Experts and observers have increasingly questioned whether Brexit is likely to actually occur, and to what extent the June referendum would be considered legally binding. Professor Thom Brooks, of the University of Durham, said in August that Article 50 of the Lisbon Treaty was unlikely to be invoked. Its use would begin the two year process of Britain’s exit from the EU. Article 50 was only created in 2009, and has never been used before. Notably, Brooks also advised the electoral commission on the wording of the Brexit referendum. He emphasized the complex nature of going through with the plan, saying “There is a 42 year evolving legal relationship that is not so easy to unpick. It is an absolutely massive task.”
Entrepreneur Clem Chambers, writing for Forbes magazine, has asserted that the EU Referendum Act 2015 is entirely non-legally binding, going further to say that ‘parliamentary sovereignty’ would prevent any shortcuts to Article 50. He says:
“It is a non-legally binding referendum. That is not opinion. There is nothing in the 2015 Referendum Act for it to be legally binding because of the basis of ‘parliamentary sovereignty.’ So for the U.K. Parliament to be shortcut by an executive implementation of Article 50 would be highly irregular and most likely unlawful.”
This sentiment is also increasingly reflective of comments by EU lawmakers and academics, such as Austrian finance minister Hans Jörg Schelling. Schelling commented in July that he was confident the EU would still be composed of 28 members in five years. While he indicated the June referendum should be “treated with respect”, he emphasized that it was not written in stone.
Morgan Stanley economists Jacob Nell and Melanie Baker published a note to investors in which they claimed, among other things, that damage to the UK economy from actually implementing Article 50 would be so massive that it would be political suicide for officials to push to actually leave the EU.
One million UK voters live in other EU member states. Most of them will vote against any government who moves to leave the EU.
On top of all this, Prime Minister Theresa May is pro-Remain, although she has said she plans to respect the will of the people.
Professor Brooks added that he felt Brexit leaders had been unprepared for the uphill battle of making Article 50 a reality, saying for example that Boris Johnson had only supported the move for “political point scoring”.
For their part, UK government officials have asserted that Article 50 will be implemented. A spokesman for the Foreign Office said “The Prime Minister has been very clear on this issue. Brexit means Brexit.”
Most recently, an anti-Brexit legal challenge won its first victory, in which a senior judge ruled that the government must reveal its ‘secret’ legal arguments. The Government has claimed these arguments show that parliament would not have to be consulted in invoking Article 50. The ruling precedes a High Court hearing on October 13th, in which the court will hear a case from People’s Challenge, a crowd-funded initiative to prevent Brexit.
Despite the theoretical mandate of the referendum, it remains to be seen whether a move to truly break away from the EU would be politically viable. UK law has now been intertwined with EU law for more than four decades, and these treaties present a complex web to untangle. Economic ties present an even more daunting hurdle. While no politician wants to be seen as ignoring the will of the people, that factor may ultimately be outweighed by the economic and political obstacles involved in implementing Britain’s exit from the EU.