On Thursday June 23, the people had their say. Over 17 million Britons voted to leave the EU. The outcome was clear, and should be respected.
Nevertheless, the future is shrouded in uncertainty. Months of campaigning failed to produce good answers to what have become urgent questions. The uncertainty relates both to the mechanism of withdrawal, and to the terms of any withdrawal agreement and future trade agreement with the EU. As no Member State has ever withdrawn from the EU, there are no relevant precedents. This is uncharted territory; these are interesting times.
The law – Article 50 TEU
Article 50 TEU, introduced by the Treaty of Lisbon, provides the mechanism for withdrawal from the EU.
It makes several things clear. A Member State may decide to withdraw ‘in accordance with its own constitutional arrangements’. In the UK, that decision is taken under prerogative powers by the Prime Minister of the day. Thus, it is for the Prime Minister to decide when to notify the European Council. The European Commission appears to have accepted over the weekend that it cannot (legally, at any rate) oblige the UK to trigger Article 50. The UK appears to be waiting until there is a new Prime Minister in place. There are suggestions that it might decide to wait until after the elections in France and Germany in 2017.
The Treaties cease to apply to the State in question only ‘from the date of entry into force of the withdrawal agreement’; or, failing that, two years after the Member State notifies the European Council of its intention to withdraw, unless the period is unanimously extended by all Member States. Thus, until a withdrawal agreement is reached, the State in question continues to be a full member of the EU, with rights and obligations intact. It is therefore very unlikely that the UK will be able to withdraw before the end of 2018. The withdrawal agreement is, on the EU’s side, concluded ‘by the Council acting by a qualified majority, after obtaining the consent of the European Parliament’. On the UK side, the agreement would be ratified in Parliament. The Article also provides that once a State has withdrawn from the EU, it may ask to rejoin ‘subject to the procedure referred to in Article 49’ (i.e. in the same way as any State wishing to accede to the EU).
But, Article 50 is silent on one crucial question. What if the UK activates Article 50, but then has second thoughts about the decision to leave the EU? If the Article 50 process is stopped, what is the UK’s status?
It is certainly possible that the UK might decide to stop the Article 50 process. Given the political upheaval of the last few days, it is unwise to try to predict the future. Nevertheless: a) the UK Government (of whatever hue) might decide that the terms of withdrawal are unacceptable and not in the best interests of the UK; b) Parliament (which has a huge majority of ‘remain’ MPs) might refuse to ratify the withdrawal agreement; or c) there may be a decision to put the terms of a withdrawal agreement to the people in a second referendum.
It seems staggering that there is no clear answer to the key legal question. It is vitally important – before the trigger is activated – to know whether the Article 50 process may be stopped, and/or whether the Article 50 notification may be rescinded. Professor Steve Peers has stated that ‘it’s not clear if the notification to leave can be rescinded once it is made’; and UCL’s Constitution Unit has pointed to risks inherent in rejecting whatever deal is on the table close the end of the negotiation period.
A House of Lords Report on the process of withdrawing from the European Union published in May 2016 provides the most authoritative analysis. Sir David Edward stated: ‘It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government.’ Professor Derrick Wyatt supported that view, with the following legal analysis: ‘There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a State withdraws, it has to apply to rejoin de novo. That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind.’
This seems to me to be the only sensible view. Article 50 is not designed to make it easy for a State to leave the EU, and the Article would surely be interpreted and applied so as to make it easy for a State that, after all, decided that it wanted to remain. So, while the clock does indeed start ticking once the Article 50 notification is made, it may well be that the process can, at the initiative of the UK, be stopped at any stage.
The law outlined above provides the very loose framework in which fundamentally significant political decisions will be taken over the coming weeks, months and years.
There has been a great deal of attention paid to the UK’s position. There is a clear mandate to leave. But there is no clear mandate in relation to the terms of the withdrawal agreement and any future trade agreement with the EU. The new Government (set to be formed in accordance with the internal machinations of the Conservative party) will not find it easy to formulate its negotiating position.
But it is important also to consider the EU’s position. The 27 are not united. They have different views about the future of the EU. They also have domestic political imperatives; in general, governing parties across the Continent are facing strong opposition from parties that are more sceptical about, or indeed openly hostile to, the EU. Governments might well seek to take steps to punish, and be seen to punish, the UK for a decision that they will want to be able to characterise as wrong-headed and counter-productive (while at the same time doing what they can to seek to safeguard their economic and political interests). The new Government will almost certainly not be able to get everything it wants. The Foreign Secretary Philip Hammond suggested over the weekend that there is likely to be trade-off between access to the single market and control of immigration; issues on which the various strands of the leave campaign are clearly divided. He was right to point out that many people who voted leave are destined to be disappointed. The decision to leave the EU might result in a withdrawal agreement in 2019, and a trade deal some years later, which offers the UK precious little.
The public have provided a clear mandate to the government to negotiate a withdrawal from the EU. But, the mechanics of Brexit are complicated; it will take time, and will depend on a range of factors outside the new Government’s control. There is a risk that many of those who voted Leave will be disillusioned about the outcome, and that trust in politics and politicians will be eroded still further.
This makes the need for clarity at this stage vital. It is important for people to understand what will happen next. It is incumbent on the UK government, and the EU institutions, to provide clear guidance; for one, by providing a definitive answer to the legal question posed here.
If it is right that the Article 50 process can indeed be stopped, there are profound implications. I would frame the issue in the following way. The referendum has provided the UK government with a clear mandate to negotiate a new agreement with the EU. Article 50 should therefore be triggered soon – though I understand the desire to wait until there is a new Prime Minister in place. Negotiations will then take place. If the legal analysis presented here is correct, it will be possible to stop the process at any stage during the negotiation process, with the UK remaining a part of the EU. That opens up a possibility for Parliament, or the people, in a second referendum, to have a say on the new deal, and to decide, perhaps two or three years down the line, whether we want to remain in the EU, or leave on the terms secured via the negotiation process.
This article was originally posted on the University of Bristol Law School blog.