UK Hot Air Balloon

Brexit vs Article 50

How do we leave the EU?

A summary from the excellent MoneyWeek on the process of Brexit.

How do we begin Brexit?

Britain has to formally notify the European Council of its intention do so. The process is laid out in Article 50 of the Lisbon Treaty, though it appears that since nobody ever thought anybody would do this, Article 50 is vague, only 250 words long and has just 5 clauses. Once notice is formally served, 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”.

Who do we negotiate Brexit with?

The agreement to leave will be concluded with the European Council (the 27 remaining heads of state and government, plus the Council president and Commission president) acting with the consent of the Parliament. Once a withdrawal agreement is concluded, by a qualified majority vote (usually 20 out of 27 states) the Treaties will cease to apply to the UK.

Is there a deadline?

The exit (“Brexit”) can occur at any time after notice is served up to a maximum of 2 years afterwards when it automatically leaves, assuming no extensions are granted with the consent of all 27 other countries.

What are we negotiating?

The withdrawal agreement WILL cover:

  • the untangling of shared laws, regulations and institutions;
  • an agreement over outstanding financial obligations; and
  • the status of the 1.3 million Britons living in the EU and 3 million EU citizens living here.

The agreement WILL NOT cover

  • future trading relations.

Who can initiate Article 50?

The assumption is that the Prime Minister can. David Cameron promised to initiate Article 50 if the referendum voted for Brexit, but instead resigned leaving that to the next person.

However, that assumption is already the subject of a legal challenge (by Mishcon de Reya acting on behalf of undisclosed clients). The issue is that he was assuming the right to use prerogative powers to enact the result of a referendum which, legally, was merely advisory. Mischon de Reya claim: “The outcome of the Referendum itself is not legally binding and for the current or future prime minister to invoke Article 50 without the approval of Parliament is unlawful.”

Why do they claim this?

Because parliament is sovereign. Under case law and constitutional precedents from the early 17th century onwards, the executive cannot take away rights given by parliament and it cannot undermine existing statutes, such as the European Communities Act 1972.

It may of course be that political realities will overtake the legal wrangling and make this question a mere formality. Once Article 50 is invoked, the clock starts ticking.

But … ?

Although the current parliament is overwhelmingly made up of MPs who support for Remain campaign, there is no desire to ignore the referendum result. Consequently, they would likely give consent for Brexit if asked (see the legal challenge above) and all prospective Prime Minsters are in agreement. However, politics is in massive flux currently and it is perfectly plausible that legal, constitutional and political wrangling will add significantly to the complexity and timescales of exit.

The referendum question only asked IN or OUT. There were no details of any exit deal. So it is even possible that if public opinion shifted against Brexit in the course of exit talks, a second referendum might become justified and/or politically unavoidable, adding vastly to the uncertainty.

Alternatively, the government might try to formalise certain preconditions before invoking Article 50. Theresa May has said this is what she would like to do, though Europe has consistently said no to any informal pre-Article 50 talks and want us to get on with Brexit.

Voting to leave was the easy bit. Actually getting out could be much, much harder.

Hang on, trade deals are separate?

Well remembered. Trade deals are not part of the exit negotiations. They are separate.

Unless Britain decides to propose staying in the EEA (which is unlikely), the trade negotiations will go on a lot longer than the 2 year timescale of Article 50. To complicate matters, the EC president has said that trade negotiations cannot start until the exit agreement is made. Since trade negotiations could take 5 years or more, we could be looking at 7+ years of instability, assuming we conclude matters successfully even then.

I’m glad we managed to clear that up.