Wednesday 15 June 2016

UK and the EU (11) - The event horizon approaches - What if it is Brexit

Event Horizon
Suppose that the outcome of the EU Referendum is Leave.  The UK will then start its journey along Brexit Road - a road without any detailed road map.  This post takes a somewhat speculative look at some of the matters that might arise along the way.  First of all, a couple of points of law:

1.   The referendum result does NOT bind the UK government or Parliament in law.  There is nothing in this Referendum Act (or elsewhere) to require - as a matter of law - the government or Parliament to either do anything at all or to do any particular thing.  For further discussion on this point see the article by David Allen Green in the Financial Times (£) - Can the UK government legally disregard a vote for Brexit?

2.   The Treaty on European Union (TEU) Article 50  sets out the ground rules for withdrawal.  Art 50(1) - "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

So, what are the constitutional requirements in the UK?  Since this referendum result will not, in domestic law, bind the government or Parliament it would seem that Parliament ought to somehow endorse the result.  Unless that is done there may not actually be a "Decision" for the purposes of Article 50.

The formal process set out in Article 50 does not begin until the British government gives notice to the European Council.  The notice would trigger everything including the 2 year (possibly extendable) timescale as set out in the Article - see Art 50(3).  Precisely what constitutes "notice to the European Council" seems not to be specified but it probably requires a formal communique of some sort from the British government to the European Council President.

The process of leaving - some issues arising:

Things would undoubtedly be very tricky POLITICALLY and there would be much to do BEFORE any formal Article 50 notice of Brexit is given to the EU.  

1.   The government will have to respond in an appropriate way to the Brexit vote.  That will require a sensible withdrawal plan setting out clearly the steps to be taken.  There would be little point posting a letter straightaway to the European Council giving notice of withdrawal as required by Article 50 (TEU). All that would do is kick start the withdrawal process without any clear idea of how the process would be conducted.  The government would do well to take a sensible period (say 6 months or so) to establish and consult about such a withdrawal plan.

2.   Parliament itself may feel the need to assert its right to be consulted at all stages.  That might entail some form of Parliamentary Committee being established to monitor and report on events as they unfold.

3.   Talks with the EU about the withdrawal process would be essential and these should take place before any notice is given under Article 50.  That would enable both sides to have a clear understanding of the process to be followed.

Article 50(2) requires that an agreement shall be negotiated in accordance with Article 218(3) of the TFEU and 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.

Article 218 TFEU sets out a procedure for negotiation of agreements: - "The Commission, ........, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team" - [Art 281(3) with some words omitted].

In passing, it can be noted that Art 218(11) provides that a Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties.

4.   A further point is Art 50(4) which would operate to exclude the UK from certain discussions in the European Council including any decision on whether to extend the 2 year timescale.  Particular clarity would be required on the matter of participation.  Crucially, this could make it very difficult (if not impossible) for the UK to assume the EU Council Presidency planned for July 2017.

5.  Before giving formal notice, the UK would have to have some clear idea about whatever trading and other arrangements it wanted to have with the EU in the future.  Similarly, the European Union would need to have a clear view as to what it was prepared to accept.  At least that would form a starting point for Brexit negotiations.

6.  Before giving formal notice the British government would have to have a very clear understanding of the position of the devolved governments in the UK.  As an example, if the referendum result was a Brexit majority in England but not in Scotland then what would happen?  Even to ask such a question is to get a glimpse of the Pandora's Box which may open.

7.  Would the approval of Parliament be required before giving formal notice of withdrawal?

Article 50 is not in play here since the Article states that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

Negotiations to enter into a new Treaty are normally the province of Ministers who negotiate under prerogative powers (see Ministry of Justice Consultation Paper 26/2007).  Parliament is involved in the ratification of treaties - see Part 2 of the Constitutional Reform and Governance Act 2010.

Negotiations about withdrawal from the EU Treaties would be conducted by (or on behalf of) Ministers.  Parliament would inevitably become involved since the European Communities Act 1972 would have to be repealed (and replaced with appropriate new legislation).

At least, all of this seems to point to a political need to obtain the approval of Parliament before entering into formal negotiations.   In any event, Parliament would expect to have its say on the outcome of any talks with the EU prior to the time of formal notice.

Could the UK give notice under Article 50 but rescind the notice later?

Art 50(5) - If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

It seems that there is nothing legally to prevent the UK rescinding its notice to quit but it is a moot point whether this situation would ever arise.  It appears that it would be a matter for agreement between the UK government and the EU.

Could a Brexit Vote lead to a General Election?

One possibility is that the Prime Minister resigns having been unable to win his Remain argument.  The most recent Prime Ministerial resignation is that of Tony Blair in 2007.  HM The Queen appointed Gordon Brown as Prime Minister and he held the office until the General Election in 2010.  Thus, a Prime Ministerial resignation does not trigger a General election.  (Whether it should do so is another issue).

The Fixed-Term Parliaments Act (FTPA) determines when there may be another General Election.  The FTPA is discussed in UK and the EU - No. 10

Essentially, the next election will be in May 2020 unless a general election is called because one of the procedures in section 2 of the FTPA is applied.  These are basically - (1) that the House of Commons votes for an early election (note the two-thirds requirement) or (2) that there is a successful motion of no confidence in the government and that is not reversed within 14 days.  Parliament cannot be otherwise dissolved.

The only other way to a General Election would be for Parliament to repeal the FTPA and, as part of doing so, put other arrangements in its place.  (Note: I do not think that simple repeal of the FTPA would result in a return to the "Prime Minister can call the shots" system that existed before the FTPA though Parliament could legislate for such a system).

Could a Brexit vote be ignored or not acted upon?

It would be politically impossible to simply ignore a Brexit vote.  The more likely approach will be that Ministers will enter into talks with the EU - (not at this point formal negotiations) - to see what the EU position is.  Similarly, they will see what the view of the devolved governments is.

It is quite possible to envisage scenarios where the government (or Parliament) might think that the result was not decisive enough. An article by Lord Lisvane (a former Clerk of the House of Commons) and published by the Constitution Unit suggests this possibility -

"If the result is narrow and the turnout is low then the possibilities become a lot more complicated. Remember that the outcome of the Scottish independence referendum was 55.3 per cent No, 44.7 per cent Yes, on an extremely high turnout of 84.59 per cent. If the result on June 23 was, say, 51 to 49 in favour of Leave on a turnout of 55 per cent then that would move quite a lot of goalposts – especially if Scotland had voted to stay and England to leave. The Prime Minister could say that such a result is not sufficiently decisive and so we will negotiate heads of agreement on withdrawal, and then have a second referendum to decide whether to trigger the exit process on that basis."

How would Brexit itself be handled?

Legislation will be necessary to deal with the vast volume of legislation involved in the UK's membership of the EU.  The aim of any such legislation would be to implement the final withdrawal agreement by whatever date membership ceases.  It would not necessarily involve the removal from domestic law of everything linked to the EU since the withdrawal agreement will have to deal with the on-going UK-EU relationship.  It is perfectly possible to envisage a number of matters remaining in place such as the European Arrest Warrant system.

To cope effectively with what is likely to be a lengthy and complicated process, it seems likely that Parliament will enact enabling legislation and leave it to Ministers to make implementing legislation.  I have a vision of yet another Act amounting to an enormous Henry VIII power !


Withdrawal from the EU will be a legally interesting process but it is potentially a nightmare politically.  The UK government would need to obtain the best possible deal for the British people.  The EU will obviously act (as it must) in its own best interests.  What those are in these circumstances must be a matter of speculation at the moment.

Those who have read the above may well think that Brexit is a process best avoided.  Alternatively,   you may think that the difficulties are not insurmountable and that travelling along Brexit Road is necessary.   You might think either of those things - I cannot possibly comment! 
: Earlier posts in this series :

20th February - Brexit ~ referendum ~ a few points - including link to the deal secured by the Prime Minister

UK and the EU (1) - History and Background

UK and the EU (2) - The EU Treaties - key points

UK and the EU (3) - The Parliament, the Commission and the Court

UK and the EU (4) - Freedom of movement of persons

UK and the EU (5) - Referendum - People need facts not slogans (Lord King)

UK and the EU (6) -Will Brexit be a simple process?

UK and the EU (7) -Your Rights

UK and the EU (8) - Trading bloc or emergent State

UK and the EU (9) - A monumental referendum - information to assist

UK and the EU (10) - What if it is Brexit

1 comment:

  1. I've been thinking about when notice under art. 50 would be given. While I have no fresh insights, I thought it might be worth pointing out that others are thinking about this too: