English, OxPol, Politics Negotiating Brexit: The Legal Framework
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English, OxPol, Politics

Negotiating Brexit: The Legal Framework

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Many voters would expect a Brexit vote to lead to immediate action by the UK to over-ride EU rules, but leaving the EU would be a process rather than an event

By Derrick Wyatt*

Many voters and some politicians would expect a Brexit vote to lead to immediate action by the UK to over-ride EU rules, including restrictions on EU immigration. Some sections of the press would call for no less, and demand a quick fix for immigration, and a quick fix for a new trading relationship with the EU in which trade “just means trade.”

Leaving the EU would be a process rather than an event

But leaving the EU would not be like this. It would be a process rather than an event. The UK would remain in the EU until it had negotiated a withdrawal agreement. It would probably also seek to remain in the EU until it had also negotiated an agreement on its future relationship with the organisation, so that its progress from EU membership to a trading agreement could be as smooth as possible. It is impossible to predict how long this process would take, but it is likely the UK would remain “in” for the duration of the present Parliament.

The starting point for discussion is Article 50 of the Treaty on European Union, which lays down the procedure that applies if a Member State notifies the European Council that it intends to withdraw from the EU. Under this procedure, the departing Member State negotiates a withdrawal agreement with the other EU members. Normally the Union only negotiates international agreements with countries outside the EU. This procedure is an exception that allows a Member State to negotiate an international agreement with the rest of the EU before it actually leaves. The UK would not however sit on both sides of the negotiating table – it would be excluded from any meetings of the European Council or Council involving the withdrawal agreement.

Article 50 is silent on the procedure for negotiating a departing member state’s new relationship with the EU

The EU-UK withdrawal agreement would not itself provide the basis for the UK’s future relationship with the European Union. Article 50 recognises this, and provides that the withdrawal agreement shall take account “of the framework for its future relationship with the Union.” This presupposes that this framework is known, and it could only become known as a result of negotiations between the UK and the EU about that future relationship. Article 50 is silent on the procedure for negotiating this agreement. This is not surprising, since the EU would be bound to follow the procedures that apply to the various types of international agreement that it might negotiate with the UK, and the applicable procedure would depend on the content of the agreement being negotiated.

My own guesstimate is that that the UK would seek to negotiate a comprehensive trading agreement with the EU, which would also involve measures of cooperation between them, and that the agreement would in EU terms be an “association agreement” subject to unanimous voting in the Council on the EU side.

If the UK’s future relationship with the EU would not be covered in the withdrawal agreement, what would be? I was asked by the House of Lords Committee what I thought would be the most complex elements of the withdrawal agreement to negotiate. My answer was that if the UK’s future relationship did not maintain current rules on free movement of people, the trickiest issue would be over acquired rights and transitional issues for workers and self-employed individuals in the UK and EU.

It is estimated that two million British citizens live in the EU, and that two million EU citizens live in the UK. British and other EU citizens who have lawfully resided in another Member State for five years have acquired a right of permanent residence, subject to conditions, in that State under EU law. They also enjoy the right to work on an employed or self-employed basis, and rights of access to healthcare and social benefits in the Member State in which they reside.

A withdrawal agreement would probably provide for recognition of these acquired rights, and for the conditions for continued retention of those rights. This might involve continuing to apply certain EU rules to individuals who would otherwise no longer be covered by the EU rules, because it had been agreed that this was the fairest thing to do, on a reciprocal basis. But what of individuals who have not acquired a right to permanent residence? What transitional rights should somebody have who has been working for, say, four years in the UK and has children at school? Or somebody who has lived here for two years, is self-employed, and employs a dozen people? And let us not forget that for every example of an EU citizen resident in the UK there is an example of a UK citizen resident in the EU. Sorting all this out would take time. The question of identifying acquired rights, and providing transitional arrangements, would also arise in connection with the business activities of companies and firms.

When would the UK actually withdraw from the EU? Certainly when a withdrawal agreement with the EU entered into force. But Article 50 provides that withdrawal will in any event take place two years after notification of intent to withdraw, unless the European Council and the departing Member State agree to the contrary.

Would the UK want to extend this period? I think it might well want that. There would be two likely reasons. One would be that the negotiations on the withdrawal agreement had not been finalised, meaning that aspects of the legal rights of British citizens and British businesses in other EU countries could be left in limbo. The second likely reason would be linked to the first – the agreement on future relations had not been finalised. The extent of necessary recognition of acquired rights and the need for transitional arrangements would depend on the future relationship between the UK and the EU, so negotiation of the two agreements would be linked. But apart from this, the UK government of the day would probably want the agreement on future relations to proceed as smoothly as possible on from EU membership, without the dislocation of an interim period of trading with the EU under WTO terms, with UK exports being subject to the common external tariff, and unsatisfactory terms of access for UK services and in particular financial services.

It would be in the interest of the rest of the EU for trade to continue uninterrupted

Even if the UK wished to remain in the EU to ensure a smooth transition to whatever trade and cooperation relationship lay beyond EU membership, why should the other Member States agree to this? It would be in the interests of the rest of the EU for trade to continue uninterrupted, for free movement of people to continue uninterrupted, and for the UK to continue to pay its contributions to the EU budget.

But, if collective tempers had frayed, it might not happen. Some countries might be disgruntled at the UK’s position (whatever it might be) on acquired rights for their nationals resident in the UK, and those same countries might see future access (or non-access) of their citizens to the UK as being as important to them as arrangements re trade in goods or, say, financial services. Collective tempers would be likely to fray if the UK imposed unilateral immigration controls in advance of negotiation of a withdrawal agreement under Article 50.

If the UK was not applying immigration restrictions on EU immigrants prior to withdrawal, which would be likely to be the case, there might be domestic political pressure to withdraw from the EU before negotiations were completed in order to apply such controls. That pressure might be reduced if EU immigration had in any event fallen back, as it might well have done. Forecasting the politics is extremely difficult, as is forecasting the events that influence the politics.

Remaining in the EU until a successor agreement had been negotiated would ensure the smoothest possible transition

But remaining in the EU until a successor agreement had been negotiated would ensure the smoothest possible transition from EU membership to whatever trade and cooperation agreement the UK negotiated with the EU. That said, nobody can guarantee that the substance of the agreement would be a good outcome for the UK, in terms of comparability with the current position, in which the UK enjoys access to the single market, and participates in key decisions about trade, the environment, and international peace and security. At the end of the day, the negotiations between the UK and the EU on the withdrawal agreement, and on the future relations agreement, would be one long exercise in damage limitation.

Legal Evidence to the House of Lords EU Select Committee

On 8 March Professor Derrick Wyatt QC presented expert legal evidence to the House of Lords EU Select Committee on the process which would apply if the UK voted to leave the EU. Sir David Edward also presented expert legal evidence. Watch the video here.

 

This article was originally published on OxPol. Read the original here

*Derrick Wyatt has been a Fellow of St. Edmund Hall since 1978, received the title of Professor in 1996, and retired in 2009. His teaching included EU law, constitutional law, and public international law. He was Visiting Professor of Law at Oxford 2009 – 2014, teaching the law of the EU’s internal market.

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