I wrote an article for the Fabians’ new edited collection on Brexit, entitled What next? Truths and myths about Britain’s institutional possibilities in the months to come:
The sheer magnitude of the task ahead is only now beginning to sink in. The inventory of all the issues that need to be addressed is growing by the day. And the government must define its negotiating objective on each one of them, as must the European Union.
They range from the relatively minor, such as whether the bids by various British cities to be European capital of culture in 2023 can go ahead, to the crucial trading relationship.
Many have serious implications. One example is the European chemicals agency, which tests and authorises all new chemicals for sale in the European market. Leaving the EU would normally mean we are no longer part of it. Should we then set up a new UK chemicals agency, recruiting the necessary expertise at great expense? Or, do we not bother, and follow the European expertise without being a part of it? Or, do we seek to negotiate a special membership or associate membership of it as part of our exit deal? Will other EU countries be willing to accept that? Currently, EEA countries (Iceland, Norway and Liechtenstein) are the only non-EU members of it, and they have no vote on its board.
Similar questions abound in different fields: Europol, EU research programmes, shared projects in overseas development, the European environment agency, the (London based) European medicines agency, continued participation in the European arrest warrant, the EU “open skies” system for aviation, and its arrangements with third countries, and so on.
But the biggest question of all is whether Britain will seek to continue to be part of the single European market. If it does, it will have to follow the common rules for that market. If it leaves the single market, it will face a tariff barrier and regulatory obstacles to its main export market. This is an unpalatable choice which divides both the government and leave campaigners. Whichever way the government decides to go, there will be leave voters who are unhappy with the choice.
It should therefore be no surprise that the government is taking time to trigger article 50, the procedure to negotiate withdrawal from the EU. And it is no surprise that some are calling for a second referendum on the terms of the exit deal.
The article 50 procedure is full of pitfalls. Once triggered, it sets the clock ticking: after two years, Britain is out, if there is no agreement, a situation which would cause maximum disruption and many legal uncertainties. If agreement is reached within the deadline, it needs approval of a qualified majority of the other member states. In practice, 21 of the 27 is the figure to bear in mind. It also needs the consent of a majority in the European Parliament, with British MEPs participating in the vote. If no agreement is reached by the deadline, the two year period can be extended only by unanimous agreement of all member states, a factor that also leaves the UK with a significant negotiating disadvantage.
There is also room for argument about what is covered by the article 50 withdrawal agreement. Article 50 refers to “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.” In other words, it does not itself settle the future relationship. But “taking account” of it implies some measure of agreement as to what that will be: An EEA type participation in the single market? Continued participation in other aspects of the EU? A complete break?
Agreeing in principle to a particular type of relationship will still leave much to be settled afterwards. Negotiations will be sequenced, not parallel, as some in Britain seem to think. The article 50 “divorce” could set target dates for the necessary agreements, and specify that, until then, the status quo applies. But this itself raises questions about that status quo, including what happens to budgetary contributions, voting rights, and court jurisdiction over disputes during the interim period. There will be considerable uncertainty for years to come until the details of the final arrangements are thrashed out. There will in all likelihood be a need for several different agreements, as different fields require different legal bases under the EU treaties. Some of those legal bases require unanimous approval of any agreement by all the EU member states, meaning that Britain’s preferences can be blocked by a single country.
The article 50 agreement should also settle the date of departure. A few, on both sides of the debate, want it as soon as possible. Others, in the interests of the departure being reasonably smooth, argue for as late as 2025. An intermediate possibility is 2020, which is the end of the current multiannual budget of the EU. Any date after June 2019 implies Britain will have to elect new MEPs that year, possibly just for a few months or a couple of years.
It is unclear whether the article 50 process can be revoked once it is triggered. The treaty is silent on the question. But the balance of legal opinion is that it can be, provided it is before the two-year deadline. It must also be a genuine request, and not a device to re-set the two-year countdown.
Similarly, if an article 50 agreement reached in 2019 sets a date of, say, 2022, for departure, can the UK change its mind between those two dates? There is greater legal uncertainty here, but politically it is likely that a change of mind about leaving would be accepted, whereas change of mind simply on the terms or timetable would not.
This is important in the event of a rethink by the UK. Any referendum on the outcome of the Brexit deal, and any decision to remain, should take place before the date of Britain formally leaving the EU. Afterwards, any desire to remain in the EU would have to be pursued through an application to join afresh, under entirely different procedures and facing the standard expectations of any new member state, including, in principle, acceptance of the euro. Any accession treaty, of course, requires the unanimous consent of every member state.