Brexit: a dry legal opinion

Brexit - Implications and Next Steps

For anyone still celebrating the outcome of the June 23 2016 UK referendum on whether the UK should remain in or leave the European Union, the following considered legal opinion from the law firm Baker Botts might just have a sobering effect.

The outcome of the referendum has no immediate legal implications. The referendum was advisory only and has no legal effect.  The UK Government and UK Parliament could, in principle, ignore its outcome.

Thus, for the time being, all EU regulations remain directly effective in the UK, and UK domestic legislation, based on EU legislation (e.g., EU directives), remain in force.

There continues to be some debate in the UK over what is required as a matter of English law in order for the UK formally to withdraw from the EU. The withdrawal process will only be triggered once the UK notifies the European Council of its intention to withdraw from the EU pursuant to Article 50 of the Treaty on European Union. However, any decision to withdraw, which according to the outgoing UK prime minister, David Cameron, is unlikely to be taken before October 2016, must be in accordance with the UK's "constitutional requirements". Because the UK is a parliamentary democracy, this is likely to mean that the Prime Minister is unable to issue a declaration under Article 50 - triggering withdrawal from the EU - without having been first authorised to do so by an Act of the UK Parliament (editor's note: nearly 500 of the 650 current MPs are known to be pro-EU). Were he or she to attempt to do so before such a statute was passed, the declaration may be legally ineffective as a matter of domestic law and it may also fail to comply with the requirements of Article 50 itself.

Once the UK has formally given notification of its intention to leave the EU, work will have to start on four different fronts:

negotiations between the UK and the EU (consisting of the remaining 27 Member States - the "EU 27") on the terms of the withdrawal;

negotiations between the UK and the EU 27 on the future relationship between the UK and the EU 27;

internal UK legislation and regulation on, among other things, areas currently governed by EU law; and

negotiations between the UK and the rest of the world, in particular the approximately 50 countries with which the EU currently has free trade agreements.

This will be a monumental task, in particular for the UK, and it is doubtful whether it can be completed within the two-year time period contemplated by Article 50 EU Treaty.

Time for some paracetamol and a slug or two of Irn Bru, methinks...