The EU referendum could be held as early as June so clarity is needed about what will happen in the event of a vote to leave. In this post Alan Renwick explains Article 50 of the Lisbon Treaty which sets out the procedure for leaving the EU. Under it a second in/out referendum of the type floated by Boris Johnson among others is not possible. Anybody suggesting that voters can vote to ‘leave’ safe in the knowledge that they can later change their minds is either playing with fire or manipulating voters disingenuously.
2016 looks likely to be the year in which voters get to decide whether the UK will stay in the European Union. If David Cameron secures a deal with other EU leaders next month, we can expect to know the referendum date shortly afterwards. Then the key players will settle their positions and decide their core arguments. In the run-up to this crucial moment, we need clarity as to what the options are and what will happen in the event of a vote to remain or to leave.
The implications of a vote to remain are easily predicted: the UK will stay in the EU, with whatever tweaks to our terms of membership David Cameron has negotiated. But what happens in the event of a vote to leave? That is much less obvious. This post sets out the processes and probes their implications.
The legal framework
We might start with the EU Referendum Act, which received royal assent just before Christmas. It sets out the referendum rules, so could be expected to define the effect of a vote either way. Alas, it does not: it makes no provision as to the referendum’s legal effect.
That is because, strictly speaking, it has no legal effect. It will be purely advisory and, in law, the government could simply ignore the result. In this it contrasts with the legislation for the electoral system referendum in 2011, which required the minister responsible to enact the result. But it is the same as the legislation underpinning the Scottish independence referendum of 2014 and, indeed, the referendum on membership of the Common Market in 1975.
Whatever the legal position, however, the political reality is that the government will have to respect the result. If the vote is to leave the EU, the Prime Minister will announce that the UK will indeed leave.
But that departure will not happen immediately: first comes a period when the UK can negotiate its future relationship with the EU. And here the process is regulated by law – specifically, by Article 50 of the EU’s Lisbon Treaty.
The details of Article 50 really matter
Article 50 sets out the procedure to be followed if a country wishes to leave the EU. Its terms are important, so the box below gives the full text. In summary, the withdrawal process starts with a statement from the Prime Minister to the European Council (the collection of EU heads of state and government). Then a negotiation begins, with the 27 continuing members on one side of the table and the UK on the other. For a deal to be done, both sides need to agree. On the EU side, that requires support from a qualified majority of the continuing members (specifically, the so-called ‘super qualified majority’: at least 72 per cent of the continuing members, representing at least 65 per cent of their population) and from the European Parliament. If no deal is done within two years, the UK’s membership automatically ceases, unless the 27 vote unanimously to extend the negotiation.
Article 50 of the Lisbon Treaty
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.
This has implications for two important things: the balance of power in the negotiations; and the possibility of holding a second referendum.
The balance of power
Put simply, Article 50 gives the 27 continuing member states predominant power. That comes partly from the fact that, according to Paragraph 4 of Article 50, the withdrawing state no longer counts as a member of the European Council for the purpose of the negotiations. But mainly it comes from the guillotine imposed by the two-year deadline and the requirement for unanimity to extend that deadline. The negotiations will be long and contentious. An extension beyond two years might well be needed – but any one of the 27 could block that if it didn’t get its way on its own priorities.
We should not overstate the power imbalance here. Writing in Prospect magazine last month, Bronwen Maddox said, ‘Clause 4 says that after a country has decided to leave, the other EU members will decide the terms—and the country leaving cannot be in the room in those discussions. Repeat: we’d have no say at all on the terms on which we’d deal with the EU from then on, and no opportunity to reconsider.’ That isn’t right: Clause 4 says only that we wouldn’t be in the room when the EU decides its position in the negotiations; but of course we would be in the room when the EU is negotiating with us. Furthermore, the UK is a country with clout, and it could use that to extract some advantage.
But the imbalance is nevertheless real and great. Even one Eurosceptic blogger has commented that ‘Article 50 is not really a process designed to facilitate the exit of a nation state from the EU – it is an attempt to build a process that is so risky, politically and economically, that no country would dare invoke it’. Furthermore, Professor Steve Peers from the University of Essex, writing in a detailed post in 2014 that deserves to be read carefully, suggested that this imbalance may be greater even than it appears on the surface. It might be thought that the unanimity issue is not too serious: unanimity is not needed for a deal to be signed, so, while any of the 27 can stop an extension to the negotiation period, none alone can prevent the other members from cutting a deal within two years. As Peers points out, however, things are not necessarily so simple. While a deal can be struck by qualified majority under Article 50, some of the content that the UK would want for such a deal – including aspects of a free trade agreement – would need to be ratified by all member states.
Could there be a second referendum?
So if UK citizens vote to leave, it is unclear exactly what kind of future they are voting for. This raises the question of whether it might be more appropriate to hold a second referendum, following the negotiations, to see whether voters accept the deal. The Constitution Unit has long argued for a two-referendum approach to Scottish independence, and the same logic might be said to apply to EU membership as well. George Osborne recently reiterated the government’s position that there will be no second referendum. Nevertheless, Boris Johnson signalled interest in such a plan last summer, and the columnist Simon Jenkins has given it strong backing. The idea appears first to have attracted attention after it was suggested in a blog post by Dominic Cummings, leading light in the Vote Leave campaign.
But what kind of referendum are these people proposing, and is it actually possible under Article 50? Some seem to suggest that the second referendum could be on improved terms of EU membership. The Sunday Times story that communicated the London mayor’s thoughts said, ‘Johnson has told friends that a “no” vote is desirable because it would prompt Brussels to offer a much better deal, which the public could then support in a second referendum.’ The idea seems to be that we could retain EU membership, but on much more radically changed terms than are currently on offer.
But that is not possible. It would require a negotiation for revised membership terms, when what Article 50 provides for is a negotiation to cease membership. It might be suggested that it’s the politics that matter, not the rules – if EU leaders want to negotiate revised membership (and all do say they want the UK to stay in), they could do so. But the political reality in the UK after a vote to leave would require the Prime Minister to negotiate the terms of departure. He or she would have a mandate to do nothing else. As Steve Peers puts it, ‘those who claim to support invoking Article 50 to trigger renegotiation either have a hidden agenda or are quite naïve about what they are suggesting’.
What both Cummings and Jenkins appear to have in mind is, rather, a referendum on whether to accept the terms of exit. As Cummings unabashedly admits, he proposes this prospect in order to persuade waverers to vote ‘leave’ at the first ballot, safe in the belief that they could always change their minds later. Matthew Parris has endorsed just that thought: ‘The terms on which we leave could affect us deeply. So I’ll stick my neck out. If Britain votes to leave, there will have to be a second referendum. And we will have to have the opportunity to relent of our first decision.’ Notwithstanding official denials, James Kirkup said a few months ago that this reflects what some senior people in government are thinking.
So these authors are suggesting a referendum to choose between leaving on the negotiated terms or not leaving after all. The trouble with this is that Article 50 offers no mechanism to withdraw a notification of intent to leave. We could have a second referendum (the UK parliament can call a referendum on anything it likes), but a vote to reject the negotiated terms would leave us in legal limbo. The European Court of Justice might rule (if asked) that an ability to withdraw such a notification is implied by Article 50 – but it might equally well rule that it is not implied. Some might say again that political realities will take over: the 27 other member states all want us to stay, so, if we indicate a change of heart, they will allow our withdrawal declaration to be quietly forgotten. Well, perhaps. But that would again require unanimity – either to amend Article 50 (and we know how much effort is required to change an EU treaty) or, in effect, to extend permanently the two-year negotiation window. Hence, any member state could drive a hard bargain, potentially one detrimental to the UK.
Anyone who suggests that unsure voters can vote to ‘leave’ at the initial referendum safe in the knowledge that they can later change their minds is either playing with fire or manipulating voters disingenuously.
In fact, the only second referendum whose effect would be clear is one where the options are to leave on the terms that have been negotiated or to reject those terms and hope we can get something better before being forced, under the terms of Article 50, to leave without having negotiated any terms at all. That might strengthen the UK’s negotiating hand – but it would also be fraught with risks. The Greek government tried something similar last summer but ended up effectively accepting the original deal anyway, having recognized that other Eurozone countries would budge no further. And everyone agrees that leaving without negotiated terms would be crazy: for example, leaving with no free trade agreement in place would, under World Trade Organization rules, require imposition of tariffs on some UK–EU trade. In any case, such a referendum would be nothing like the one Cummings and others have floated, offering no comfort to waverers at all.
All in all then, Article 50 makes life very difficult for any country wishing to withdraw from EU membership. We might think this deliberate and take it as yet another symptom of perfidious Brussels. But we should remember that our own government and parliament signed up to it. We should recognise also that it is the reality that we will find ourselves in in the event of a vote for Brexit.
About the author
Dr Alan Renwick is the Deputy Director of The Constitution Unit.
ZLATAN IBRAHIMOVIC has refused to rule out a potential move to Napoli this summer from Manchester United.
traordinary rant, saying: With all respect to LCFC fans鈥?I feel betrayed by Ranieri and let down by the club.
Hello Dr Alan, many thanks for sharing your views about what happens if we vote for Brexit? But two years down the lane, and Brexit has turned out to be a failure for so many reasons. The whole idea behind Brexit was to safeguard our interests, but the way it has turned out is quite the contrary. We leave the EU, but remain in the Single Market (SM) and Customs Union (CU). Not only do we lose the sovereignty Brexiters perceive as a result of being in the SM & CU, but we also lose our current say in how the SM & CU are run, and we still pay into the EU budget. All the UK ‘gains’ is the inability to influence the rules and laws we have to follow as part of the SM & CU.
I cannot imagine why you are trying to drag this issue up again. It is hardly relevant now that things have moved on to negotiations for the UK to leave the EU. However your inaccurate assertion must not be left unanswered. The EU accounts have not been qualified by the Court of Auditors ever since 2006. It is also untrue to say ” the EU is unable to account for how at least 2% of its budget is spent.” I think you are referring to “errors in expenditure” – in other words payments which have been made without conforming precisely with EU regulations. This is nothing to do with the accuracy of the EU accounts, which have as I say been passed as true and correct. As the Court of Auditors points out, the blame for the errors in expenditure ultimately lies with those who made incorrect claims for EU funding. Although, of course, better controls should prevent those errors happening in the first place.The problems occur when the money leaves Brussels for spending by member states – and that’s actually how 94% of all EU money is used – in EU countries on policies and programmes for the benefit of EU citizens.
As a matter of interest the auditors have found that one area of EU expenditure not affected by material error was the EU’s spending on its own administration. This actually shows that the European Commission has a tight control on its internal finances.
Errors in expenditure are, of course, unacceptable. However, all governments across the world have a percentage of error of this type. US government accounts, for example, have had error rates higher than 5%. The UK government accounts also had a worse error rate than the EU. The EU’s goal is to reduce its error rate to 2% or less and they are getting close to this figure.
I hope you are now clear on this. .
I appreciate that this is a long time after the event but the reality is the EU accounts have been qualified every year since 1994 to date.
This qualification centres on the fact that each year the EU is unable to account for how at least 2% of its budget is spent.
If you know an accountant ask them what it means to have your accounts qualified.
Here’s a hint; it casts doubt in the credibility of the organisation’s finances.
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“Independence”? Britain is already an independent, sovereign country that in said sovereignty entered an international compact. If the British people want out, that’s one thing, but deliberately not following (i. e., abrogating) a treaty to which you agreed to be bound would call into question your willingness to honor other agreements past, present and future.
The EU, channeling Jay-Z: “We got 99 problems but a Brit ain’t one.”
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This is complete Remain propaganda and an insult to the UK people. Article 50 does not necessarily have to be followed, if the people clearly vote to exit the EU we should be able to use our own legislation process to create a new law of independence if existing legislation lacks the powers to do so.
If we vote to leave then a two-year negotiation will begin with no certainty to its outcome. At the end of the two years we will either have a deal we can accept or one that we would not want to accept. Surely it would not be intelligent to settle for a bad deal if further negotiation might result in a better one? so it would be unwise to use our veto to conclude negotiations. That means the 27 other member states could hold us to ransom – “OK. If you don’t want to negotiate any more then just leave. It will be worse for you than us. You will have 27 problems. We will have only one.” Also the initial two years will create great uncertainty throughout the business world who will be left hanging around wondering what will happen and that will not endear us to them and any extension that we would be unwise to refuse would make matters worse. These negotiations could drag on for years; far worse for us as outcasts on the sidelines than the other who will just get on with the staus quo.
I think the Brexit camp have convinced many of the Brexiteers that we are far more powerful than we actually are. We seem to be arrogant enough to assume that we can survive without the EU but that they can’t survive without us. The fact is that Britain is a monumental pain in the EU backside like an abscess that needs to be lanced. Nothing is ever good enough for us and we seem to think that if we want something then we have a right to get it and if we don’t then we throw a tantrum like a little boy weeping in the playground “It’s my ball and if you won’t play my way then I’m not playing and you can’t have it.” I think that they have tried to be very reasonable by giving Cameron his reforms but that if out-negotiations go badly then finally they will lose patience . “Take it or leave it!” and the Brexit camp might just be stupid enough to cut off its nose to spite its face and leave with a bad deal.
If we vote to remain then we know what we are going to get and it’s not THAT bad and we can try for further improvements. If we vote leave then we don’t know what we are going to get and it might be disaster. The more I think about it the more scary it gets!
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I think this point was dealt with some time ago in this thread, the point made being that it would be technically possible for a British government to ignore the decision of a referendum to leave the EU but politically impossible. The Prime Minister has been unequivocal in stating that he would regard the referendum result as an inescapable instruction from the British people to act in accordance with their decision. How on earth could he claim any mandate to do otherwise? This does not mean the application under Article 50 need go in the day after the vote but I cannot see how the government or parliament can justify any meaningful delay.
Only after an application by The State. Not Joe Public via referendum.
1. ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.’
That isn’t Joe Public via a referendum but a Prime Minister with the backing of Parliament. So a vote leave result doesn’t mean that Parliament will allow or condone such a withdrawal. It will just mean that Parliament is mandated to such a course permanently. This then empowers our Parliament to seek much more from the EU without withdrawing.
Of course the people can either accept the improved terms, or insist, at elections, on invoking their referendum at any time.
I see nothing in this that demands that any Government must comply with a referendum result.
Am I wrong?
First of all do not equate membership of the EU single market with any of the 53 trade agreements the EU has concluded with “third countries” over the years. That would be “apples and pears” writ large.
Secondly you make a good point about the likelihood of changes in the EU setup in future. Any such would of course have to be agreed by the Council of Ministers – not just the Commission – and if they involved any meaningful transfer of powers from the UK government to the EU that would immediately trigger a referendum of UK voters under existing law. However I would put it to you that such changes are likely to include much more in the way of “subsidiarity” than heretofore. The powers that be in the EU are not entirely stupid and can see as well as we can the unrest arising in many countries as to the status quo. The rise of Marine le Pen in France to name just one trend. They will realise that change is essential and may well be seen to be in the interests of the UK. Getting out altogether and leaving the future of our continent to others does not seem to me to be the British way.
I would be very surprised if we got away without any “membership subscription” as you call it. However, are the EU looking to charge the US a “membership subscription” if their deal goes through? I know they are a much bigger market and further away from Europe but it would be mentioned when negotiating and could help reduce any fees we are imposed with.
The “the EU buys 45% of Britain’s exports whereas the UK accounts for little over 10 per cent of exports from the rest of the EU” argument can’t be ignored but if used to negotiate better terms for Europe than for the UK would basically be bullying – but that is normal in those types of negotiations. Let’s not forget though that apparently the Pound is going to devalue by as much as 20% if we leave (according to the Stay campaign anyway). This will hugely boost our exports as any import duty imposed by Europe will be more than wiped out by that.
ganadg1 makes a good point with “Even if the result to stay in were to happen, who knows what changes would take place in the EU? It is reasonable to assume that the Commisson might have some changes in mind that they are holding back until after the referendum that could have serious consequences for the UK.”. How are we going to be treated by the rest of Europe if we vote to remain by a small majority? That is another thing that the Stay campaigners fail to address. I can’t see our relationship with the rest of Europe staying as it has been after this vote, whatever the outcome.
Why is it that when trade agreements are made with other countries, we should have to make subscriptions, have to consider such conditions as free movement, etc. Being able to make one trade agreement with 27 countries at one fell blow might be a good thing, but the time it takes to do that and the conditions attached to the agreement make it less advantageous. Apart from that, we do not necessarily finish up with zero tariffs and we may not want to deal with all of the 27 other countries anyway.
Marcus, your argument on this has already been put forward on many occasions by the “leave” camp. It seems to be based on the assumption that only the UK has national pride, that all the other EU member countries would feel so desperate at potential damage to their trade with the UK that they would beat a path to our door to beg for permission to reinstate all the benefits of the single market without demanding any “membership subscription”. They would (in this dream scenario) also permit the UK full freedom of movement of goods and capital but absolve us from freedom of movement of people, while still imposing all these conditions on themselves.
In the old days we referred to this sort of ludicrous assessment as “Fog in channel – continent cut off.!”
By the way, just in case you get carried away with this “We import a lot more from Europe than we export to them” stuff , bear in mind the reality set out in this passage from an report by the Centre for European Reform – “… the EU buys 45% of Britain’s exports whereas the UK accounts for little over 10 per cent of exports from the rest of the EU, so the UK would be in a weak position to negotiate access on its terms. Second, half of the EU’s trade surplus with the UK is accounted for by just two member states: Germany and the Netherlands. Most EU member states do not run substantial trade surpluses with the UK and some run deficits with it. Any agreement would require the assent of the remaining 27 members, some of whom
buy more from Britain than they sell to it.”
You have covered some of the points quite well in your text, but those and many others are being bounced around by the media until it is getting more and more confusing. Nearly all aspects are in fact speculation and really crystal ball gazing, but there must be some results from exit and remain that are indisputable and should be focussed on. What are they? Even if the result to stay in were to happen, who knows what changes would take place in the EU? It is reasonable to assume that the Commisson might have some changes in mind that they are holding back until after the referendum that could have serious consequences for the UK. Alternatively, if we come out the immediate effect on the UK could be little changed, but the long term effects would be advantageous. But there must be some results that cannot be argued about. Probably the most clear one would be our sovereignty. Some arguments put forward by the Remain group are that we have to already share our sovereignty with others. But surely that is voluntary and not compulsory and WE decide on that? Another certainty is our ability to control immigration. But the main result would be that WE make our own decisions and be able to hold to account those who we elect to govern us. Surely, getting these powers back is worth the risks we take by leaving?
I found this article whilst trying to find out the process should we vote to leave the EU. Most of the arguments, from the comments, for staying in appear to be that we might get bullied by the remaining 27 states when we negotiate any exit deals or am I missing something?
Also, during the up to 2 years (or possibly longer) we have before officially leaving surely we would also be negotiating deals with other countries outside the EU. This is being overlooked by both sides of the argument. An agreement with Norway, for example, could effectively open up the rest of Europe to us anyway if necessary. However, can you see Germany wanting us to start imposing import duty on their vehicles? We import a lot more from Europe than we export to them so this would go for most, if not all, of the major players within Europe. If no open trade deal is done then it makes sense that we would impose import duty on imports from the EU as they would on our exports to them. This would be beneficial to most of the population as this would be a tax coming into the country. It would also allow us to change our tax laws to stop businesses, especially those trading on-line, avoiding tax by registering in countries with lower tax rates and avoiding paying any tax in this country at all. Again, this would benefit most of the population.
We saw during the Scottish Referendum that there were a number of people that wanted Scotland to leave that were willing to bully the stay voters. We are seeing it again during this Referendum as well. It was disgusting then and it is now but isn’t just the odd thug this time around but big business are getting in on the act too.
There is obviously a lot more informed commentators on this matter than myself, so perhaps someone can explain why the E.U. Act 1972 cannot be invoked as a means of exit?
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Clause 3 of Article 50 is absolutely clear –
“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.”
This means that the UK would cease to have access to any provision whatsoever of the trading and other benefits of the EU. Other provisions such as WTO would apply to some but not all of the myriad trading activities we would need to carry on and it would be left to the UK government to push through the necessary legal provisions. Given the appalling situation that would entail it could be argued that our erstwhile 27 partners would not let such a situation arise (it would after all have a very damaging effect upon them) and would therefore invoke the extension of the 2 year period laid down in Clause 3. However what a dreadful risk to take with no guarantee of a successful outcome. Remember that agreement from every one of the 27 would be needed. In practice, at best, triggering Article 50 would immediately give enormous leverage to all the other Member States: we would be forced out of the EU unless we agreed to whatever terms they were willing to offer.
At least that is how I see it.
If after the two years of negotiation, no agreement is reached, then what laws and agreements would be in place by default ?
Thank you Mr Gardner. In other words Brexit is Brexit and nothing else. There will be only two choices on the ballot paper – remain or leave. In the event of a majority for “leave” nothing can be assumed or claimed as to any subsequent negotiations about the relationship between the UK and the 27 countries still in the EU, every one of whom must assent to the details and conditions of any such relationship.
On 25 February 2016 at 11:49, The Constitution Unit Blog wrote:
> Peter Gardner commented: “I have only recently started reading these > opinions and came to this from Dr Renwick’s later blog on the necessity of > invoking Article 50. Whereas much of the EU’s workings and constitution are > obscure and Byzantine, Article 50 is utterly straightforward ” >
I have only recently started reading these opinions and came to this from Dr Renwick’s later blog on the necessity of invoking Article 50. Whereas much of the EU’s workings and constitution are obscure and Byzantine, Article 50 is utterly straightforward and one does not need any legal qualifications to understand it. The lie about Britain being dictated to and not even being allowed in the same rioom as the EU representatives has been firmly nailed here. But some points have been overlooked which add to the confusion in the debate about what would happen were Article 50 invoked.
Number One. Dr Renwick writes that the imbalance in power in favour of the EU rests in part on the guillotine: ‘An extension beyond two years might well be needed – but any one of the 27 could block that if it didn’t get its way on its own priorities.’ True but he overlooks the fact that an extension beyond two years would also require the agreement of UK, giving the UK in effect a veto.
Number Two: this whole debate is based on the assumption that the negotiations following the invoking of Article 50 are about the future relationship between the UK and the EU. This is not so. As Dr Renwick himself says, the detail is important. But first we should remember that invoking Article 50 is the only means of legally forcing the EU to negotiate anything at all. Now the detail, which is clearly stated in plain language in clause 2: ‘ 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.’
There is no need for Britain to commit to any long term arrangement whatsoever unless it is to its advantage to do so. The terms of exit can be confined to tidying up things already in train, for example provisions for entitlements and conditions of contract involving EU parties that are made under EU laws and rules so that individuals and organisations know where they stand. Agreement would be needed on the validity of EU travel documents, the rights of people to residence etc., at least for an interim period. Indeed one should, I think, expect a number of transitional arrangements limited in time and scope.
Obviously the framework of a future relationship can be general or as detailed as needed and subjects contained in it may also be in the terms of exit. The point is that the framework need serve only as a guide to intentions, goodwill or whatever, short of any legally binding commitment. The exit terms, on the other hand need, being made under the terms of the treaty are legally binding and the political reality is that certainty of where people and organisations stand needs to be among the highest priorities.
Bottom line: the negotiations can be conducted as the parties decide but only the agreed terms of exit would be binding and if none are agreed the UK is free to decide for itself. It is not necessary and not legally required to commit to any form of future relationship under Article 50. Indeed I very much doubt whether any treaty could legally bind a party to committing to a future relationship as a condition of terminating the existing one.
Absolutely correct, Gordon. And those who regard the UK as having enormous bargaining power over the remaining EU if the UK were to exit should bear in mind that while 45% or so of our exports go to the rest of the EU, the exports to the UK from the rest of the EU comprise less than 7% of total EU exports. That is the measure of the unequal negotiating position to which you refer.
And why would BMW and VW care, when basically all (non-British-made) cars will have a tariff on them, until such time as the UK government can agree separate (and doubtless inferior) trading agreements with the Japanese, South Koreans etc (most of whose cars for our market are made in the EU anyway)? You really do display an astonishing lack of logic in that comment. You might as well have written, “Yah boo, Johnny Foreigner sucks, Britain will be Great again!”
Hilarious. Yes tariffs go both ways, but the (rest of the) EU forms a much larger fraction of our trade than we do of theirs. You do understand the meaning of the phrase “unequal negotiating position”, right? It is why economic blocs got started in the first place!
I guess it is more than theoretically possible if the result is very very close – say 50.5% leave. Particularly if (as seems very probable) Scotland, Wales and N Ireland all vote overwhelmingly to stay. And if there are allegations of electoral fraud which could have affected the result. In that case the Commons could decide (albeit with a huge number of Tory rebels!) that the referendum was unclear and another one is needed. Still some months or years of uncertainty, but not as bad as actually negotiating to leave, I think.
Actually setting it out like that, it doesn’t seem such an unlikely scenario… There must be *some* number (50.1%?) for which it would happen?
Well said David Rowsell. At last a dose of common sense!
Here again we have the false allegation about “The EU budget not being singed (sic) off for 14/15 years because of corruption”. The truth is that for every year since 2007 the European Court of Auditors has given a positive “clean” opinion on the Union’s accounts (there were some qualifications in previous years). Here for example is the ECA statement for the year 2013 –
“In the Court’s opinion the consolidated accounts of the European Union for the year ended 31 December 2013 present fairly in all material respects, the financial position of the Union as at 31 December 2013, the results of its operations, its cash flows and the changes in net assets for the year then ended, in accordance with the Financial Regulations and with accounting rules based on internationally accepted accounting standards for the public sector. ”
There are of course a few observations on ways in which the accounts might be further developed and improved but the claim that the ECA refuses to sign off the EU’s accounts is an unadulterated lie – one of many perpetrated by the anti-European clique.
As for David Rowsell who arrogates to himself the power to throw us overnight out of the EU single market (with a rather adverse effect on the UK unemployment rate) he clearly needs to lie down for a while in a darkened room.
This Lisbon Treaty business is nonsense. We will not leave the room and wait for our masters in Brussels to tell us under what terms we will be “allowed” to leave the EU. We will declare UDI and stop paying them the money. We can then tell Merkel that either she agrees to free trade or she can explain to BMW and VW why they can’t sell their cars to us any more. Tarrifs go both ways, and the idea that WTO rules mean the EU would have to put on tarriffs, as one of you said above, is nonsense. Remember that it is our seat at the WTO that EU occupies and we want it back,
Everybody seems so worked up if the EU was more accountable and democratic we would not be in this pickle in the first place. Has been MPs form all country’s who are only bothered about there own pockets. The EU budget not being singed off for 14/15 years because of corruption. Who is accountable for this and can we vote them out. NO. People are saying that if we are not at the table we have no imput on anything that is brought in, we are at the table now and still have no say on matters as we are voted out by countries that benifit.
More confu to staysed than ever. I as said above, the public vote for Brexit and the commons vote to stay in, what is the point in a referendum?
Agreed, Denis – Brexit would be disastrous, in many ways. However, I wouldn’t underestimate the proclivity of the Labour Party to go down a disastrous path: witness Iraq, on which they were perfectly happy to “flout the will of the people”.
Interesting indeed. However I think, given that the Labour Party (reluctantly) removed its previous opposition to the Referendum Bill I cannot see them unitedly attempting to “flout the will of the people” as it would be asserted. Those of us who realise what a disaster UK exit from the EU would be will have to win this the hard way – by doing all we can to persuade a majority that we are right.
The question is what the constitutional requirements are in the UK to invoke Art. 50? Once triggered, then two years later the treaties cease to apply. A ‘leave’ referendum and the Royal Prerogative seem, prima facie, enough to meet Art. 50 (1), which could be contested through judicial review. A single article bill invoking Art. 50 seems to be overkill, but would certainly be possible. There would then be negotiations on the terms and a lot of legislation to remove references to the various treaties, the EC, CJEU and the like. I concede it is a somewhat messy business.
I take your point, Denis, but to say “it would be theoretically possible” does not really address the issue. I can envisage a scenario where the result of a referendum is a majority in favour of Brexit – which would delight the euro-sceptic wing of the Conservative Party – but when it comes to a vote in the Commons, which it surely must do, because Parliament must have the final decision, as it did in 1972 when it voted to join the European Community – as it was at the time – then a combination of the Labour Party, the Lib-Dems (what is left of them), the SNP, Plaid Cymri, and the “Ken Clarke” tendency in the Conservative Party would have the numbers to defeat any bill to leave the EU. It would certainly be practical politics from the Labour Party’s point of view, because it would split the Conservative Party down the middle, with many MPs leaving to form a separate party (or join UKIP). An interesting constitutional knot to unravel: the referendum saying “Out”, and the Commons saying “Stay in” – and perhaps just at the time when Chilcot reports. I look forward to a fascinating summer.
I think it would theoretically be possible for parliament to refuse to implement the decision made by a referendum but it would not be practical politics for any major party to attempt this. However it is certainly true to say that the referendum will not settle the matter within the Conservative Party or otherwise – any more than the Scottish referendum can be said to have done. And the many years of negotiation and business uncertainty sparked by a “leave” decision are horrific to contemplate. If you have time, have a read at this paper published last year by the Royal Institute of International Affairs https://www.psa.ac.uk/sites/default/files/conference/papers/2015/INTA91_Final_Glencross.pdf
Is it not the case that for Britain to withdraw from membership of the EU an act of some kind would need to pass through the parliamentary process? Surely the Commons and the Lords would have to vote in favour of Britain withdrawing for it to have any effect? We cannot simply say, the morning after the referendum,: “55% have voted to leave the EU, so Britain is now no longer a member”. There has to be more to it than that, doesn’t there? Which brings me to my next point: What would be the situation if there were a majority vote to leave in a referendum, but this was not supported by a vote in the Commons?
You correctly describe the City of London, Cristina. That is why the concessions obtained by Cameron concerning the equality of treatment for countries inside or outside the eurozone are important. The Draft decision in the Tusk letter acknowledges that “not all Member States have the euro as their currency”. Recalling the various opt-outs and exemptions from the euro, defence, justice and home affairs etc, the draft confirms that “such processes make possible different paths of integration for different Member States, allowing those that want to deepen integration to move ahead, whilst respecting the rights of those which do not want to take such a course”. It specifies that: The Union institutions, together with the Member States, will facilitate the coexistence between different perspectives within the single institutional framework ensuring both the effective operability of Union mechanisms and the equality of Member States before the Treaties.” The details of this need spelling out of course but in effect here is the safeguard that the City of London needs. As the eminent commentator Michael Emmerson says “However, in the event of the UK’s secession, there will be no such safeguards at all, only the certainty that other member states with serious financial market ambitions, starting with France and Germany, would use new opportunities to engineer competitive advantages for their financial markets. This is a point that the Eurosceptics seem not to have digested.”
To put it bluntly, the strength of London as the financial hub of Europe is demonstrated by its maintenance of that status even when the UK decided to stay out of the eurozone. However do you seriously think that status can be maintained if the UK deserted the EU altogether?
London is by far the most advanced financial centre in Europe and one of the top three or four in the world. The EU needs that much more than it needs the rest of Europe.
“They belong to several framework agreements: EFTA and within that the EEA. Is that status so abject and undesirable? Surely the UK falls quite neatly and practically by default into that scheme of things.”
I suggest you examine in more detail the relationship those countries have with the EU. They are still subject to EU laws, product & service regulations, etc. that the ‘outers’ are so quick to complain about and must also pay a subscription to belong but with the disadvantage that they have no say in the formulation of ‘club rules’. Brexit is not about joining the euro (the UK is already exempt from that), is not about an ever closer political union (the UK already has clarification on this being a sovereign decision), is not about ‘red tape’ (UK goods and services traded with the EU would still need to comply with EU standards) – it is about one single issue and that is immigration. Strangely enough, the immigration that UK citizens are most concerned about is not from the EU at all but from non-EU and predominantly muslim countries.
Why listen to my views about Norway’s situation when you can read those of former Norwegian Foreign Minister Espen Barth Eide who ruefully commented a few months ago that the Norwegian electorate had twice narrowly rejected EU membership – in 1972 and 1994. He said –
“As an EEA member, we do not participate in decision-making in Brussels, but we loyally abide by Brussels’ decisions. We have incorporated approximately three-quarters of all EU legislative acts into Norwegian legislation – and counting. We have legally secured access to the single market, and we practise the free movement of people, goods, services and capital. Norway is more closely integrated into many aspects of the EU than even some of the EU’s members. Our subscription to freedom of movement and our membership of the Schengen area means that Norway has even higher per capita immigration than Britain.
Those campaigning for Britain to leave the EU and choose the Norwegian way can hence correctly claim that a country can retain access to the single market from outside the EU. What is normally not said, however, is that this also means retaining all the EU’s product standards, financial regulations, employment regulations, and substantial contributions to the EU budget. A Britain choosing this track would, in other words, keep paying, it would be “run by Brussels”, and it would remain committed to the four freedoms, including free movement.
Without full European Union membership, however, it would have given up on having a say over EU policies: like Norway, it would have no vote and no presence when crucial decisions that affect the daily lives of its citizens are made.”
As for accusing our 27 EU partners of malice if they were to block efforts by the UK to negotiate favourable terms after “Brexit”, how would you describe the conduct of the UK if it were to kick them in the teeth and then try to get back all the benefits of membership without the financial and regulatory obligations? In any case, judging by the Norwegian (and Swiss) example good luck with that!
Reblogged this on Say Yes 2 Europe – Remain in the EU.
Reblogged this on Bassetlaw For Europe and commented:
Anyone thinking that Brexit will be easy and will be done on terms dictated by the UK has not read Article 50 of the Lisbon Treaty. As this piece lays out very clearly, leaving the EU is not simple and most of the advantage in the negotiations will be with those countries remain in the EU.
This article is grossly exaggerating the effect of not reaching an agreement on post-secession specific to relations between the UK and the EU, esp. free trade. But take a look at trade relations with countries that were never EU members: Switzerland, Norway, Liechtenstein and Iceland. They belong to several framework agreements: EFTA and within that the EEA. Is that status so abject and undesirable? Surely the UK falls quite neatly and practically by default into that scheme of things. Do we hear the Swiss, Norwegians etc. (or even the Serbs for that matter, who are out in the cold) clamouring for their govts to hurry up and join the EU? To believe that the EU would specifically deny the UK the same deal that those countries have would require us to believe in a level of vindictiveness and malice in the 27 remaining members that would be shameful and thus quite unsustainable politically — indeed internally divisive to the EU itself.
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Correction – my previous comment should say “better” terms of trade for a country that has spurned…….i
The notion that every one of the 27 remaining EU members would agree terms of trade for a country that has spurned membership than they would agree for a country remaining in membership – which is the essential premise of the “second referendum ” brigade – is patent unadulterated nonsense and those spuriously putting it forward know this perfectly well..
The upcoming Referendum on in/out would not be followed by a second one. The possibility exists of another Referendum on the withdrawal package (this is not a second one on the question of Brexit). If the “legal limbo” arose that the UK voted to Exit but did not agree the withdrawal Terms, maybe the EU could decided the UK has exited anyway after two years. Then reapplication would be without the perks. But even a vote to stay in is not without legal ambiguities; we would have to wait for the EU to actually deliver on the renegotation deal and if it was thought it had not or had watered it down then there could indeed be another Referendum.
I do not see a victorious Leave Campaign accepting more than a few days or weeks before invoking Article 50, not unless it had been agreed long before the vote.
Article 50 once invoked has a fixed two years before Brexit. An immediate question is what might the UK seek to negotiate? EEA membership? Only access to the Single Market? Anything more complex might take much of the two years just to agree the negotiating position, before engaging with the EC and the EU27. The UK internal negotiating process could be horribly messy, especially if it re-opened questions over Northern Ireland and Scotland. It is conceivable there would be unanimity among the 27 to extend the negotiating period, but equally there is the possibility and threat that someone says enough of this, either because it serves some other interest, because it was taking up too much time or just going nowhere.
This is an excellent piece.
One further thought occurs
.If it was announced in advance as suggested by Cummings and Jenkins, before negotiations to withdraw under Article 50 were commenced, that a referendum on the outcome were to be held, that would impact on the negotiating strategy of the EU side.
The EU side would then be less likely to grant any concessions to the UK because to do so would increase the likelihood in the second referendum that UK voters would opt to accept the terms and leave, rather than vote to stay in after all.
If the Government really wanted to leave open the possibility of a second referendum one way of doing it might be to conduct the negotiations contemplated in clause 2 in an unofficial way before making the formal notification to the European Council. That way, if the negotiations produced a better deal for the UK (or at least a deal which was more likely to result in a “Remain” vote at a second referendum) the government would not activate the procedure in art 50 and the legal uncertainties would not arise. Of course such an option might well be unattractive to the 27, and would presumably be regarded as a betrayal by the (at this point, successful) “Leave” camp, so might well be a political non-starter. But if the result of the first referendum had been close…Or if England and Scotland had produced different results…it might be an attractive option.
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