This note deals with the operation of Article 50 of The Treaty
of the European Union (also known as The Lisbon Treaty) and the
complexities involved in unravelling EU law from domestic law
following the decision to leave the EU in the Referendum
Article 50 provides that "Any Member State may decide to
withdraw from the Union in accordance with its own constitutional
The EU Referendum
In theory the outcome of the referendum does not bind the
government. Having regard to the political climate, however, and
the resignation this morning of David Cameron as Prime Minister, it
is clear that the UK will leave the EU.
Mr Cameron said:
"The will of the British people is an instruction that
must be delivered".
Article 50 requires a departing Member State to serve notice on
the European Council of its intention to exit the Union and then to
negotiate a withdrawal agreement with the Union.
Mr Cameron has said that notice will not be served until a new
Prime Minister is in place, which will be in October this year.
Assuming the government does then serve notice on the European
Council, the treaties of the European Union will cease to be
applicable to the UK from the date of the withdrawal agreement or,
failing that, within two years of the notification unless we and
the Council both agree to extend this period. The agreement is
concluded on behalf of the Union by the Council and will set out
the arrangements for withdrawal, including a framework for the
UK's future relationship with the Union. Should the UK seek to
rejoin the European Union, it would be subject to the same
conditions as any other applicant country.
Effect on UK Law
The process of unravelling EU law from domestic law will be
complicated. Repeal of the European Communities Act 1972 in itself
would be insufficient.
In particular, subject to the nature of the terms agreed for the
UK's exit, it seems unlikely that all EU law will be sought to
be repealed. Much of it will be retained. In that event
constitutional difficulties might arise. It is questionable, for
example, whether a single 'Henry VIII' clause (allowing
primary and secondary legislation to be amended or repealed by
statutory instrument) will be constitutionally acceptable given the
wide areas that EU law cuts across and the limited Parliamentary
scrutiny that subordinate legislation allows. In any event, until
repeal, all EU law which forms part of UK law will remain in
There will also be some difficulty in identifying the continuing
status of EU law. Questions of interpretation will be likely to
arise and have to be legislated for or else decided by the courts
as to the precedent value of European court case law and its status
in areas where a particular area of EU law was sought to be
preserved in a domestic context.
Linked issues of law arise in respect of the devolved
governments and legislatures. The devolution Acts are phrased
differently but each of them appear to contain EU law that has been
devolved. It is therefore possible that Scotland, Wales and
Northern Ireland will retain EU laws which concern devolved issues
which England will not.
Freedom of movement
So far as EU citizenship is concerned, this is a status that is
dependent on national citizenship but it confers rights different
from and additional to those that derive from national citizenship.
The right to free movement within the territory of the EU is the
most significant in practice.
The EU citizenship right to free movement is incorporated into
UK law by the European Communities Act 1972 and is transposed by
domestic secondary legislation. EU citizenship rights in the EU
treaties are directly effective; they do not require domestic
legislation for effect.
The EU citizenship of British nationals will have no independent
existence following Brexit but the same may not automatically be
said of their EU citizenship rights. The legal position of the body
of persons that are currently termed EU citizens who seek to rely
on EU citizenship rights following Brexit will depend on: (i) the
nature of the legal situation that replaces EU membership; and (ii)
whether the individual in question is a UK citizen in the EU or an
EU citizen in the UK.
What is clear is that the UK's withdrawal will inform UK
politics and vice versa for some time. The terms of our exit from
the EU will also define the impact of withdrawal on the movement of
people, goods, capital and services across the EU. Until that
process is complete, nobody knows what a post EU UK is going to
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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