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

There will undoubtedly be many members of the public thinking that a BREXIT vote on 23rd June to leave the European Union (EU) will mean that the UK is out immediately.    Nothing could be further from the truth since the legal process for withdrawal will be via Article 50 of the Treaty on European Union (TEU50) which was briefly looked at in BREXIT - Referendum - a few points (20th February 2016).  This is, as yet, an untested process and the "smart money" is on things taking a long time given the very extensive impact that the EU has had on national law.

On 8th March, the EU Select Committee of the House of Lords took evidence from Sir David Edward QC (a former Judge of the Court of Justice of the EU) and Professor Derrick Wyatt QC.  The Committee was concerned about the "What will Happens" if the UK actually does vote to leave the EU.  The session is available via Parliament's website - UK Exit Ramifications - and it well worth watching by anyone truly interested in seeing some of the problems that will be highly likely to arise as part of what will inevitably be highly difficult negotiations between the UK and the EU.  
I will respectfully refer to them as "the experts" because, as lawyers, that is what they truly are in this area.

Very basically, Article 50 (quoted below) gives 2 years to conclude an agreement about withdrawal but an extension is possible if the European Council, in agreement with the Member State concerned, unanimously decides to extend the period.  Two years will be a very tight timetable and an extension may well be needed but would it be given?  The experts describe how the negotiation process should proceed and offer their thoughts about the likelihood of a time extension.

There is a lack of clarity about what Article 50 actually requires.  It tells us that there is to be an agreement "setting out the arrangements for withdrawal" but the contents of such an agreement are not specified.  It may be that the Article 50 agreement does not need to cover all matters and there will be numerous areas to be addressed.  In particular, any UK-EU trading relationship may take many years to establish.  Then there are many other areas such as criminal justice - e.g. the European Arrest Warrant.  If not dealt with by the Article 50 agreement, such topics will have to be dealt with by separate UK-EU treaties.

Whether the UK Parliament will play a role in the negotiations is a question to which there is no clear answer.  International agreements are normally negotiated by Ministers but, at the end of the day, Parliament would have to approve whatever was agreed.  It would seem sensible that some mechanism is put in place to ensure that, as the negotiations proceed, Parliament is kept fully informed with a view to cross-party consensus being obtained at the end of the process.

A possible difficulty highlighted by the session is that the UK takes on the Presidency of the Council in the second half of 1917.  The Presidency rotates between member states on a 6 monthly basis.  The Netherlands tenure ends on 30th June 2016 and that is followed by Slovakia and Malta and then UK.  If the UK votes for BREXIT, the UK Presidency would have the difficulty that Article 50(4) would apply:

"For the purposes of paragraphs 2 and 3, the member of the European Council or of the

Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. ...."   

(Note: UK joins the TRIO SYSTEM this year).

Then there is the question of whether the Scottish Parliament would have to give its "legislative consent" to amendment of the Scotland Act.  The European Communities Act 1972 applies to Scotland and much of it is protected from modification by the Scottish Parliament because of the Scotland Act 1998 section 29 and Schedule 4 (Enactments etc. protected from modification).  Sir David Edwards considered that such consent will be required.  Professor Wyatt preferred not to answer this issue.  It will therefore be very important to see how the people of Scotland vote on 23rd June.

Withdrawal will require numerous legal questions to be addressed and the evidence session gives many examples.  As Sir David Edwards put it - "The long term ghastliness of the legal complications is almost unimaginable.  Certainly there will be people who will make a great deal of money out of it."

Please watch the evidence session.  It isn't very long and is worth the time - Parliament's website - UK Exit Ramifications

Previous 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)

Other Links:

The Justice Gap 17th March - Matt Evans "Leaving the EU and what it might look like"

: Article 50 :

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.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the

Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

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