A guide to Brexit, part 2: What’s the process for negotiating a British exit from the EU?

By on 30/06/2016
A guide to Brexit, part 2: What’s the process for negotiating a British exit from the EU?

This is part 2 of our guide to Brexit. In this section we examine the ‘Article 50’ process for shaping a British exit, and explore the immediate aftermath of the UK’s momentus referendum.

Part 1 asked: how did the UK get here? In part 3, we explain the process for negotiating Brexit. Part 4 asks whether Brexit could be averted; and in the final section, part 5, we explore the potential outcomes and offer some concluding thoughts.

The fall of David Cameron

So here we are. The government gave Britain’s people the choice – and now it must deliver a Brexit.

The process for an EU member to leave the club was set out in Article 50 of the 2007 Lisbon Treaty. We’ve explored Article 50 in more detail in a previous interview with Sir Paul Jenkinswho was Treasury Solicitor and the government’s chief legal adviser between 2006 and 2014. But the crucial facts are these.

Once the government has given the European Commission (EC) notice, it has two years to negotiate a settlement. At the end of that period, any agreement must be approved by the European Parliament and by a ‘super qualified majority’ of states – meaning at least 20 countries, comprising at least 65% of the remaining members’ combined population. The two-year period can only be extended by unanimous agreement of all 27 remaining members. And if no agreement is reached, the UK departs with no special access to the single market and no arrangements for crucial matters such as British citizens’ rights to travel, work and trade in the EU.

Shortly after the Leave vote, UK prime minister David Cameron announced that he would be stepping down by the Conservative Party conference

Shortly after the Leave vote, UK prime minister David Cameron announced that he would be stepping down by the Conservative Party conference

It was clear to most observers that if the PM lost the referendum, he’d have to quit: “I don’t buy this idea that Cameron can lose the vote and stay; I think he’d have to go,” Jenkins told us four weeks ago. The man who’d fought for us to stay in the EU could not credibly undertake the herculean task of extracting us from it. Nor could he press the Article 50 button, for that would be to impose deadlines on his successor and put the EU in the driving seat. “It would have been an act of pure revenge,” comments Jenkins – particularly because, with no new UK PM in place and Brussels off on their summer holidays, the first few months would have been wasted.

So Cameron resigned, announcing that the Tories would have to choose a new leader before their party conference in early October. And immediately, two things became clear: the EU, desperate to minimise the huge uncertainty caused by Brexit, was in a big hurry to get on with talks; and the Leave camp had no idea what to do next. As Lord Turnbull, the UK’s cabinet secretary between 2002 and 2005 notes, they had no settled plan, no manifesto; many commentators agree with Soubry that the Leave group’s top leaders didn’t even expect to win.

Looking for the exit

In fact, the only people who had any idea what to do next were the Bank of England and the Treasury – for they had made arrangements to calm the markets in the event of a Leave vote, and introduced a £250bn backstop to prevent a market shock from turning into a panicked rout.

Given the massive political uncertainty that was bound to result from a Leave vote, there was little more the civil service could do. They’d need clear political direction to start working up negotiating positions – and whilst the Leave campaign knew what it was heading away from, there was no established view on where it was going. So the civil service had only “plans for how to start to set up plans”, says Jenkins: a model for setting up a Brexit team, an idea of how to go about staffing and preparing it, and some thoughts on how to manage the first contacts with EU officials and leaders.

Bank of England governor Mark Carney

Bank of England governor Mark Carney

Like the vote itself, this lack of preparedness came as a shock to the EU, whose leaders initially began calling for an immediate Article 50 notification. But as Dave Penman, general secretary of civil service managers’ union the FDA says, the PM began “talking to other EU leaders explaining that a bit more time is needed, and that changed the tone of the messages coming out of Europe.” Cameron also worked to compress the Tory leadership contest, cutting it from three months to two – and the EU now appears happy to wait at least that long.

On Article 50 – and the alternative

German chancellor Angela Merkel has, however, ruled out any informal talks before Article 50 is triggered – killing the hopes of some Leave campaigners (and some defeated Remainers) that a settlement could be scoped out before the UK set off down that one-way road. “We should not wait a long time. I do understand that the UK will consider things for a while,” Merkel said on Monday; however, “there cannot be any informal negotiations until we get that [Article 50] message from the UK.”

UK and EU officials are currently discussing the ‘modalities’ of negotiations, holding ‘talks about talks’ to decide how the meetings will be structured and run. Throwing in another wild card, prominent Brexit campaigner and select committee chair Bernard Jenkin has argued that the UK should simply act on its referendum mandate and leave without talks. Britain cannot “continue to be bound by a clause in the Lisbon Treaty which the voters have just rejected in the referendum,” he wrote yesterday in Civil Service World, arguing that the government and Tory leadership candidates should “commit to bring forward the necessary legislation to repeal the [1972 European Communities Act] as swiftly as possible.”

German chancellor Angela Merkel

German chancellor, Angela Merkel

This position, however, ignores some hard realities. If Britain left without an Article 50 agreement, its citizens living and working in the EU could suddenly be deprived of their right to remain there, whilst millions of Europeans in the UK could suddenly become illegal immigrants. And large swathes of British law built around EU directives could instantaneously lose their legislative foundation, opening up a legal minefield. Acting in this way would also scupper any chances of agreeing a good trade deal or forging a working relationship with the EU, whilst plugging these huge legal gaps will be the work of years – so Jenkin’s plan looks unlikely to gain traction.

Given the bizarre chain of miscalculations, errors and events that have brought us to this position, though, it would be foolish to rule anything out.

Click here to move to part 3, which outlines the civil servants and politicians likely to manage the Brexit process, explains how a new set of national leaders will emerge, and examines the potential for a general election

 

For up to date government news and international best practice follow us on Twitter @globegov

See also:

A guide to Brexit, part 1: how Britain voted to leave the EU

Is the EU referendum result a wake-up call for employers?

Olly Robbins appointed head of government’s new Brexit unit

Oliver Letwin ‘completely unsuitable’ to lead Brexit unit, says former cabinet secretary

Brexit will be ‘largest legal, legislative and bureaucratic project in British history’, says former UK Treasury Solicitor

Clash over civil service advice in EU referendum

Bank of England’s independence under threat in EU referendum row

EU issues Poland with official warning over constitutional court changes

Sir Paul Jenkins, former UK Treasury Solicitor: EU Referendum interview

Managing the EU Migration Crisis

European Parliament orders Poland’s government to reverse changes to country’s top court

A family reunification dilemma for the EU

About Matt Ross

Matt is a journalist and editor specialising in public services, policymaking, government and management. He was the editor of trade title Civil Service World from 2008 to 2014, serving an audience of senior UK officials; and the features editor of weekly news magazine Regeneration & Renewal between 2002 and 2008, covering urban regeneration, economic growth and community development. He has also been a motoring and travel journalist, and now combines his role as editorial director of Global Government Forum with writing for other publications including The Guardian and Planning magazine.

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