEC was authorised by the passing of the European Communities Act 1972. Some have said that by simply repealing the 1972 Act we could leave the EU.
It has been suggested that although the UK Parliament may repeal the European Communities Act 1972, this would not bring an end to the domestic incorporation of EU law in the devolved nations.
UK Government’s treaty obligations under international law
The UK Government has ratified a whole series of EU Treaties, meaning that it is bound by the obligations under those treaties as a matter of international law.
If the UK simply repealed the European Communities Act 1972 and/or other EU-based domestic legislation without withdrawing from the EU Treaties, it would be in breach of its obligations under those treaties.
The EU Treaties include specific mechanisms for dealing with breaches, but the degree to which those mechanisms might be invoked in the circumstances is uncertain.
Treaty provisions on withdrawal
Where a treaty has a specific provision for termination, it has to be followed unless all the parties agree otherwise.
There is express provision for withdrawal from the EU Treaties in Article 50 TEU, and some argue that the EU Member States cannot simply agree another route without involving the EU institutions and national parliaments.
The process for withdrawing from the EU is set out in Commons Briefing Paper 7551, Brexit: how does the Article 50 process work?, 30 June 2016.
It supplements other recent Library publications on the outcome of the EU referendum:
- Financial services after the referendum, 24 June 2016
- Brexit: how did the UK vote? 24 June 2016
- Reading list on UK-EU relations 2013-16: reform, renegotiation, withdrawal 24 June 2016
- Leaving the EU: How might people currently exercising free movement rights be affected? 27 June 2016
- Tax after the EU referendum, 27 June 2016
- Brexit: how will it affect transport? 29 June 2016
Documents to download
Brexit: what happens next? (274 KB, PDF)
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