May 24, 2016
Consider, for a moment, what will happen next if the Leavers win the referendum. After a raucous weekend, one assumes that the prime minister will make an apologetic statement to the House of Commons on Monday 27 June. The next day, leaving Samantha Cameron to begin the packing at No 10, David will make his last appearance at the European Council in Brussels.
Cameron’s reception will be embarrassed. While nobody will want to be seen vindictive, the sense of betrayal among his fellow heads of government will be acute. Commission President Jean-Claude Juncker is already using the language of Britain being in danger of ‘deserting’ the European cause. Having been forced to undertake an essentially spurious and self-indulgent renegotiation of the UK’s terms of EU membership at their February meeting, the European Council will now be faced with the convulsion of coping with the UK’s secession. There will be many regrets but little patience, and great anxiety. The imperative will be to minimise the collateral damage done by the secession to the remaining Union, and to prevent contagion of the British disease. Brexit will not be made easy. The coincidences of the French and German elections in 2017 reduce the likelihood of any important concessions being made to Britain by François Hollande or Angela Merkel.
The European Council will wait for Cameron to speak. What will he say? During the referendum campaign he has insisted that ‘out is out’, and that he would intend, while still prime minister, to immediately trigger Article 50 of the Treaty on European Union in the event of a Leave vote. His insistence has been to blunt the claim of certain Brexiteers that recourse to Article 50 is not inevitable and that some ill-defined process less inimical to the interests of the UK can be opened up. Yet Cameron is correct both legally and politically to stress that there is in fact no alternative to Article 50. The message from the corridors in Brussels is, first, that nobody will react until they hear what Cameron has got to say for himself, but, second, that there can be no new negotiation with the UK outside the parameters of Article 50.
As a recent House of Lords report confirmed, in terms both of EU primary law and international law on treaties (the 1969 Vienna Convention), there is no legal way of leaving the EU apart from Article 50. For the UK Parliament simply to repeal the European Communities Act 1972, as Brexit zealots wish, would put the UK government in the dock facing litigation not only in its own domestic courts but also at the European Court of Justice in Luxembourg, the European Court of Human Rights at Strasbourg and the International Court of Justice in The Hague. That would not be a good place to be for a permanent member of the UN Security Council. And the political reaction across Europe to such an illegal, disruptive unilateral desertion would be bound to be fierce and prolonged.
How Article 50 works
Although it is true that Article 50 was meant never to be used, it is also true that it was designed to work in favour of the remaining EU and in disfavour of the seceding state. On 28 June, in case Cameron is anything less than crystal clear that the UK has moved into secession territory, Donald Tusk, President of the European Council, will be ready to extract from the hapless British prime minister a categorical notification that the game is up. At that point, according to Article 50(4), Cameron will have to leave the room. His erstwhile colleagues, acting by consensus (a relaxed form of unanimity), will set broad guidelines for the negotiation of a withdrawal agreement with the UK.
Some weeks later, the General Affairs Council of EU-27, acting by qualified majority vote (QMV), on the basis of a Commission proposal, will grant to the Commission a detailed negotiating mandate; the Council is also likely to set up its own special committee to monitor progress. The final withdrawal agreement can be concluded by QMV – in this case, by 21 out of 27 states – so Ireland, for example, could not veto the deal. Nothing can be concluded without the consent of the European Parliament, so MEPs will play as significant a role in the secession negotiations as they do in all the EU’s international agreements.
The decision-making procedures are, therefore, quite clear. What is less straightforward are the related issues of the timetable and the scope of the withdrawal agreement. Article 50(2) speaks of negotiations on the ‘arrangements for … withdrawal’. That could be taken to imply a fairly technical set of issues to do with extrication from the acquis communautaire – such as the winding down of EU spending in the UK, adjustments to the employment of British officials in EU institutions, the relocation of EU agencies from British soil and, not least, catering for the acquired rights of more than two million EU citizens living in the UK (and of a similar number of British citizens resident elsewhere in the EU). Were the secession negotiations so restricted it might be possible to conclude them within the two years allotted under the treaty. Although the two year timetable could be extended by unanimous agreement, it would be misleading to suggest that EU-27 would be tolerant either of any wilful prevarication by the British or of hostage-taking on some unrelated question by any other member state: hence the QMV rules.
However, were the UK to seek to define within the context of Article 50 a comprehensive new form of relationship with the EU on trade, single market or any other matter (such as cooperation in foreign policy), the timetable would have to be extended and the negotiations would become much more complex. Not least of the problems would lie in the UK, where the Leavers have no settled prospectus about the future of post-Brexit European policy: they will need some time to sober up after their riotous first weekend. An additional problem is that a Conservative party leadership election will be taking place over the summer months, and the new prime minister will be unlikely to have secured his or her negotiating mandate from the cabinet and parliament at Westminster until October. Furthermore, a wide negotiation that embraced both technical legacy matters as well as future political questions would take the form of an EU ‘mixed agreement’ some of whose elements would require unanimity in the Council plus a lengthy ratification by every member state in accordance with its own constitutional requirements. Awkward for some.
My guess is that it is more likely, therefore, that the Article 50 negotiation will be kept as quick, narrow and technical as possible and that a separate, in part parallel, negotiation will be struck up between the UK and EU-27 on a different legal basis (such as Article 217 TFEU). As to the substance of any future relationship, one cannot at this stage rule anything out other than the messy and unstable Swiss option, which will not be on offer from the EU.
Another decision that will have to be taken by the European Council on 28-29 June is to relieve the UK of its obligations to shoulder the rotating presidency of the Council of ministers for the six months from July next year. As soon as the notification under Article 50 takes place, British ministers and officials will be excluded from any discussion or decision concerning Brexit. It would be intolerable in those circumstances, as well as highly impractical, to have Brits chairing meetings about future EU policy and legislation that will never concern them. Some alternative practical arrangement will have to be made for the conduct of Council business for the last semester of 2017.
Although UK representatives will be ejected from the Council, British MEPs should continue to sit and vote in the European Parliament until their mandate is extinguished on the entry into force of the withdrawal agreement – probably 1 July 2018. So too with Jonathan Hill in the European Commission and the British judges at the Court of Justice: it will be a long, slow withdrawal. And a sad one.
Could the UK change its mind about leaving the EU, presumably after a general election, at any stage of the Article 50 process? Although the treaty is silent on that matter, international convention and common sense would permit the return of the prodigal. And if that were to happen, we would all go back to the status quo as of now, before 23 June 2016. The European Council has been careful to stipulate that the controversial deal it struck with Cameron, which among other things would exempt a UK that voted to remain from ‘ever closer union’, will hit the dust if the Brits vote to leave. At least we will not weep for that.Andrew Duff