The UK EU referendum and the move towards Brexit
| Author | Juha Raitio,Helena Raulus |
| DOI | 10.1177/1023263X17699336 |
| Date | 01 February 2017 |
| Published date | 01 February 2017 |
| Subject Matter | Articles |
Article
The UK EU referendum and the
move towards Brexit
Juha Raitio* and Helena Raulus**
Abstract
After the referendum in June 2016, both the EU and theUK were plunged into political turmoil.The
withdrawal procedure must be triggered by the UK government, in accordance with the UK’s
constitutional requirements. The judiciary has consequently faced questions whether the govern-
ment could use the royal prerogative and the status of the devolved legislatures in the context of
triggering Brexit. The Supreme Court confirmed that the UK government cannot trigger Article 50
TEU without anauthorizing Act of Parliament.On the role of the devolved legislatures, the Supreme
Court ruled that these do not have a veto on the UK’s decision to withdraw from the EU. The UK
now needs to decide what it wants to achieve in the negotiations for its future relationship with the
EU. In this article, a few models areexplored. Although it currentlyseems that the UK governmentis
leaning towardsa ‘hard’ or ‘clean’ Brexit,a deeper analysis of the optionsreveals that there is no easy
answer to the questionof what the new EU–UK relationshipwill be like. The purpose of this articleis
to analyse the op tions available to the UK rather than to advocate an y one particular model.
Keywords
Article 50 TEU, parliamentary sovereignty, rule of law, devolution, hard Brexit, soft Brexit, reverse
Greenland
1. Introduction: the referendum of 23 June 2016 and Article 50 TEU
On Thursday 23 June 2016, the UK referendum on EU membership took place. The voters had to
decide whether the UK should leave or remain in the European Union. To the surprise of many, the
* Professor of European Law, University of Helsinki, Helsinki, Finland
** Internal Market Adviser, UK Joint Law Societies Office, Brussels, Belgium
Corresponding authors:
Juha Raitio, University of Helsinki, Helsinki, Finland.
Email: juha.raitio@helsinki.fi
Helena Raulus, Head of Office (Interim), UK Joint Law Societies Office, Brussels, Belgium.
Email: helena.raulus@icloud.com
All the views presented here are personal and do not reflect the views of the any of the UK Law Societies or the Joint
Brussels Office.
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(1) 25–42
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17699336
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‘Leave’ campaign won by 52%to 48%.
1
This victory must be viewed against the political mood in
the UK, which for decades has been suspicious of the EU for its perceived bureaucracy or ‘red
tape’, democratic deficit and for not taking the principles of subsidiarity and proportionality
seriously, as was highlighted in the conclusions of the UK government’s ‘Balance of Compe-
tences’ review
2
in 2014 – even though the review did not find any major issue where the UK could
benefit from the re-appropriation of powers.
Regarding particular issues, gaining back control in the field of immigration and controlling the
UK contributions to the EU budget were perhaps the most decisive political arguments in favour of
the nationalistic ‘Leave’ campaign. Furthermore, in the press and the public eye, the perception
was largely that the UK stands apart from its continental partners: the EU is run by a type of
‘French arrogance’ and favours idealism over pragmatism, which does not suit Britain’s outlook or
interests.
3
Even when it comes to the legal systems, the UK, and in particular England, is different
due to its common law approach, while other continental Member States belong to an ‘alien’ civil
law system.
This points towards deeper questions regarding the perceptions in the UK about its shifting role
in Europe and a questioning of the validity of the UK’s traditional reasons underpinning its
membership of the Union. A British government White Paper in July 1971 presented the arguments
in favour of accession to the EEC as follows: ‘[o]ur country will be more secure, our ability to
maintain peace and promote development in the world greater, our economy stronger, and our
industries and people more prosperous, if we join the European Communities than if we remain
outside them’.
4
While this argument was put forward in the 2016 referendum, it failed to convince
the majority of voters, particularly elderly ones who have lived through the UK’s membership of
the EU.
It was clear that the political establishment was not ready for the result. Former Prime Minister
David Cameron and members of his government stongly supported remaining in the EU but had
declared their intention to trigger Article 50 TEU if the Leave campaign were to win. However,
this did not come to pass, as the former Prime Minister and his cabinet decided to resign the day
after loosing the referendum. Following this, and the fact that the UK government was not able to
indicate any negotiation priorities until 2017, it became obvious that the UK government was not
prepared for the ‘Leave’ campaign’s victory. After the government had resigned, the Conservative
1. BBC News, ‘Brexit: All you need to know about the UK leaving the EU’, 1 February 2017, http://www.bbc.com/news/
uk-politics-32810887. The referendum turnout was 71.8%, with more than 30 million people voting. England voted
strongly for Brexit, by 53.4%to 46.6%, as did Wales, with Leave getting 52.5%of the vote and Remain 47.5%. Scotland
and Northern Ireland both backed staying in the EU. Scotland backed Remain by 62%to 38%, while 55.8%in Northern
Ireland voted Remain and 44.2%Leave.
2. See for example, Government press release, ‘Final reports in review of EU Balance of Competences published’, https://
www.gov.uk/government/news/final-reports-in-review-of-eu-balance-of-competences-published.
3. In the same tone see e.g. L. Siedentop, Democracy in Europe (Penguin Press, 2000), p. 102-121, about the differences
between the British and French legal and political cultures and the opinion by Stephen Kinzer after the referendum in S.
Kinzer, ‘Brexit – a stern rebuke to arrogant elites’, Boston Globe, 24 June 2016, https://www.bostonglobe.com/opinion/
2016/06/24/brexit-stern-rebuke-arrogant-elites/Uz5BLaweyL71MHWlTeWobL/story.html. According to Siedentop,
the French model of state, with its built-in predilection for power rather than authority, is the administrative model that
lies behind the EU Treaties.
4. See, D. Dinan, Ever Closer Union, An Introduction to European Integration (2nd edition, Palgrave, 1999), p. 65.
However, even this white paper commented the politically hot topic on sovereignty so that there is no question of any
erosion of essential national sovereignty.
26 Maastricht Journal of European and Comparative Law 24(1)
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