IN THE WAKE of Thursday’s surprising vote for Brexit, it becomes necessary to see how exactly the UK will leave the EU.
The UK referendum was very different to a constitutional referendum, as we know them in Ireland. In Ireland, a referendum on the Constitution is binding. By contrast, the electorate of the UK has simply advised its Government to leave the EU.
That said, it is hard to see any British government ignoring that advice. Article 50 the Treaty of the European Union sets out the legal mechanism for a negotiated withdrawal from the EU. While it is conceivable that a country could decide to leave the EU unilaterally, such actions would be in breach of international law and would do serious damage to relations with the EU that remained. As all sides of the Brexit debate agree that the UK needs to continue to trade with the EU, it seems likely that the Article 50 mechanism would be used.
So what do they do?
Under Article 50, it is for the UK Prime Minister to notify the European Council of its intention to leave the EU. Despite saying he would give this notification immediately following a Brexit vote, David Cameron has now said that he will resign in October 2016 and that the timing of the notification is something for the next Prime Minister to decide.
Once that notification is given, the EU will start negotiations with the UK on an agreement, setting out the arrangements for the UK’s withdrawal, taking account of the framework for its future relationship with the EU.
One of the primary matters to be agreed is whether the UK will remain part of the European Single Market. Norway for example, which is part of the European Economic Area (EEA) but not the EU, pays significant contributions for the privilege and must also adhere to EU trade directives including those relating to free movement of people.
It seems likely that the EU would be slow to allow the UK to be part of the EEA without making contributions on a similar level to those made by Norway, for fear of encouraging other countries to leave.
Similarly, Britain may be slow to agree to continue to allow the free movement of people, when their referendum was so heavily influenced by the issue of immigration.
This is going to take time
A related issue is whether the UK would maintain the common travel area agreement with Ireland. An Taoiseach has said that he will work hard to maintain the agreement, though again this may be resisted by both immigration hardliners in the UK and by elements in the EU, who would want a common external border for the Union.
While the EU will have sole competence to agree trade related aspects of the treaty with the UK, if the withdrawal agreement goes further than this, it would need to be ratified by individual members, some of whom, Ireland included, would need their own referenda.
While the result of negotiations with the UK is anybody’s guess, what is clear is that the negotiations will take some time. Article 50 allows 2 years for the parties to conclude an agreement on withdrawal. After this point the EU treaties cease to apply automatically. It is possible to extend this period, but any extension must unanimously agreed by the heads of state of each member of the EU and the UK.
Why the UK can’t change its mind
What if the UK got cold feet about leaving?
Once a notification is given, Article 50 does not provide a mechanism to take back that notification. The Article says that after 2 years, the EU treaties “shall cease to apply”. This means that the UK would no longer be part of the EU automatically. The time period for departure can be extended by unanimous vote, but that is all. Barring a change to the wording of Article 50, the only way for the UK to get back in is to reapply, through the normal mechanism.
Nicola Sturgeon of the Scottish National Party, has indicated that she wishes for Scotland to remain in the EU. There is no express provision for such a partial withdrawal from the EU. While it is possible that the remaining members of the EU would agree to accept Scotland as part of the Article 50 UK withdrawal agreement, it would be stretching the meaning of the wording of Article 50 to breaking point. Scotland would also need to be an independent state to be eligible to be part of the EU. Given the slow moving nature of international bureaucracy, this seems highly unlikely to be the case before Brexit occurs.
Donnchadh Woulfe is a barrister
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