One thing is for certain, it will be extremely complicated, and there is a great deal of uncertainty about how it will work in practice and legally. The issues at stake include, what trade tariffs Britain would face for different products and services; what rights to movement EU citizens would have into Britain (and vice versa); and how much of the financial regulation initiated in Brussels would still apply to the City of London
The Legal Route
The UK would have to follow the procedure in Article 50 of the Treaty on European Union (TFEU) which is the only exit route legally available. Some advocates of Brexit argue that discussions with other member states could start informally, without Article 50 having to be invoked, however David Cameron has ruled this out as being undemocratic.
Article 50 is part of the Lisbon Treaty governing membership of the European Union. It states that:
‘Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.’
It spells out the process of withdrawal.
Once a country has formally declared that it wants to leave, it must then negotiate with the 27 other members – for up to two years – about the terms of departure.
What will the negotiations look at?
Negotiations would begin on two agreements: a withdrawal agreement and a comprehensive trade agreement of some kind that would govern future relations between the UK and the EU. A new and comprehensive trade agreement requires the consent of all 27 national Governments of the EU side and would take time to negotiate, given it would require ratification in some cases by National Parliaments, such as the French National Assembly, the German Bundestag and all seven Belgian Parliamentary Chambers.
Article 50 does not specify whether these negotiations should be simultaneous or consecutive. This would be a matter for negotiation. However, ideally the two agreements would come into force at the same time, allowing a smooth transition from EU membership to any negotiated new relationship.
There is a special procedure for negotiating a treaty between the EU and a member state. Any severance terms have to be ratified both by the European Council and parliament in Strasbourg (through various complicated voting arrangements). The European Commission formally negotiates the agreement on the EU side, but national Governments will be in the driving seat, with each state having its own political imperatives.
The UK would, at the moment Article 50 is triggered, be excluded from EU discussions on the nature of the exit negotiations. These would be settled by the remaining EU Member States.
It remains unclear as to how much the UK government will also be able to be involved in other EU business going forward. The UK would of course definitely want to have a say in certain things during this time, for example sanctions against rogue states such as North Korea, as well as economic issues affecting UK industry, such as duties on imports of dumped Chinese steel. However there is certainly an argument that the UK might be excluded from key decisions, following which the UK could be presented with a ‘take it or leave it’ deal.
The implications are not confined to our dealings with Europe. The UK’s trading relationship with countries around the world, for instance, is bound up in agreements reached by the EU. These would cease to apply to the UK in the event of our departure from the EU. Replacements for these would therefore also have to be negotiated.
Can the two year period in Article 50 be extended?
Yes the two-year period in Article 50 could be extended but there is no guarantee.
The EU retains control over the timetable and any extension requires the agreement of all 27 Member States. If there was a veto it would leave the UK without any agreement (and the loss of security benefits such as European Arrest Warrant which has allowed 7,000 people to be extradited from the UK to face trial and has resulted in just over 1,000 people being returned to the UK to face justice here). However for fairly obvious financial and political reasons an extension would very likely be agreed in the case of UK withdrawal.
As to how long these negotiations might take, the Open Europe think tank has published some comparative information on how long it takes to negotiate various types of agreement. On average it is between four and seven years. If one then looks at agreements negotiated by countries between themselves outside the EU, they seem to take between four and nine years. Boris Johnson has cited the EU-Canada Trade Agreement (CETA) as a comparator, but this has taken seven years so far and still has to be ratified by the Council, the European Parliament and National Parliaments. All this shows one thing, that withdrawal is likely to take a long time.
The case of Greenland shows that even mildly complicated issues take time. The population of Greenland is 55,000 and they were looking at mainly fishing and transitional rules, yet it still took two years to negotiate. The UK would withdrawing from the EU itself, something never tested before, and covers a vast number of areas, such as banking and insurance services, free movement, and most importantly access to the single market. There would be no quick-fix trade agreement. There would be no quick-fix for immigration. Invariably the time frame would therefore be longer rather than shorter.
Does a vote to leave mean the UK is no longer an EU member?
Some people seem under the impression that a vote out means that, with one bound, the UK will be free both politically and legally from the EU. However a member state remains a member of the European Union whilst negotiations are on-going and until the withdrawal agreement takes effect. So during the two-year period, and for however long it is extended by agreement, the UK’s legal rights and obligations remain. This includes being bound by any new EU legislation.
What would happen domestically to the UK’s legal framework?
Disentanglement domestically from EU law would be far from straightforward; thousands of pieces of EU legislation are currently part of UK law.
The UK Parliament and the devolved administrations would need to consider how to replace EU laws, including how to maintain a robust legal and regulatory framework where that had previously depended on EU laws. It is not simply a question of simply repealing the European Communities Act. As a matter of EU law the directly effective provisions of the treaty have direct effect in law and must be applied by the UK courts irrespective of the European Communities Act. Lawmakers would have to go through the regulations and statutory instruments one by one to see whether they give effect to EU law, deciding how EU law might be replaced and enacting into law everything that they wanted/needed to keep in.
As an example, if the UK does withdraw then we are no longer a member state. Our nationals are no longer nationals of a member state. That much is clear. What is not clear is what the rights are of nationals of other member states who have acquired rights here? Do we recognise someone’s right to permanent residence? What transitional rights should be put in place for somebody who has been working in the UK for a number of years and has children at school?
Also it is worth remembering that for every example of an EU migrant in the UK there is an example of a UK citizen elsewhere. It is estimated that whilst there are about 2 million people from other EU countries who live in the UK, a similar number of Brits live in other EU countries. They all currently enjoy a range of specific rights to live, to work and access pensions, health care and public services that are only guaranteed because of EU law. There would be no requirement under EU law for these rights to be maintained if the UK left the EU. Should an agreement be reached to maintain these rights, the expectation must be that this would have to be reciprocated for EU citizens in the UK. Similarly there are important implications for Gibraltar and the border with Spain, the common area of travel with Northern Ireland and the Republic etc.
Could the UK change its mind after a vote to leave?
Although the current government position is that a vote to leave will be final, there is nothing in the wording of the EU treaties to say that you cannot change your mind.
There is the specific provision in Article 50 to the effect that, if a state withdraws, it has to apply to rejoin de novo, but it would seem possible for the UK to change its mind before withdrawal, for example, if there is was change of UK Government. However whilst this is an option, the question of where that might leave the various agreements already concluded by the UK, including its various opt outs such as in the area of Justice and Home Affairs, is anybody’s guess. Certainly the deal David Cameron struck in Brussels would not come into effect if Britain votes to withdraw
Author: Matt Evans
Matt Evans is the Director of the AIRE Centre, a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Previously he was the Managing Solicitor at the Prisoners Advice Service for 6 years and worked at a number of leading legal aid firms including TV Edwards, Hickman and Rose and Hodge Jones and Allen.