Does the Prime Minister have to trigger Brexit talks under Article 50 after a vote to leave the EU?

me 2015 (large)

In a previous blog post Alan Renwick has discussed how Article 50 of the Lisbon Treaty could lock the UK into negotiations after a vote for Brexit on terms that tilt the balance of power away from the UK and make a second in/out referendum on an improved renegotiation package, of the type floated by Boris Johnson among others, impossible. But could these problems be got round by not using Article 50, as some Leave campaigners have suggested? Here, Dr Renwick argues that the use of Article 50 would, in practice, be unavoidable.

Suddenly, the Lisbon Treaty’s Article 50 is the talk of the town. This is the legal provision setting out how a member state can leave the European Union. First, the departing state declares its intention to leave. Then negotiations are conducted between the departing state and the remaining 27. Either a deal is done and the departing state leaves on those terms, or, after two years, the departing state automatically exits (unless a unanimous vote of all the member states prolongs the window).

I spelt out the terms of Article 50 in detail in a previous post, and discussed the implications – including whether it would in practice prevent negotiation to stay in the EU on better terms in the event of a ‘Leave’ vote. In today’s Telegraph I discuss the politics around Boris Johnson’s hints of a second referendum to improve those terms. Here I focus on a narrower question that has been receiving much attention: Would the Prime Minister actually be obliged to invoke Article 50 in the event that the referendum delivers a majority for Brexit? Doing so would lock the UK into negotiations on quite disadvantageous terms. Some have suggested that Cameron could avoid this, and thus gain more flexibility for the UK in the event of a vote to leave: either in order to renegotiate Britain’s terms of membership, or to gain advantage in the negotiations for our terms of departure. But is avoiding Article 50 possible?

In purely legal terms, a referendum vote to leave places no obligation on the Prime Minister to invoke Article 50. Indeed, it places no obligation on him to do anything: the referendum is, formally, advisory only. In practice, of course, he will have to respect the result.  But does that mean invoking Article 50?

David Cameron said yesterday in the House of Commons that it does. He said, ‘If the British people vote to leave, there is only one way to bring that about, namely to trigger Article 50 of the treaties and begin the process of exit, and the British people would rightly expect that to start straight away.’ But some might dismiss such words as tactical and predict a different line come 24 June if the vote has gone for Brexit. Would they be right to do so?

The route to answering this question depends on what he might be trying to achieve by not invoking Article 50. There are two possibilities.

Scenario 1: avoiding Article 50 to avoid Brexit

The first possibility is that perhaps the Prime Minister would steer clear of Article 50 in the hope of avoiding Brexit entirely. In his Telegraph article outlining his reasons for joining the Leave campaign, Boris Johnson said ‘There is only one way to get the change we need, and that is to vote to go, because all EU history shows that they only really listen to a population when it says No.’ That could be a claim that a Leave vote would give the Prime Minister the mandate to go to Brussels and demand a root-and-branch reform of the UK’s EU membership, rather than actual Brexit. Given that the other 27 member states want to keep the UK in, there is good reason to think they would be prepared at least to listen to such an approach.

The problem here is that it looks politically untenable on the domestic front. The Prime Minister insists – and will go on insisting for the next four months – that a vote to leave is a vote to leave. The options on the ballot paper will be to remain or to leave – not to try again for something else. The majority of Conservative activists – and possibly the majority of Conservative MPs – appear genuinely to want to leave. So it would be political dynamite for the Prime Minister to interpret a Brexit majority as anything other than what it says on the tin. And even if the present Prime Minister felt tempted to try, it is unlikely that his party would allow him to stick around for long enough to carry it out.

Scenario 2: avoiding Article 50 to secure better Brexit terms

The second possibility is that the Prime Minister hopes, by not invoking Article 50, to secure better terms for Brexit.  Article 50 is not designed to give bargaining power to the departing state: the two-year cut-off, as I explained in my previous post, gives each of the remaining 27 members substantial power to push its own agenda. So the UK might be better off if it could negotiate its future relationship with the EU on a less skewed playing field.

Indeed, the Vote Leave campaign appears to recognise this. It says on its website: ‘We do not necessarily have to use Article 50 – we may agree with the EU another path that is in both our interests.’

One problem with this is that it isn’t immediately clear why the remaining states would agree to negotiate outside Article 50: the flipside of Article 50’s effect of weakening the departing state’s bargaining power is that it strengthens the hands of the remaining states.  So why would they give up this advantage?

That rhetorical question is not entirely without answer: some ongoing member states might well prefer not to give certain other ongoing member states an opportunity to pursue their pet peeves. Nevertheless, many ongoing members will also want to make it clear to their own voters that the path to exit is fraught with dangers and indignities. They will have no reason to give the UK an easy ride.

In any case, there is no legal mechanism to exit except via Article 50. Everyone agrees that just leaving by repealing the 1972 European Communities Act without doing a deal would be crazy: it would entail, among other things, leaving without a free-trade agreement, which, under the rules of the World Trade Organization, would require the immediate imposition of tariffs on UK–EU trade. So we would have to invoke Article 50 at some point, and scope for game-playing would then return.

The unavoidability of Article 50

In short, in the event of a Brexit vote, Article 50 looks unavoidable. The idea that it could be held off to seek a renegotiation of ongoing membership is thwarted by domestic political imperatives. The idea that it could be resisted to secure better Brexit terms is equally scuppered by the interests of the other member states. The Prime Minister’s words on Article 50 are not just tactical.

These conclusions are founded not on law, but on the interaction of the rules with the politics. That means they are not certain: the politics could always play in unexpected ways. Still, when we vote on 23 June, we should do so on the presumption that a victory for Leave will lead us to Article 50.

About the author

Dr Alan Renwick is the Deputy Director of the Constitution Unit.

 

59 thoughts on “Does the Prime Minister have to trigger Brexit talks under Article 50 after a vote to leave the EU?

  1. I think Dr Renwick’s arguments here are incontrovertible. The basic point about the referendum is that there are only two options on the ballot paper – remain or leave. The Prime Minister is absolutely right to say that he must regard a majority for “leave” as an instruction from the British people to set that process in motion. The leave camp (or camps) are always preaching about democracy. How would it be democratic to interpret a *leave” vote as meaning – “Hey wait a minute, let’s think about this” And by the way Cameron will be around as PM for quite a while to come even if his party tries to get rid of him.

    On another thread someone said “Let’s forget about Article 50 and just leave unilaterally right away.” As Dr Renwick says this would mean immediate exit from the single market or any other form of free trade agreement. My advice to that poster was to go and lie down for a while in a darkened room.

    By the way, one point that always intrigues me is the ambivalent view the leave camp takes of the strength of the UK. On one hand they allege that we can’t fight our way out of a paper bag in negotiating with our EU partners. On the other hand they allege that we can burst forth from what they see as the surly bonds of Europe and rule the world as some sort of superpower,

    • Part of the urgency of leaving is that we need to do it now, whilst it’s still possible. If we left and the EU put tariffs in to stop us selling in Europe, wouldn’t we put up our own tariffs against them selling in the UK? For me, this is all about sovereignty and democracy. If it is hard as a British citizen to get my voice heard in the UK, it is impossible in Europe. If the EU keeps expanding, leaving will become impossible rather than difficult, and then they’ll have us over a barrel

      • One of the drawbacks that have stultified the contribution of the UK to the progress of the EU is the tendency of too many people such as Brigid Parkes here to regard Europe as something done to us rather than our continent of which we are an integral and important part and which can extend and enrich our national performance. What on earth evidence is there to justify the assertion “they’ll have us over a barrel”?

        Having said that I am glad that over the years British individuals have made a very positive contribution to Europe in general and the EU in particular. A current laudable example is Lord Jonathan Hill, the EU Commissioner responsible for financial services – one of the few areas of trade in which the UK is supreme. He should be listened to when he says “After having spent the last three decades making the case for it, shaping its [the Single Market] rules to fit our interests and working with our partners to take it further, the UK is advised to abandon it for an unspecified new trade arrangement. Terms and conditions unclear: subject to negotiation. A negotiation with 27 countries who sell 8% of their exports to the UK, but on whom we depend on for nearly half of ours. ”

      • The reason so many people in the UK regard the EU as something done to us rather than something we want and have influence over is that our experience of the EU is that any benefit from the EU goes to the select few, usually already wealthy and well able to lobby. For most people in the UK the EU has meant poorer working conditions and all the other disadvantages of austerity. Those speaking in favour of Remain are sufficiently divorced from the adverse effects of membership not to hurt and sufficiently indifferent to those hurt by the EU not to care.

      • denis579 quotes Lord Hill, whose allegiance, by the way, is to the EU not to UK – he does not represent British interests in any way – seems to think it is governments that make trade possible. The EU cannot do anything to inhibit the trade of an independent Britain with the EU other than to apply its customs union tariffs and even then only insofar as these are permitted by the WTO in which an independent Britain would regain its seat. If it does so Britain is able to apply equal tariffs to its far higher exports to Britain, which would considerably increase revenues to HM Treasury and make EU exports to Britain far less competitive compared with UK imports from non-EU countries. Which would be great for lowering food prices in UK and increasing exports of African agricultural produce thereby also alleviating poverty in Africa and enhancing the economic development of Africa. German sales of cars to UK wold reduce, French sales of wine, cheese and other goods to UK would decrease.

        The ease with which trade deals can be negotiated depends on the complementarity of markets and producers and the level of pre-existing barriers to trade. these are much easier to address and reach agreement on one to one rather than on one to 28.

        of course, whether any of the potential for Britain once more independent could be realised depends very much on what the UK Government does. The gist of the Remain argument is that it would be utterly incompetent and supine. Well, we can always get a new government and give it all authority to do what is required – but only if we leave the EU.

    • My understanding of the EU Referendum Act 2015, this referendum was advisory and not mandatory and that it has to be ratified by all mp’s in the house of commons on a vote so that the prime minster can trigger artical50 other wise it would be unconstitutional.

      • Edward Martin wrote:
        “My understanding of the EU Referendum Act 2015, this referendum was advisory and not mandatory and that it has to be ratified by all mp’s in the house of commons on a vote so that the prime minster can trigger article 50 other wise it would be unconstitutional.”

        I agree that the referendum was indeed only advisory, but of course with huge political and constitutional significance. It would be extremely foolhardy politically for any government to attempt to ignore this historic vote.
        Re Article 50 of the Lisbon Treaty, as I explain in my post above, there is no necessity for a British government to invoke this for the simple reason that when the British people voted to reject the EU, by implication they also rejected the UK’s links with all the EU treaties from Rome to Lisbon, and the latter now has no binding or contractual obligation on the part of a British government.

        As has often been stated, the vote was for the UK to actually leave, not to perpetuate the status quo by remaining inside the organisation and being bound by a further minimum of two years membership with all that goes with it – namely the imposition of EU taxes (membership fee and VAT), and judgements from the ECJ. That would be totally incompatible with the spirit and letter of the referendum vote.

        There is however the requirement for the formal and constitutional de jure break with the EU treaties which is of course the immediate responsibility of parliament led by a new PM. That process includes the necessary amendment to the 1972 ECA by which all EU legislation is incorporated into UK into domestic law and then subject to progressive amendment or repeal etc by our parliament without further reference to any EU institution and free from the jurisdiction of the ECJ. Many MPs have acknowledged frequently the constitutional principle that ‘no parliament can bind its successor (s)’ and the legal mechanism for that move involves ECA legislation.

        I suggest that what would be “unconstitutional” under the new changed status of the UK to the EU would be to “trigger” Article 50 of the Lisbon Treaty. Like numerous treaties the EU succession of treaties should now be allowed to wither on the vine under the Vienna Convention on treaties which allows for a material change of circumstances, and incidentally, given that the same Convention sanctions departure of a state where fraud has been perpetrated at any point. ( e.g. on UK accession to the EU, and where the latter
        has on several occasions broken its own treaty obligations).

  2. The main point of your piece is that we are required to use Art. 50 if we were to leave the EU and I was hoping to understand in more legal detail what are the consequence of repealing the ’72 Act as an alternative. “Everyone agrees…” doesn’t sound persuasive to me and I wonder if you could expand on this latter point.

    • David Green in his book, The Demise of the Free State, recommends precisely that, calling it a unilateral declaration of independence. He says The Lisbon Treaty giving EU law primacy over national law has authority in UK only because the 1972 act makes it so. Parliament could reassert the supremacy of national laws and courts if it so chose. He cites Lord Denning. But doing so would repudiate the Lisbon Treaty. Whether the EU would do anything about that is another matter but that is not the British way of doing things. David Green points out that many member states, especially Germany and France, have flouted EU law with impunity, but then they were always intent upon staying in. He says we should just challenge the EU to do its worst. One can imagine that if it did Britain would very quickly head for the exit. However, I don’t believe it would be appropriate in the circumstances of the imminent referendum but some amendment of that Act may well be appropriate, if not actually necessary, after Article 50 is invoked but before exit negotiations are concluded because there are already conflicts between EU law and British law as it was prior to the Lisbon Treaty and there needs to be absolute clarity about the application of directives flowing incessantly from Brussels and which courts are the final arbiters.
      Anyway these are opinions. I would be interested to hear Dr Renwick’s reply.

  3. This is not quite correct. Union was never approved by Parliament and is not therefore legally binding. We should need to consider our future relationships with the member states, some of which are far from being Anglophile, but could actually choose our own course and do whatever we b,dy well want to do..

  4. @Messrs Edwards and Taylor

    Dr Renwick makes it clear that he is discussing political realities and not just legal niceties. Surely his assertion – “it [unilateral exit by the UK without implementing Article 50] would entail, among other things, leaving without a free-trade agreement, which, under the rules of the World Trade Organization, would require the immediate imposition of tariffs on UK–EU trade” – adequately answers the queries raised by both of you.

    • The difference between terms of exit and terms of a future relationship is not a legal nicety. Just think of any commercial contract or a defence agreement. When it ends and unless the contract itself says anything about a future relationship the future is irrelevant to the terms of exit unless the parties mutually agree to make them so. Otherwise the parties have a clean break and may do as they need thereafter. Furthermore I believe you are incorrect to say the WTO rules require the imposition of tariffs. The WTO permits, it does not impose tariffs. In any case, your answer concerns only trade. What about the example I gave of movement of people? No doubt the Vienna Convention is relevant but it gives wide-scope for the parties to make amplifying agreements. What about contracts depending on EU law, for example an expectation of a right to reside in France or the UK, will they stand or should such dependencies be considered in the terms of exit? These are very real circumstances requiring practicable solutions to be considered in the terms of exit and possibly but not necessarily as part of the terms of a future relationship if any.

  5. Surely the key point is that Article 50 concerns the terms of exit, not the terms of a future relationship? I quote:

    ‘…. 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.’

    in practice there is an overlap. For example something is immediately required to cover movement as visitors, temporary residence and permanent residence and the initial agreements may be hard to change later. However, the focus is clear: terms of exit.

    Neither side is bound by the Treaty to agree any form of future relationship and quite right that it is so. in practice it would be sensible to conduct the two sets of negotiations in parallel. The danger from the Brexit side is that if the current pro-EU government conducts the negotiations, Brexit may look not too different from membership.

  6. The assumption from the Leave camp seems to be a breathing space could be won over the Summer for tempers to cool and to assess the situation. It depends on how close the result would be for Brexit. If it was by a whisker and Scotland, N Ireland and Wales were wanting in, then there may be a pause over the trigger button. Also if analysis of polling showed that those who voted for leaving believed in a better deal, that would also prompt some pause for thought. If this point that No means maybe not, plays a big role in the Leave campaign then it could be plausible. Whats on the ballot paper might not be so important. More autonomy wasnt on the ballot paper for Scotland. And the deal isnt mentoned with the EU on the ballot paper for June for that matter. The 27 don’t want years of exit talks either. For the UK there is an advantage in delaying the ticking of that clock but possibly for the others too.

    • I do not understand the persistence of this suggestion that a referendum posing a clear binary choice between remain and leave can after it has been held be subject to interpretation as to whether it really means remain or leave. The comparison with the Scottish referendum is completely false – the concession of increased devolution was offered BEFORE the vote, just as our 27 EU partners have now, before the vote, offered the UK concessions to help us towards voting to stay in the EU.

      The Prime Minister has made it clear that democracy will have spoken on June 23 and that he will feel bound to accept that democratic decision. How can he do otherwise?

      That is not to say that if “leave” wins there will not be some sort of modus operandi eventually negotiated to secure some sort of trading relationship between the UK and the 27 EU members but only in the context of exit from the EU. How can anyone think that any such new relationship with us outside the EU, which by the way would take years to formulate, would be in some way superior to what is on offer now? As the Foreign Secretary said in the Commons yesterday “The idea that they [every one of the 27] will go the extra mile to ensure that Britain can remain a destination for foreign direct investment to serve the EU market or that our financial services industry can compete in the European market on a level playing field is, frankly, fantasy land.”

    • Before the referendum was established by act of parliament it would have been possible to call a different referendum asking, ‘ Do you want Britain:

      a) to leave;

      b) to remain without treaty change;

      c) to remain on condition the treaties are changed to restore full sovereignty to the UK;

      or similar.

      That would have given Cameron the strong hand to negotiate from strength and achieve something closer to what he set out in his Bloomberg speech, which could then be voted on in a second referendum. The truth is that Cameron was and remains utterly determined for Britain to remain in the EU and offered a referendum only to spike the threat of Ukip in the general election. in the event the real threat that secured his surprise victory was the prospect of an SNP and Labour alliance. The so called negotiation was more a collaboration between Cameron and his EU colleagues on how best to win the referendum than a negotiation to resolve any difference in the interests of the supposed sides. They were all on the same side.

      It is too late now. We have had the so-called reforms Cameron promised to negotiate so if any integrity is to remain in his handling of this the choice is now binary: remain or leave. That must be the end of it. If Cameron prevaricates over leaving, should that be the result of the vote, his integrity will be completely shot and the public will rightly lose all respect for and confidence in him. Should the vote be to leave then the only immediate change necessary to achieve the best possible terms of exit will be to replace this government with one genuinely dedicatated to Britain’s best interests.

      • And we will under Article 50 have only two years to unwind 43 years of membership plus putting together a new modus operandi with the 27 remaining EU members. Otherwise at the end of the two years we exit the Union automatically. Unless, that is, the 27 we have spurned (every one of them) offers us an extension. Good luck with that.

      • Not correct. The two year limit concerns the terms of exit. There is no requirement to conclude a new relationship within that time. How could any treaty bind its signatories if they terminate the relationship to immediately form a new one. The idea is just silly. Even though the text of Article 50 is readily available and was repeated in one of Dr Renwick’s articles it appears you either have not read or are deliberately misrepresenting it. I expect better in this kind of blog.

      • OK – let’s have a look at 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.”

        Note the phrase in paragraph 2 – “taking account of the framework for its future relationship with the union”. In paragraph 3 it makes clear that the Treaties cease to apply (in effect termination of our membership) if two years from the notification of intention to leave pass without “the entry into force of the withdrawal agreement” – not the formulation of the agreement but its entry into force. So is Peter Gardner suggesting it is feasible for us to negotiate the terms of our future relationship with the EU in a more leisurely fashion after we are already out? Does he have any idea of what this would do to businesses already struggling with forward planning and investment during the two years?

        It can be argued that the damaging effect of all this to our 27 erstwhile partners may force them into (unanimously) granting an extension of the two year period. But would you really want to bet on that? It’s an enormous bet on behalf of UK businesses and indeed all our citizens. Bear in mind the universal desire there would be among the 27 not to set a precedent that would facilitate other EU members considering exit.

        In effect the only way of guaranteeing more than two years to get all this done is for the Prime Minister or parliament to delay the initial notification to the European Council after a “leave” vote on June 23. He has already said fairly convincingly that he could not square any such delay with democracy. The referendum has only two options – remain or leave.

      • I fall back on my earlier comment that the priority for exit negotiations. the priority for the terms of exit is to reduce uncertainty be dealing with loose ends. For example some people say free movement, which I mentioned earlier, would be a huge issue. A competent government minister could solve it in his lunch break. A framework is just that. Details do not need to be spelled out and nothing need be committed to as permanent. The two year deadline does not require commitment to the new relationship within two years and the uncertainty you claim to be horrendous and long drawn out need not be. Fewer than 20% of UK business export to the EU. The design of services and products destined to EU markets will have to comply with their standards just as they do for other markets. No change there. Conditions of exporting may change. Start with GATT which limits tariffs to 2% (I can’t remember off hand but some very small number) for approx half of manufacturing categories and rulings on services. German manufacturers in particular will want to zero tariffs on their products thus adding to a sense of urgency and providing leverage for UK. Apart from what must be agreed with the EU, UKG can act independently to alleviate much potential uncertainty. EG. EU farm subsidies could be replaced immediately with UK payments and tapered to reductions in payments to the EU during the two year period. So no change there and this would save UK money as on average the UK taxpayer forks out 2 pounds for every pound received back from the EU. Trade with many countries in the EU is insignificant so broad agreement could be reached on the areas most important to UK relatively quickly.

        Similarly investment decisions look at long term trends rather than the detail of legally binding treaties. The government and EU could agree to maintain continuity of conditions for any investment decision made prior to exit inline with the Vienna Convention. The UK could go further if it wishes and doing so does not always require agreement with the EU.

        denis579 seems to find it impossible to separate the purpose and agenda of exit negotiations with gradually moving to a new relationship, which is not a leisurely process (don’t put words into my mouth denis579!) but moves through stages as details are filled in. To argue that damaging chaos would ensue might carry weight if there was a hue and cry from industry over the EU’s protracted negotiations on TTIP, particularly as its content is largely secret and unknown (except perhaps to Brussels lobbyists.) and other EU trade deals

        As an experienced and very successful exporter of manufactured products and projects in highly regulated areas to countries around the world I can assure you that companies can move very fast if they need to and governments can also act very quickly, if they have the will and commitment, to reduce uncertainty. What I cannot assure you of is that the British Government has the will and competence to handle exit negotiations. Cameron has admitted his government has no plan on how to conduct exit negotiations. This is highly irresponsible, not to say arrogant.

        What is very clear is that government and civil servants will have to stop thinking as members of the EU consensus with decisions made by Brussels but as British protagonists acting for British interests and being fully accountable for all their decisions affecting those interests. That is the biggest change of all.

        It suits the Remain campaign to create fear and uncertainty among the voters, at least until 23 June. I suspect their own fear is that in the event of a vote to leave, the government will caught with its trousers down.

  7. The Prime Minister would lose authority to trigger Art 50 the day after the result if it went for Brexit. As always with treaties there is room for interpretation as we see here. Therefore over the Summer EU lawyers could be working out the details of Art 50. For example in the course of the two years would it be possible for the Member State wanting to withdraw, to retract the withdrawal if for example domestic politics changed.

    • There are several internal difficulties for UKG. AS Dr Renwick has said, it is important to over emphasize the balance of power in favour of the EU. However it seems from a statement by David Cameron that his government is as yet wholly unprepared – they’re doing it in their heads, no paperwork’ he said. Having said that David Cameron only days later also said he would trigger Article 50 immediately. Presumably he is scaremongering. Surely his staff and civil servants would strongly advice careful preparation? It is very difficult to place much credence on his utterances.

      Aside from the obvious need for preparation, I should have thought a referendum result was all the authority the government would need to trigger Article 50. Perhaps I misunderstand you? I can see there would be a question of confidence in both his motivation and his ability, but that is a different matter.

      I am not sure what you mean by ‘working out the detail of Article 50.’ Presumably you mean their negotiating tactics. Again I would say it is important to make a clear distinction between the terms of exit and the terms of any future agreement on trade or whatever. the more UK tries to put on the agenda the harder the EU can make it to reach agreement. As I said before the priority is to reduce uncertainty for British individuals and organisations. For trade we have a safety net in GATT. It is inconceivable that Germany would allow its manufacturers to face tariffs – even as low as those permitted by GATT – because a small country doesn’t like the terms for its third rate wine (thinking of Bulgaria and Malta, even Greece! Retsina should be banned anyway.)

      I have often wondered whether a country could change its mind. I think Article 50 is silent on the issue. Certainly UK could not withdraw from exit negotiations unilaterally to achieve that result. But the Article is also clear that ‘ the Union shall negotiate and conclude an agreement with that State’. I guess the conclusion could be a new relationship remarkably like the old one. Bit of a gamble! So it would be up to the EU to decide. It is very good at ignoring its own rules or inventing them ad hoc.

      Whilst the legalities are important much of what will happen is a question of will and motivation. I do believe that a man utterly and passionately convinced that Britain should stay in an EU about to embark on the final leg of its journey to found the Federal State of Europe within 10-15 years would be the wrong person to lead the exit negotiations for he clearly has no vision of Britain outside the EU other than as a third rate non-entity. We would need to appoint someone who has faith in this country.

    • Further to my previous response. Distinguishing between exit terms and the future relationship is also the best way to avoid the power imbalance arising from the two year time limit. Keep the agenda simple and strictly confined to terms of exit. For future trade, agree only what can be done quickly and declare up front that anything more difficult will simply have to wait for a future trade deal some time after exit. The two year limit then becomes academic. I believe it is fallacious to argue that industry needs a level of certainty based on a completed trade treaty. Adequate certainty can be provided in various ways. Not least by taking GATT as the baseline, which doesn’t require any formal agreement with the EU at all. If industry really would be thrown into chaos, by this how come we are not hearing a hue and cry about the time the EU is taking over TTIP, trade deals with China et al.? It’s a bluff.

      I should add also that all this stuff about security is scaremongering as well. For example you don’t need to be in the EU to be a part of Europol and Britain’s position in terms of security and intelligence is far superior to any other EU member state and we have had bi-lateral arrangements with nations in and outside of Europe for a very long time.

  8. @Peter Gardner

    Have a look at the article now posted on this site by Dr Nick Wright, including –

    “How will this process be managed? Accession states must agree and transpose into law 100,000+ pages of the acquis communautaire, indicating what ‘reverse-engineering’ this process might entail. All aspects of UK membership would have to be addressed, with no part of Whitehall unaffected and all needing to feed into the negotiating process. This will pose a significant administrative and bureaucratic challenge domestically and in Brussels (one that will include the devolved administrations, each with their own concerns).”

    Talk about doing things in lunchtimes etc shows no understanding whatsoever of what would be required and I am sure you must know this. And it does include the formulation of a new relationship at least sufficient for trade to proceed. By the way your figure of 20% of UK businesses exporting to EU countries may be right (quite a lot of UK businesses do not export at all) but those exports to EU countries add up to something like 45% of all British exports. Under 7% of all EU (ex UK) exports come to the UK.

    @Dr Melanie Sully

    This decision will be based on a binary “remain or leave” referendum decision. Whatever the precise legal position it is politically impossible to alter this or mess about with it without another referendum. Can you really see those who have been baying for decades for the UK to leave the EU agreeing to another referendum before exit is completed, whatever changes occur in domestic politics?

    You will probably gather from my posts here that I was against the whole idea of offering complete exit rather than stepping up British engagement with EU matters and using our undoubted power and prestige to seek reforms and improvements from within. But we’ve now got a referendum and it verges on dishonesty to keep on questioning the enormity and finality of the decision that faces our electorate.

    • There are so many false assumptions. We do not need to unpick 43 or however many years of EU membership. We are not going back to 1972. We are going forward from where we are. Where we are means that, for example, with effect from the day of exit all EU directives already passed into UK law remain in force but will be interpreted by British courts and no new directives shall apply to the UK. The ECJ shall cease to have jurisdiction over UK with immediate effect. The government’s normal legislative programme will continue and as and when required these laws, like any other may be amended or repealed in due course. That gives more certainty than we have today about EU law which changes daily. From 2017 the EU is about to embark on a round of treaty changes intended to complete economic and monetary union by 2025 and shortly thereafter found the Federal State of Europe. You think leaving the EU before this starts is the only source of uncertainty?

      Regarding free movement, the government makes changes to visa requirements and rights of residence etc for non-EU citizens continually. It has recently clamped down on movement of Commonwealth citizens to UK, for example. Where is the hue and cry? This is just business as usual. So how about this:

      ‘With immediate effect, applications for residence by EU citizens shall be considered under the same rules as for Commonwealth citizens (or US citizens if you prefer or some other current category). All existing rights of residence granted to EU citizens will remain in place. Applications already received but not yet approved will be evaluated under current rules where a confirmed employment offer has been accepted or otherwise evaluated under the new rules. Legal disputes will be settled by UK courts under British law.’

      Get the civil service to tidy it up a bit and the job’s done and my tea is not yet cool enough to drink. Obviously the rules will continue to change over time. That’s just business as usual. There seems to be a great tendency here to make mountains out of molehills. So I am sure my approach will be greeted with oodles of whataboutery.

      There is a rather splendid precedent from the school of simplicity in this:

      ‘Article I. The Prussian State together with its central government and all its agencies is abolished.’

      That was a law brought into immediate effect on 25 February 1947. That is the kind of clarity we need to give certainty in the event of Brexit. Unless certainty is not the priority but rather a prolonged period of debate, dotting i’s and crossing t’s and what aboutery on minor issues.

      • ……and our 27 erstwhile partners will rapidly facilitate us in retaining all the aspects of the EU we consider beneficial and trade with us exactly as before while absolving us from the obligations, costs and perceived annoyances which we choose to shrug off. Dream on.

      • It is clear this web site, to which I am new, is one for EU luvvies. Please forgive my intrusion from the real world. You seem to think UK is part of some club where a difference of opinion is rightly regarded as traitorous, where a member is not allowed to say, enough, enough, I no longer belong here, where even if said member leaves it is bound for life to agree to abide by the view of the other members.

        I remember some time ago, after my minor part in throwing the jack-booted invading Argies out of the Falkland Islands, a very senior person who had been in charge of that operation, while sitting on my desk in the MoD one evening, my position being one in which I had many interactions with NATO and other allies, saying that I needed always to make a clear distinction between friends and allies and that failure to do so by others had led to many a disaster.

        He was right. Friends get jealous, vengeful, spiteful, hateful, they can cut off their noses to spite their faces, they claim loyalty for no good reason. Allies on the other hand unite rationally around a common cause and either accept, for that purpose, their differences, or if they can’t, decline the alliance and agree to differ n this occasion. You seem to attribute the other members of the EU with the qualities of friends that should have no bearing on the matter in hand.

        With friends like that …..

        No. Britain needs allies not that type of friend. It needs relationships, long term or short term, country by country built upon common interests, not a lowest common denominator strait jacket defined by others, which is the best the EU can offer.

        You also conflate the EU and Europe. They are fundamentally different. The former is a supranational anti- democratic government that seeks its legitimacy on the presumption that a post democratic world is the inevitable future world order. To that end it suppresses expressions of democratic will through national parliaments.

        Over the last century the UK has twice saved Europe from itself by virtue of its independence. If it stays in the EU it will become part of the problem: that the EU government is unaccountable and unresponsive (it cannot be otherwise for it has no demos) to the needs of its diverse peoples. UK will have no influence in the EU, particularly in view of the next stages of the EU’s development as outlined in the Five Presidents’ Report. It aims to complete economic and monetary union by 2025 (and as stated elsewhere acquire its own military capability for the purposes of power projection in support of imperial expansion) as the last step before founding the Federal State of Europe on the EMU member states. The required treaty changes are scheduled for 2017 (white paper in the spring). Cameron’s position on the EU are coloured by the facts that a) he is expected to steer these through the EU machinery during his time as president of the European Council from July to December 2017 and b) he will retire from UK politics at the end of his term as PM of UK (2020, possibly sooner f he loses the referendum). In short I believe his burning ambition is to secure his legacy as the PM who settled for a generation the question of Britain’s membership of the EU in favour of absorption into the European project.

        Which future in the EU do you wish for Britain: a) an appendix to the superstate, with no influence (even now it has not succeeded in any of its 40 attempts to oppose EU legislation) but with full liability for the risks, follies and costs of the entire EU; or b) being subsumed into the federal State of Europe, with its economy totally directed by Brussels (Germany) and no more political freedom than a British County Council, ie, a colony of a foreign power?

        Those are the only choices if Britain remains in the EU. Do you think that is insignificant compared with the risks of leaving?

        I cannot guarantee a competent government in UK but there is no reason to suppose an EU government would be any better and there is total certainty that an EU government will not be accountable to the British electorate. Sovereign parliamentary government is the best form of governance yet devised by the miserable species known as homo sapiens. Supra-national government by a foreign unaccountable elite, on the other hand, has a proven track record of abject failure. Why on earth do you want it? Do you really hate Britain so much?

  9. Ah! Following my previous lengthy reply. The simple answer to your question is if they don’t conclude an agreement with UK as Article 50 clearly requires them to do then they get nothing, as the said article clearly states: treaty obligations by Britain to the EU cease after two years, income of the EU will immediately decrease by £55 million per day (of which UK gets back only half). Why do you assume UK is always the supplicant and has no leverage and is utterly limp?

    And no it won’t be exactly the same as now. The EU will be just one market equally open to UK, even without a trade agreement, as the rest of the world, and a declining one, to boot. There is little to lose and much to gain by Brexit. Thing to remember is that the EU member states are the oddballs. All the 180 or so other countries in the world are sovereign independent states and I haven’t heard of any of them clamouring to give up their sovereignty to a supra-national government comprised almost entirely of foreigners.

  10. PS. UK has been overruled in 75% of case before the ECJ. British influence? Humbug. We would have more influence on European nations as an independent nation not shackled by EU law and procedures, the fifth largest economy in the world.

    • I would be interested in the source for your 75% figure, Peter.

      It was the ECJ that compelled member states to take our beef and lamb following the BSE crisis; our “special relationship” with the US does not seem to have persuaded them to do so.

      The SIngle Market and expanding EU membership were both promoted by the UK. The former generates a lot of the laws.

      • Of course the establishment are in favour of endless migrants into the UK forcing down wages. There has never been so much of GDP in the hands of so few. Why wouldn’t an elitist government prefer to buy in ready trained nurses to investing in training our own. The only way to redress the balance of wealth and power in the UK is to leave the EU.

    • Amending, not repealing, the European Communities Act 1972 is advocated in David Green’s short book, ‘The Demise of the Free State’. The amendment would make explicit the primacy of Parliament and declare the UK Supreme Court to be a higher court than any other court. This would contradict EU law. He calls it a unilateral declaration of independence because doing so would amount to repudiation of the Lisbon Treaty. He cites Lords Denning, Laws and Judge in cases and lectures. I would need to read it again but it seems to rely on a slight uncertainty in the ECA, that UK courts are required only to take account of ECJ rulings, not to apply or to follow them. Lord Judge argued that if that had been Parliament’s intention the statute would have used such language in the statute. Lord Judge points out that it is British statutes not the European Treaties that require UK Courts to follow the rulings of a foreign court in the case of both the ECA 1972 and the Human Rights Act 1998. Ergo Parliament could amend these Acts to remove that provision and to clarify the supremacy of UK law. Were it to do so the UK Courts would be bound by UK law and would have no choice in the matter.

      Damian Green points out that under British constitutional conventions a government cannot change the law by signing a treaty. The ECA 1972 incorporated the 1959 Treaty of Rome into UK law and lists the treaties to which it applies and gives the government an extraordinary power to add new treaties by an Order in Council. In effect it gives the government prerogative power claimed by monarchs and resisted for hundreds of years except for a brief period under Henry VIII.

      Damian Green argues that both France and Germany have several times flouted EU law when it suits them and are exploiting the peculiarly British loyalty to the law. He challenges the EU to do its worst in response to a British UDI. Personally, I think not much would happen until Parliament refused to implement an EU Directive. And the effect of that would depend on its specifics.

      The fundamental problem is that it is hard to envisage Parliament asserting its sovereignty in this way. So long as the government, which enjoys its power to amend UK law under the 1972 Act has a majority in Parliament and its MPs place party loyalty above the national interests and fail to assert the supremacy of Parliament over the government, Britain will remain subject to EU law.

      In the event of a remain vote, the only glimmer of hope is that when the EU introduces the envisaged treaty changes from 2017 to complete economic and monetary union (Five Presidents’ Report) the European Union Act 2011 will gain another referendum on those changes. However, it is highly likely that following a Remain vote, Cameron will move to repeal the EU Act 2011. That will be the next battleground. In that event the question arises why bother with parliament at all. Certainly the number of MPS should be reduced since it would then only have a marginal role in the EU. And the Lords would become largely irrelevant. We could manage with the same set up as an average county council.

      • “I would need to read it again but it seems to rely on a slight uncertainty in the ECA, that UK courts are required only to take account of ECJ rulings, not to apply or to follow them. ”

        I thinki you are confusing this with the Human Rights Act 1998; Parliament did want the ECtHR (Strasbourg) to have the same potency as the ECJ (Luxembourg).

      • Not confusing ECA with Human Rights Act. eg.”Lord Judge argued that if that had been Parliament’s intention the statute would have used such language in the statute. Lord Judge points out that it is British statutes not the European Treaties that require UK Courts to follow the rulings of a foreign court in the case of both the ECA 1972 and the Human Rights Act 1998. Ergo Parliament could amend these Acts to remove that provision and to clarify the supremacy of UK law. Were it to do so the UK Courts would be bound by UK law and would have no choice in the matter.”

  11. Peter. Agree 100 per cent with your posts. On the assumption of a possible ‘ remain’ vote in June I argue that all is not lost – see UKIP comment by me entitled ‘A different move towards Brexit’ in which I suggest that amendment to the ECA would then be a first priority, followed later by outright repeal.

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    • Pat. There is no necessity for anyone to “trigger” Article 50 of the LT which is entirely an EU construct.
      All that is required to confirm the people’s de facto departure from the EU in the referendum is for parliament to repeal the 1972 European Communities Act (gateway to all EU law and judgements from the ECJ) and that completes the Brexit process de jure.

      It is astonishing how many people including the media and BBC assume that Article 50 is somehow obligatory for a British government to invoke at some point. We were actually taken in to the EEC (as it was then) via the ECA ’72 Act and parliament has consistently asserted that what parliament sanctioned in 1972 a later parliament can reverse by repeal. This is doubly the case now that the government has a clear mandate to act accordingly.
      There are in any case huge practical objections to Art. 50, not least that it would perpetuate the “remain” status quo – which is entirely contrary to the spirit and letter of the referendum result. Secondly, any agreement reached as to terms would finally have to be approved by the remaining 27 member states and thus the whole process could drag on interminably within the two year maximum period. I can’t think that even “remainers” would relish that prospect !

  15. Pat, yes a fundamental question now. I did hear comment from a constitutional lawyer (can’t remember who as I am in media overload) that, as Brexit concerns a change to statute law, then Parliament would need to vote it through (or not).

    • If, following a referendum where the vote was for one outcome, parliament disregarded the democratically expressed will of the people, and imposed the opposite outcome, what legal recourse would the people have?

  16. The key weakness of the referendum process (as many commentators have pointed out) is that the Leave group did not and could not articulate what Leave meant; in effect it presented voters with a false dichotomy. Now that the serious conversation with the EU is underway, initial indications from Angela Merkel, and other EU leaders, are that the only option will be an agreement that gives the UK access to the EU market, but on an EEA/EFTA style arrangement including free movement. Timing is very awkward: Parliament needs to be clear on the best deal before having to debate repeal of the key statutes. However, given an EE/EFTA deal is the case, Parliament could argue convincingly that such a deal was not in the national interest, being worse than we now have, and, as Parliament is sovereign, it must uphold the UK’s best interests, Parliament could then move to some very messy ‘remain in the EU for the time being’ fudgy status.
    The political calculus would be that, since Cameron has departed the scene, it can be argued there is a fresh start: a very subtle ‘none of this happened on my watch’ mood music – certainly if Teresa May is PM. The new Tory leadership may gamble that any pushback by disappointed parties, which obviously would be seismic, was a risk worth taking. Why? Labour looks to be self destructing, so the serious political competition would be Tory Eurosceptics, by now apoplectic, Lib Dems (now on an upswing, but a long way back), and UKIP (the biggest threat) – so a good chance for the Tories to achieve a majority in the Commons in a quick General Election to legitimize their policy. Any legal recourse would be difficult as the referendum was not binding. The payback from Leave voters would have to come via the ballot box at that General Election. What the big beasts behind Leave might do is difficult to forecast – it would all get very unpleasant again, but Referendum Take 2 is not an option.

  17. A side issue that I keep stumbling over as a non-lawyer with an interest in legal texts: Even learned scholars refer to “Article 50 of the Treaty on European Union” (TEU) as “Article 50 of the Treaty of Lisbon”. I have also heard references to Art. 187 of the Treaty on the Functioning of the European Union (TFEU) as “Article 187 of the Treaty of Lisbon”, even though TEU and TFEU are two different treaties. If you look at the actual text of the treaty of Lisbon, you will find its Articles are numbered only from 1 to 7. All the changes to the above-mentioned treaties, plus to the Euratom treaty, are tucked away in those seven articles. Is it a widely accepted practice to refer to “Article 50 of the Treaty of Lisbon” when that treaty actually does not have any Article 50?

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  19. Unless we are willing to act in such a way as to question the integrity of the UK in entering into and observing any international treaty in future, the only way to exit the EU is to apply to trigger Article 50. Also even if there is some evidence of “regrexit” by some leave voters it is not politically feasible for “remainers” to demand another referendum in an attempt to reverse the verdict. However Nick Clegg has put a strong case for a general election once the details of the preferred exit package have been formulated (hopefully under a Teresa May premiership – she seems to be the only hope for an adult approach to all this). Given the crude binary choice the referendum posed, some sort of democratic sanction to the more specific way forward would seem justified.

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  21. Denis 579. “Unless we are willing to act in such a way as to question the integrity of the UK in entering into and observing any international treaty in future, the only way to exit the EU is to apply to trigger Article 50”

    Reply. But why the assumption? With the referendum vote there is now a completely transformed situation – legally, politically, and constitutionally. When the electorate rejected the EU in the referendum, then impliedly they also rejected all the treaties from Rome to Lisbon – de facto we have left!

    I agree with a growing number who assert that the proper course now is for a new British government to invoke the Vienna Convention on treaties, several clauses of which address directly the new situation – the primary ones being Clause 6 “every state possesses capacity to conclude treaties”, and Clause 62 which refers to a case where there is “a fundamental change of circumstances”
    That change has just occurred – namely a change of government, a change of PM. and a radically altered change in the status of the UK in relation to the EU via the referendum vote.
    International law? We should remember that the Vienna Convention IS international law. There is no sound reason why a new government should not act on its provisions.

    • As far as I know the EU is not a party to the Vienna Convention and neither is France.. If UK decided to go by it the EU would have open slather to make up the rules to suit itself. Bad idea.

    • Precisely. A) using the Vienna would require the consent of all parties to the Lisbon Treaty to not use Article 50, b) neither the EU nor France is a signatory to the Vienna Convention so there is no reason for them to follow its rules, and c) the EU can only act as a body in this matter within the terms of the Lisbon Treaty.

      What I don’t understand is why eminent MPs such as John Redwood think the Vienna Convention is in the least relevant to the exit process. (It is relevant to issues of acquired rights but not to the Brexit process itself). Can someone explain how this furphy gained traction?

  22. Pingback: Brexit Process Getting More Complicated | Michigan Standard

  23. Pingback: Brexit Process Getting More Complicated | All-len-All

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