Sunday 18 September 2016

EU - Bratislava and other matters

Updated 20th September


The European Council held an "informal" meeting in Bratislava this week - see Statement by Donald Tusk. The word "informal" is used because the UK was not invited even though the UK is still a full member of the EU.  The Bratislava meeting resulted in a Declaration and Roadmap in  which it is stated that:

"Bratislava is the beginning of a process. The coming formal European Council meetings will allow for concrete follow up on the themes mentioned here. The Heads of the 27 will meet informally at the beginning of 2017 in Valletta. The March 2017 celebrations of the 60th anniversary of the Rome Treaties will bring together Heads in Rome and will be used to round off the process launched in Bratislava, and set out orientations for our common future together."

Washington Post - "Don't write Europe off" - here Peter Wittig (German Ambassador to the USA) looks at the Bratislava meeting.

Guy Verhofstadt:

Former Belgian Prime Minister Guy Verhofstadt has emerged as the representative of the European Parliament in relation to Brexit - Independent 15th September 2016.  This appointment is in addition to the appointments of Michel Barnier (on behalf of the European Commission) and Didier Seeuws (on behalf of the European Council)- previous post 28th July.

At this point it worth recalling what Article 50(2) states about the role of the European Parliament. 

"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."

The European Council therefore requires Parliament's consent before it may conclude the withdrawal agreement.  This may open up further problems.  For instance, it is reported that a Brexit deal might be threatened with veto by four countries (the Visegrad Group) unless the UK agrees to allow their citizens the right to work in the UK -Telegraph 17th September   Whether such a "veto" is possible is questionable.  This is discussed by Darren Harvey on the EU Law Analysis blog where it is argued that a simple majority in the European Parliament will suffice - What role for the European Parliament under Article 50? 

Once the consent of the European Parliament is obtained, the withdrawal agreement is concluded by the European Council acting by qualified majority - Rules for qualified majority

The 2 year period under Article 50(3) should be noted here because it is extendable but only if there is unanimity in the European Council.


It may be too early to predict the exact stance the EU negotiators will take in relation to the UK in the event that Article 50 is triggered and negotiations commence.  Much may depend on the position adopted by the UK government as to what is seen as the future UK-EU relationship.  At the moment, a red line for the EU is freedom of movement of workers which is considered to be an essential condition of access to the EU single market.   Furthermore, ever since the UK referendum, the EU has maintained that there will not be talks about Brexit until Article 50 is triggered.

The UK government's position does not appear to be particularly clear at the moment.  The referendum campaign did not ask the British people about the relationship they would wish to see in the event of Brexit.  The binary nature of the vote - Leave/Remain - prevented such a nuanced outcome though it was clear enough from the campaign that concerns about immigration were high on the agenda even though neither the exact concerns nor any definite policies were clearly articulated.  The government may well have to choose between access to the single market (with freedom of movement) or no access to the single market so as to have "controls" of some form or other over immigration from EU nations.  A huge consideration here will be the border between the Republic of Ireland and Northern Ireland and also the Common Travel Area between the UK and the Republic of Ireland.  Also see Wall St. Journal - Brexit revives debate over Irish reunification


Those who argued for Brexit were keen on regaining control of not only the national borders but also law-making.  They claimed that "Sovereignty" had been lost to an "undemocratic" EU dominated by "unelected" Commissioners.    They saw the EU as a dominant force over our law via the enactment of numerous regulations, directives as well as decisions of the Court of Justice of the EU.  Even the most cursory glance at the legislative outpouring from Westminster and the devolved administrations gives the lie to this viewpoint since a mass of legislation is initiated by British politicians.

Brexit has raised serious questions about the respective roles of Parliament and Ministers in the British constitution.  Court proceedings are in train about the role (if any) of Parliament in triggering Article 50  - Law and Lawyers 19th July.  Writing in the Law Society Gazette 19th September, John Halford looks at this pending litigation and argues that Attempts to trivialise Article 50 litigation are unworthy

Another issue is what role (if any) will Parliament have in deciding (or influencing) the negotiating position of the UK government.  At the moment this appears to be in the hands of Ministers who, according to the Secretary of State for Exiting the EU, will keep Parliament informed but their negotiating position will not necessarily be declared in advance of Brexit talks.  See the House of Lords EU Committee where David Davis indicated that, even during private hearings, he might not be able to tell parliament everything - Minister questioned on parliamentary scrutiny of Brexit.

Much of this has an unsatisfactory feel to it.  Parliament must not be put into the position of being presented with a fait accompli once Ministers have concluded negotiations with the EU.  There is a vital constitutional need for Parliament to have its say, from the outset, in setting the negotiating position for the UK and for on-going scrutiny of negotiations including the ability for Parliament to influence the process.  All of this is expressed eloquently by Professor Derrick Wyatt QC on the OXPOL blog: The case for oversight of negotiation of the Brexit agreements.

Interestingly, the EU has a detailed agreement between the Commission and Parliament relating to information to be given to the European Parliament about negotiations including the handling of confidential information.  Against this, the UK Parliament appears to have a largely reactive scrutiny role rather than involvement in actual decision-making.

Difficult constitutional questions are therefore afoot relating to Parliament, the Executive, the very future of the UK as a Union of four (England, Wales, Scotland, Northern Ireland) and these combine with lack of clarity about where the government is heading on EU Brexit negotiations, whether Parliament will influence the direction of travel and when Article 50 will be triggered. 

EU Parliament - studies:

The EU Parliament has been preparing its ground as evidenced by the European Parliament's studies on the renegotiation by the UK of its constitutional relations with the EU - see Constitutional Affairs Committee  studies:


The studies are quite lengthy documents but make for good reading on what has become an exceptionally complex situation.

1 comment:

  1. Or was Fico 'referring only to those EU citizens living in the UK at the time of the referendum' as a Slovak Foreign Ministry source reportedly told the BBC: ?