Author: Sarah Gogan
This article was previously published in The Times on 30 June 2016.
The withdrawal process, rather than being a straightforward process of exit, raises complicated legal and political issues
For now the UK remains a member of the EU. Last Thursday’s referendum is not a formal, legally binding trigger for a UK exit. Article 50 of the Lisbon Treaty is the only legal route to withdrawal and sets out how an EU member state might leave the union. Notification would need to be made for the withdrawal process to be triggered, but there is no mechanism in place to compel a state to withdraw from the EU.
The wording of Article 50 is vague and obscure and no country has ever invoked Article 50, meaning this is an untested procedure.
Article 50 says: “Any member state may decide to withdraw from the union in accordance with its own constitutional requirements.” It specifies that the member state should notify the European Council of its intention, negotiate a deal on its withdrawal and establish legal grounds for a future relationship with the EU. It gives the exiting member state two years to conclude negotiations. Failure to do so results in the exiting member state falling out of the EU with no new provisions in place, unless every one of the remaining EU states agrees to extend the negotiations.
The British government must decide its negotiating position, what sort of relationship it wants with the EU in the future and whether it still wants access to the single market and free movement. It may be more sensible, given that the UK is entering uncharted waters, to hold informal talks with Brussels and other member states to arrive at the outline of a possible settlement before locking the UK into a two-year timeframe within which Article 50 negotiations must be concluded. However, the EU does not need to agree to informal talks and may insist that the formal sequencing be observed.
During the two-year negotiation period, EU laws would still apply to the UK and EU citizens can continue to live and work in the UK. This applies equally to those British citizens living in another EU member state.
It is not clear yet if the UK will seek to join or remain in the European Economic Area (EEA), which extends the rules on access to the EU internal market to non-EU countries. While full EEA membership will require the UK to accept many EU laws with less say in the running of the EU, EEA membership in some form may still be desirable.
Another option could be that the UK seeks to negotiate a stand-alone treaty on free movement of people with the EU, as Switzerland has done, or a more limited migration between the UK and the EU. Finally, an option that has been bandied around by those politicians strongly in favour of Brexit, is a points-based system for EU migrants whereby Britain only allows those EU nationals who meet certain academic, skills and or financial requirements to be able to come to the UK to work here.
The withdrawal agreement should detail the position of UK citizens in the remaining EU and EU citizens in the UK at the time of Brexit. There will also be a question of how to regulate the future position of those already resident. If free movement is not part of the negotiations, then the worst-case scenario is that UK citizens become subject to visas for visits to the EU and tourist visas are imposed on EU nationals.
The withdrawal process, rather than being a straightforward process of exit, raises complicated legal and political issues. As the UK takes time to analyse its situation, legally there does not appear to be any easy way out. Article 50 is a once-and-for-all decision and there is no turning back once it has been invoked. It is up to the government to ensure that the exit is managed consistently with the UK’s national interest.
Sarah Gogan, Partner, Fladgate LLP (firstname.lastname@example.org)