The people have had their say: on June 23 more than 17m Britons voted to leave the EU. The outcome was clear, and should be respected.
But the future is shrouded in uncertainty. Months of campaigning failed to produce good answers to what have become urgent questions. The uncertainty relates not only to the terms of any withdrawal and future trade agreement between the UK and the EU, but also to the process of Brexit. As no member state has ever withdrawn from the EU, there are no relevant legal precedents. This is uncharted territory.
Article 50, introduced by the Treaty of Lisbon, provides the mechanism for withdrawal from the EU. But what’s still not clear is whether once it is triggered, the UK is at a point of no return.
The European Commission appears to have accepted that it cannot (legally, at any rate) oblige the UK to trigger Article 50. So it is up to the UK prime minister to decide when to notify the European Council of the country’s plan to leave.
Article 50 provides that the EU treaties cease to apply to the state in question, only “from the date of entry into force of the withdrawal agreement”. Or, failing that, two years after the member state notifies the European Council of its intention to withdraw, unless the period is unanimously extended by all member states.
So, until a withdrawal agreement is reached, the state in question continues to be a full member of the EU, with rights and obligations intact. The withdrawal agreement is, on the EU’s side, concluded “by the European Council acting by a qualified majority, after obtaining the consent of the European Parliament”.
On the UK side, the agreement would have to be ratified in Parliament. Once a state has withdrawn from the EU, it may ask to rejoin “subject to the procedure referred to in Article 49” – the same way as any state wishing to accede to the EU.
Can Britain change its mind?
But what if the UK activates Article 50, but then has second thoughts about the decision to leave the EU? And if the Article 50 process is stopped, what is the UK’s status?
It seems staggering that there is no clear answer to this key legal question. It is vitally important – before the trigger is activated – to know whether the Article 50 process may be stopped, and whether the Article 50 notification may be rescinded.
A House of Lords report on the process of withdrawing from the European Union published in May 2016 provides the most authoritative analysis. David Edward, a former judge, stated: “It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of government.”
Derrick Wyatt, EU legal scholar at the University of Oxford, supported that view:
There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a State withdraws, it has to apply to rejoin de novo. (as of new) That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind.
This seems to me to be the most sensible view – but some constitutional lawyers are taking the opposite view.
Article 50 is not designed to make it easy for a state to leave the EU, and it would surely be interpreted and applied so as to make it easy for a state that, after all, decided that it wanted to remain. So, while the clock does start ticking once the Article 50 notification is made, it is at least possible that the process could be stopped at any stage – at the UK’s initiative.
If it is right that the Article 50 process can be stopped, there are profound implications. My view is that the referendum has provided the UK government with a clear mandate to negotiate a new agreement with the EU. Article 50 should therefore be triggered soon and negotiations initiated.
If the legal opinions quoted here are correct – and it is imperative that it is established, by the UK government or the EU institutions, whether they are or not – it will be possible to stop the process at any stage during the negotiation process, with the UK remaining a part of the EU. That opens up a possibility for parliament, or the people, perhaps in a second referendum, to have a say on the new deal, and to decide, perhaps two or three years down the line, whether we want to remain in the EU, or leave on the terms secured via the negotiations.