This is a synopsis of what really happened and what is coming in the short term. I want to dispel some myths and reveal some truths. Whatever relationship the UK is able to secure for the period “after the exit” is yet to discover but what people must understand is that “legally” nothing has changed and will not change in the near future. The UK is and will be part of the EU until July 2018 at the earliest – but is looking increasingly likely that a realistic date would be 1 January 2019 or later.
The referendum outcome and the status quo
What the UK population achieved on Friday morning was only a “declaration” that they no longer wish to be part of the EU. But, considering the turnout (70%) and the narrow margin with which the Leave campaign won (4%), it means that effectively less than 40% of the population decided the future of the 100% entitled to vote plus the millions of EU citizens and – astonishingly – non-EU immigrants that today are already subject to abuse and threatened with deportation by misinformed laymen. As some constitutionalists have said it is surprising that a simple majority at one given point in time was given so much power. In most legal systems major decisions that will affect the future of the country or its legal order need a reinforced majority and/or at least a 2nd vote to confirm the result.
As most of you must know by now the UK needs to trigger art 50 TEU to set things in motion and David Cameron, the current Prime Minister, has said he will not do it so nothing can happen (again – legally) before October unless he changes his mind in response to market, population or EU leaders’ pressures. Activating art 50 TEU is the only way the UK has to start the process to “leave” the EU, the statements from the EU have been clear on that. And, until the UK does leave (2 years after the negotiations are launched or later if the EU27 unanimously agree) not much will change.
So, legally speaking [and paraphrasing] the UK will continue to send those millions to the EU weekly (those cannot be reallocated to NHS, farmers, etc as the Leavers made you believe); must allow free movement of people; will continue to send its goods and services to the EU without extra tariffs and to import from it as usual, etc as the UK remains a Member of the EU in all its capacity. That means its rights and obligations remain though considerably weakened after the resignation of the UK representative of the EU Commission, Lord Hill. Reality may show otherwise as EU migrants will most likely suffer more open hostility and maybe de facto restrictions when trying to secure a job in the UK. But again, that is not legal and could lead to retaliation from the EU when the negotiations begin.
The national legal order
Here I want to be crystal clear, the UK cannot abolish nor suspend totally or partially the European Communities Act 1972 (or any piece of EU secondary legislation such as Regulations, Directives or Decisions and Acts/SIs that implement them) without breaching its obligations under the EU Treaties. This goes particularly to UK (ex-)officials such as Iain Duncan Smith that today said to the BBC that legal teams will be looking – as soon as next week – into bringing legislation to suspend certain parts of the Act or replace pieces of EU law – as you can imagine immigration-related are to be targeted first.
As I mentioned above the UK is a fully fledged EU Member State and whether it [Government and population] likes it or not EU law – and its interpretation by the EU Court of Justice – is still supreme and overrides national conflicting legislation. This is not something to take lightly as rushing into repealing or replacing EU law (or its implementation in the national legal order) before an exit agreement is reached could damage, beyond repair, the UK chances of getting the best exit deal possible. And we all know the UK will try to get access to the single market in those negotiations. Well, it can kiss it goodbye if they start disregarding EU law, the principles on which the EU is based on (the 4 freedoms, non-discrimination, equal pay and so many other) and to anger the EU leaders that ultimately will decide its fate (as in legal fate, the real one will be dictated by the market).
A word of caution for all involved
Despite the Mayor of London and the Scottish Prime Minister’s remarks stressing that EU nationals are welcome in London and in Scotland it is not far-fetched to anticipate that the public environment will become more hostile in the coming months as the layman is under the wrong assumption that from Friday 24 June all EU citizens became illegal and need to be deported. Now, it is the turn of Boris Johnson, Michael Gove and company to come out of their shell and explain the hard reality to those who voted Leave and, more importantly, to call for calm and tolerance towards those with different viewpoints.
They set in motion something so huge they are probably not even aware of yet. They need to tame the mass population and at the same time use a very diplomatic tone in their public speeches as the world is watching (and the EU with all its bureaucrats). Not only EU leaders will be watching but also those of nations that the UK wants to secure trade deals with so it is critical to use English politeness and French diplomacy (even though we all know they will not mean it).
To my fellow EU nationals living in the UK I say try to remain calm nothing has really changed yet but that does not mean your circumstances haven’t. If you feel unwelcome as many of you have expressed to me in the last 48hs please keep calm and if you want reassess your situation but be reassured that no one can kick you out of the UK in the foreseeable future. And if you feel down, as I do these days, think that the “under30 generation” has lost much more than we have …. they know it and I feel for them for this is their country and their fate was decided -mainly- by the “over50 generation” that will not be around for much longer to witness what they accomplished.
To the UK nationals reading I say we understand what you want but it will not happen overnight so be polite, accept we are here and we contribute a lot to you being the 5th largest economy in the world, don’t rush kicking us out as whether you like it or not we enrich your culture and we have made it possible for you to be the 5th economy. We will, though, always be grateful for the opportunities your country gave us and for the whole lot we learned from you.
To those that will be somehow involved in the extrication process (in case you are reading) I advise you take your time you need to get it right the first time, what has been done cannot be undone now so use the time-out period (now until October unless things change) to think long and hard what you want your country to look like in the future and draft a plan to act on it.
All we [those in the UK] can do now is try to continue with life as we know it or as it is presented to us from now onwards. Only time will tell if this was the right call to make.