Article 50 – what next? By British Chinese barrister Jackson Ng from the Conservative Party conference

Jackson Ng with the Secretary of State for International Trade, the Rt. Hon. Dr. Liam Fox MP

Jackson is a Partner (barrister) at a boutique law firm based in the City of London, Political Advisor in Parliament and Director of Conservative Friends of the Chinese. He is also the Vice Chair of his local Conservative ward and a Regional Network Co-ordinator for the Conservative Party’s Candidates Team.

A lot of people must be wondering what happens now after the Prime Minister’s announcement yesterday to trigger Article 50 by end of March 2017 – setting in motion the 2 year process of leaving the EU. The pledge made at the Conservative Party Conference this year in Birmingham to the Tory Party faithful simply means that the UK is likely going to leave the EU by spring 2019.

So, what is the working process to extract ourselves out of the EU and how long will it take. There has been many mentions and discussions about Article 50 in the press since June and I thought that this might be a good opportunity to explain to some what Article 50 really is as it has never been used, and since its content is expected to be contested fiercely between EU lawyers and UK government lawyers.

Article 50 of the Lisbon Treaty allows a member state to notify the EU of its withdrawal and obliges the EU to try to negotiate a ‘withdrawal agreement’ with that state – it involves five points laid out below:-

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.
  3. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
  4. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
  5. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
  6. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

Without being over legalistic, here are some key points to understand / point out about Article 50:-

(1) Only the UK government can decide when to invoke Article 50 – it is not designed for the EU to eject a country from it.

(2) Can Article 50 be used to strike a new trade deal with the EU? –  No in short. Legally, most lawyers in the EU and the UK would only interpret Article 50 strictly for only deciding the terms of the withdrawal — basically ending the obligations and responsibilities that come from being an EU member. However in practice, I am sure that currently behind the scenes, informal talks with the EU and certain European governments have already begun to trigger Article 50 but also parallel discussions on our future trading relationship with the EU.

(3) Article 50 organises how the EU will negotiate with the exiting member state, sets a two-year renewable deadline for negotiations and the voting arrangements to reach an agreement (requires a weighted majority) or extend the deadline (requires unanimity).

(4) The EU Treaties would cease to apply to the UK on the entry into force of a withdrawal agreement or, if no new agreement is concluded after two years, unless there is unanimous agreement, to extend the negotiating period to say 3, 4 years or even more. With the ‘great repeal bill’ also announced today, we will incorporate all EU regulations in UK law as soon as Brexit takes effect (with the future government then unpicking those EU regulations that we do not want).

(5) During the two-year negotiation period, EU laws would still apply to the UK. The UK would also continue to participate in other EU business as normal, but it would not participate in internal EU discussions or decisions on its own withdrawal.

(6) On the EU side, the withdrawal agreement would be negotiated by the European Commission (represented by the former French foreign minister and EU Commissioner Michel Barnier) following a mandate from EU ministers and concluded by EU governments “acting by a qualified majority, after obtaining the consent of the European Parliament.” This means that the European Parliament would be an additional unpredictable factor in striking a deal and that they could strike a setback on any negotiations. Furthermore, elections in France and Germany with potentially new governments and positions could prolong matters further.

(7) Legally, if the withdrawal agreement also cuts across various policy areas within the preserve of the member states, such as certain elements of transport, services and investment protection – as many recent EU Free Trade Agreements have done – it could very well be classed as a ‘mixed agreement’ and most probably will require additional ratification by every national parliament in the EU – this will lead to more uncertainty and legal / political wrangling for the UK and also EU. Issues such as the rights acquired by EU and UK citizens abroad, UK’s remaining financial liabilities in EU programmes and international obligations acquired by the UK as an EU member are expected to be complex.

What to look out for…the Prime Minister and her government and to a certain degree the Conservative Party needs to decide on whether they still want to push for some sort of an access to the single market, i.e. a soft Brexit or in contrast simply a hard Brexit. The EU and other European nations have said repeatedly that access can only come at a price of free movement for European migrants workers, an acceptance of the single market’s rules and regulations and contribution to the EU budget whilst the Prime Minister has said yesterday to a cheering Tory crowd that the country will not compromise on its position and control over immigration – clearly there will be lot of wheeling and dealing politically behind the scenes in order to square this circle.

Furthermore, to repeal the European Communities Act 1972 which was also mentioned today, the process requires Parliament to get involved. Since we have more or less seen a collapse in Her Majesty’s Opposition with various internal Labour Party issues, one might expect the repeal to have a smooth ride through Parliament for the Prime Minister but she has a wafer thin majority and a House of Lords where the Conservatives are a minority, this could very well all get rather interesting.

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