One of the great difficulties for the general public trying to make sense of the competing arguments for and against Brexit has been the constant and intense climate of Project Fear which the Remain campaign delivered at every opportunity. The prospect of leaving the embrace of the European Union to carry on an economic and political life outside that union was constantly being referred to by commentators as a divorce by Britain from the EU. Indeed, it was described as a "messy divorce". Using the analogy of a divorce was probably a good way of personalising the endeavour so that it conjured up an instant image for the public which was recognisable to those less involved in the intricacies of politics and economics of the process.
In several senses Brexit could be described as a divorce. The only part missing in the analogy was an adequate description of the marriage and the partners in that marriage. The marriage of the UK with the EU was a marriage between a nation-state and a polygamous partner with twenty-seven other nation-state wives led by a group of unelected Commissioners. The UK became part of the polygamous relationship long after the first marriages had been completed. There were two "senior" wives in the marriage when the UK joined, the French and the Germans, but neither were very accepting of the UK. There were many other "junior" wives in the relationship as well but played only a minor part in the marriage.
When the UK joined it stayed in its own house and carried on with its own business, despite the marriage. This was resented by the Commission and, to varying degrees, the other wives. The Commission grew increasingly abusive to many of its wives with the consent and support of the senior wives. Greece and Italy had their elected officials replaced by officials appointed by Brussels. The Spanish and Portuguese electors found themselves overruled and a program of austerity thrust on them. The Dutch, French, Irish and Danes voted against the abuse by the Commissioners and found that their objections were overruled and new referenda called until they 'got it right' and bowed to the will of the Commission. The Italians found their ability to sustain their banking system blocked by the same Commission.
Many marriage counsellors find that abuse in a marriage is more than just physical abuse. Psychological abuse is often more prevalent and important. Psychological abuse occurs when a person in the relationship tries to control information and opportunities available to another person with intent to manipulate that person's sense of reality or their view of what is acceptable and unacceptable. Psychological abuse often contains strong emotionally manipulative content and threats designed to force the victim to comply with the abuser's wishes. The object is a learned dependence on the abuser and a fear of separation because of that dependence. All abuse takes a severe toll on self-esteem. The abused person starts feeling helpless and a diminished sense of self. In addition, most mental abusers are adept at convincing the victim that the abuse is his fault. Somehow, the victim is responsible for what happened.
It became increasingly clear that the introduction of the Euro as a common EU currency and the creation of the Schengen Zone allowing free movement of peoples within Europe was not desirable or acceptable to the UK. It was able to create opt-outs for these, much as the Danes won the right to have protections from the effects of the Maastricht Treaty which the Danes initially refused to ratify. There was a great deal of abuse of the UK for obtaining a rebate from the budget and its opt-out of the Euro and Schengen. There was even more abuse hurled at the Danes until they were persuaded by the Edinburgh Agreement which allowed Denmark to opt out of the Euro, to opt out of the European Defence Agreement and to retain some powers over its judiciary.
When the UK raised all these issues it insisted on a reform of the EU terms of marriage. The EU refused to make any meaningful adaptations. Its borders were swamped by refugees and economic migrants invited in by the Germans and they had no realistic plan for controlling their influx. In addition to being an abusive marriage partner the EU demonstrated that in the face of the Russian moves in the Ukraine and the massed hordes of refugees on its borders it was impotent. The UK public, having been given an opportunity to state its wishes in a referendum, voted against the continuation of an abusive, polygamous marriage with a feckless partner in an advance state of erectile dysfunction.
They voted to withdraw from the marriage despite a campaign of fear-mongering and exaggeration by the Remain camp. Now, the UK is in the process of removing itself from the marriage. It is preparing for the divorce. Divorce, however is rarely straight-forward. As the first step the partners discuss the procedures for divorce (property rights, debts, liabilities, etc.) Then they proceed to the issuance of a court recognition of the divorce with a Decree Nisi. With the issue of Decree Nisi the Court accepts that the marriage is no longer viable. It is an order of the Court confirming that the grounds for the divorce have been proved and that the marriage has irretrievably broken down. In terms of the EU Constitution that means the issuance by the UK Government of a notice of the invocation of Article 50 of the Lisbon Treaty. It says
"1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period." [i]
The invoking of Article 50 by the UK Government is the equivalent of a Decree Nisi under UK law. It certifies that the marriage has broken down and that a divorce is underway. The UK and the EU will have to meet on the matters raised under Article 50 to reach decisions on the points raised. However, engaging in Article 50 is not the same as leaving the EU. It states that a breakdown has taken place and the divorce proceedings are underway. For a full break with the EU the UK is obliged to repeal or alter the European Communities Act 1972
"The UK is a 'dualist' state, unlike many continental European countries, which are 'monist'. In dualist states a treaty ratified by the Government does not alter the laws of the state unless and until it is incorporated into national law by legislation. This is a constitutional requirement: until incorporating legislation is enacted, the national courts have no power to enforce treaty rights and obligations either on behalf of the Government or a private individual.
Under the European Communities Act 1972 (ECA) Parliament voluntarily gave effect to the UK's obligations and duties under the former Community and now EU Treaties in national law. The ECA defines the legal relationship between the two otherwise separate spheres of law, and without it EU law could not become part of national law.
Section 2(1) provides:
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression "enforceable EU right" and similar expressions shall be read as referring to one to which this sub-section applies." [ii]
Thus, in order for the break with Europe to be final and binding (in effect a Decree Absolute) Parliament will have to revise or repeal the provisions of the European Communities Act 1972 (ECA).