An EU Neverendum: Should the UK keep voting on its EU membership?

 

Steve Peers

A recent press storysuggested that supporters of the ‘Out’ side in the upcoming referendum are already planning to argue, in the event of an ‘In’ vote, that a further referendum must be held again within a few years. At first sight, it looks as if at least these ‘Out’ supporters expect to lose the referendum, and are planning to be sore losers at that. I wonder if that is a helpful message for them to send – but then it’s not my role to advise the ‘Out’ side on strategy.

But is it intrinsically outrageous to suggest that there should be a further referendum on the issue? The ‘Out’ side can reasonably argue that they are only copying the strategy of pro-EU politicians, who pushed for fresh votes in Denmark and Ireland after three referenda in those states voted down the Treaties of Maastricht, Nice and Lisbon, and repackaged the Constitutional Treaty after it was defeated in the French and Dutch referenda. In principle, that’s a fair point to make: but if the ‘Out’ side are going to make it, they can no longer criticise the pro-EU side for being ‘undemocratic’ when it pushed for repeat referenda. In fact, the anti-EU side already have form on this issue themselves – since they went back to the Czech Constitutional Court to challenge the Lisbon Treaty a second time, when they didn’t like the first court ruling. The judges weren’t impressed.

Repeated referenda are not unheard of in other contexts or countries: Ireland has had several referenda on divorce and abortion, and Quebec has twice voted on separation. Many Scottish nationalists also aspire to a second independence referendum in the foreseeable future. So I don’t think one can simply argue that referenda should never be repeated. But I do think that they should only be held in certain circumstances.

What circumstances are these? In my view, there are two: a significant change in circumstances, and the conditional nature of the vote. These two criteria may well be present at the same time. The first of these criteria justifies having a new vote on the UK’s membership now, given the changes that have occurred since the last vote in 1975: five major Treaty amendments and five enlargements of the EU, leading to much greater ‘immigration’ of EU citizens to the UK. The second Quebec separation vote was justified on the basis of the second criterion: Quebeckers voted ‘no’ to independence in 1980 on the premise that the Canadian constitution would be amended to address their grievances. Two attempts to agree such amendments then failed, and that was the rationale for having another independence vote in 1995. Some Scots argue similarly that promises of greater devolution to Scotland made in the 2014 independence referendum are being broken; and many Scots believe that if the UK votes to leave the EU while Scotland votes to stay, the first criterion would be satisfied.

How do we apply these criteria to the EU referenda? In all the cases where a second referendum was held, there were intervening changes in circumstances. There were Decisions and Declarations by the EU which directly addressed those concerns of the Irish and Danish voters who had voted ‘No’. The Constitutional Treaty was scrapped as such, and replaced by the Lisbon Treaty, which contained most of the same substantive text, but without the ‘constitutional’ trappings of the failed treaty which had outraged the anti-EU side so much at the time.

Applying these rules to the UK’s planned EU referendum, there would be a case for a new vote if there were intervening changes in circumstances, which directly refuted the basis for voting ‘In’.  Equally there would be a case for a fresh vote, if most or all of the case for the ‘In’ side was based on conditional promises of EU reform which then did not take place.

Of course, two can play this game. It must equally follow that in the event of an Out vote, there would be an argument for holding a fresh referendum on the basis of the same two criteria. Article 50 TEU, the ‘withdrawal’ clause, expressly provides that a State can apply to rejoin the EU if it leaves. It’s also arguable that a State can cancel its withdrawal request, although Article 50 is not clear on this point either way. Certainly it’s possible to suspend a withdrawal request de facto, by delaying the withdrawal date indefinitely. (See further my discussion of Article 50 here).

What would this mean in practice? Applying the first criterion, it’s possible that the remaining EU would be upset at the prospect of UK withdrawal so much that it offered a new renegotiation package before it happened. Or imagine that in the longer term, the EU changed profoundly, allowing for more restrictions on the movement of people and a greater number of vetoes for national governments and parliaments. There would then be a good case for holding a vote on rejoining. Applying the second criterion, there would be a case for a second referendum if the conditions set by the Out side were not satisfied in practice: for instance, if there were no satisfactory trade deals with the remaining EU and many third States, or if the UK still had to pay a price in return for trade access (contributions to the EU budget, acceptance of EU regulation, the full free movement of people) which the Out side had claimed that it would not have to pay.

 

Art credit: M.C. Escher

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Article 50 TEU: The uses and abuses of the process of withdrawing from the EU

 

Steve Peers

If the UK holds a ‘Brexit’ referendum on its continued membership of the EU in near future, voters will be hearing a lot about Article 50 of the Treaty on the European Union (TEU), the Treaty provision which regulates the process of a Member State withdrawing from the EU. We have already begun to hear about this clause, with some suggestion that it should be invoked in order to trigger a renegotiationof UK membership. Most recently, a former UK cabinet minister, Owen Paterson, has suggested that the UK should invoke the clause. But what are the legal and political constraints upon using it?

The text of Article 50

Article 50(1) TEU provides simply that any Member State can withdraw from the EU in accordance with its own constitutional rules. The key part of Article 50 is the next paragraph, which states that:

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. 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.

(Note that the European Council is the EU institution consisting of Heads and State of Government, and Article 218 of the TFEU is the provision dealing with treaties between the EU and third countries).

Article 50(3) TEU then sets out the timing of withdrawal. The UK would cease to be an EU Member State either at the date of entry into force of the withdrawal agreement or, ‘failing that’, two years after the notification of its intention to withdraw from the EU, unless the European Council and the UK unanimously agree to extend that period. (Of course, Article 50 applies to any Member State that might choose to leave, but I will focus my comments on the possibility of the UK withdrawing in particular).

According to Article 50(4), during this period, the UK could not participate in discussions concerning it in some EU institutions – namely the European Council and the Council, which comprises Member States’ ministers.  A ‘qualified majority’ vote would be recalculated without the UK.

Finally, Article 50(5) says that the UK could rejoin the EU again after its withdrawal. This would be subject to the same rules applying to any other country which asks to join the EU.

What does Article 50 mean?

Article 50 TEU was added to the Treaties by the Treaty of Lisbon. It confirms the possibility to leave the EU that many (but not all) legal observers believed existed beforehand. No fully-fledged Member State has in fact left the EU before or after the entry into force of the Treaty of Lisbon, although some parts of Member States have done so. Before the Treaty of Lisbon, this was accomplished by means of Treaty amendment (an amendment just to remove Greenland was ratified in the 1980s, and Algeria’s independence from France was finally recognised as part of Treaty amendments in the 1990s). After the Treaty of Lisbon, there’s a special procedure relating to small parts of Member States (or their associated territories) becoming less (or more) connected to the EU. But it doesn’t apply to entire Member States, or even to territories linked to the UK (the Channel Islands, the Isle of Man and Gibraltar).

So Article 50 confirms the possibility of Member States to leave the EU, and it is clearly the only legal route to leave, as a matter of EU law. There’s no possibility to throw a Member State out of the EU against its will, although its membership could be suspended if there are serious and continued breaches of human rights, democracy and the rule of law (Article 7 TEU). That clause has never been used to date either.

What are the crucial features of Article 50?

The first crucial feature is the timing of withdrawal. An official notification to withdraw will automatically result in the UK ceasing to be a Member State of the EU, as of two years from the date of notification, unless one of two things happens: a withdrawal agreement sets a different date, or the UK and the remaining Member States (voting unanimously) agree to extend that time limit. Presumably the date of the withdrawal agreement could be set either before or after the two-year default time limit.  

One important point is not explicitly addressed: would it be possible to withdraw a notification to leave the EU? In the absence of explicit wording, the point is arguable either way. It could be argued that since a notification to withdraw is subject to a Member State’s constitutional requirements, the Treaty therefore leaves to each Member State the possibility of rescinding that notification in accordance with those requirements. On the other hand, it could also be argued that Article 50 only provides for two possibilities to delay the withdrawal of a Member State from the EU once notification has been given (an extension of the time limit, or a different date in the withdrawal agreement). There’s no suggestion that this is a non-exhaustive list. Therefore the notification of withdrawal can’t be rescinded.

Would it be possible to circumvent this by the European Council and the UK agreeing to extend the deadline indefinitely? This would probably be open to challenge (and it surely would be challenged in practice by Eurosceptics who wanted to ensure the UK’s departure from the EU). While such an indefinite extension is not explicitly ruled out, the logic and context of Article 50 suggests that extensions of the time limit are temporary. It’s Article 50(5) that expressly provides for rejoining the EU after withdrawal. If the Treaty drafters had intended there to be other means to remain an EU Member State after notifying withdrawal, they would surely have said so expressly.

This legal issue has important political implications. It means that it would be foolish, as is sometimes suggested, to invoke Article 50 as a means of forcing a renegotiation of UK membership of the EU. Legally speaking, it’s just not possible to do this. It’s obvious from Article 50(2) that invoking Article 50 leads to negotiations on the UK’s departure from the EU, not about Treaty amendments or changes to other forms of EU law. While it is likely that if the UK left the EU, there would be a separateTreaty amendment agreed by the remainingMember States (at the very least, to remove mentions of the UK from the Treaties), the Treaty drafters clearly did not want Article 50 itself to be used for the purpose of renegotiating EU membership or amending the Treaties in any way.

This is obvious when we compare Article 50 to Article 48, which elaborates a number of different ways of amending the Treaties, and to Article 49, which states that an accession Treaty can amend the Treaties. In contrast, Article 50 makes no mention of Treaty amendments. And this makes perfect sense: why should a Member State leaving the EU have a say in Treaty amendments that won’t affect it?

Politically speaking, invoking Article 50 as a means of triggering Treaty amendment would be foolish too. Once the UK gives notification of its intention to leave the EU, it will be forced out two years afterward, unless allremaining Member States agree to extend that deadline. So triggering Article 50 in the context of a renegotiation of UK membership would immediately give leverage to all the other Member States: we would be forced out of the EU unless we agreed to whatever terms they were willing to offer. Even if they were willing to be fairly generous, it would look as if we were forced to agree those terms as a condition of remaining a Member State.

All this suggests that those who wish to invoke Article 50 as a means of renegotiation actually have the objective of ensuring that the UK leaves the EU. There’s nothing unprincipled when those who openlyfavour the UK leaving the EU advocate invoking Article 50 to that end. But those who claim to support invoking Article 50 to trigger renegotiation either have a hidden agenda or are quite naïve about what they are suggesting.

Secondly, as to the content of the negotiations, Article 50 provides for the negotiation of a withdrawal arrangement, not a deal on the UK’s future relationship with the EU. This is obvious from the wording of Article 50(2), which refers only to taking account of that ‘future relationship’ in the withdrawal arrangement. In practice, the details of the withdrawal arrangement and the treaty establishing that future relationship would be closely linked. Probably the withdrawal treaty would, among other things, aim to regulate a transition period before the treaty on the future relationship entered into force.

In this context, it should be noted that (contrary to what is sometimes asserted), there’s no legal obligation for the remaining EU to sign a free trade agreement with the UK. The words ‘future relationship’ assume that there would be some treaties between the UK and the EU post-Brexit, but do not specify what their content would be.

This point is politically significant because while the withdrawal arrangement would be negotiated by a qualified majority, most of the EU’s free trade agreements are in practice ‘mixed agreements’, ie requiring the consent of the EU institutions and ratification by all of the Member States. That’s because those agreements usually contain rules going outside the scope of the EU’s trade policy.  While it seems likely that in practice the remaining EU would be willing to enter into a trade agreement with the UK (see, for instance, the ‘gaming’ exercise conducted by Open Europe), the unanimity requirement would complicate this.

It has been argued that a post-Brexit UK could simply retain its membership in the European Economic Area (EEA), a treaty between the EU, its Member States, and Norway, Iceland and Liechtenstein which extends the EU’s internal market rules to the associated States. I will come back to this idea in a future blog post. But for now, suffice it to say that the EEA includes the free movement of persons, an aspect of EU membership that particularly upsets most UK critics of the EU (indeed, that's why UKIP rules EEA membership out). Although the EEA does contain a safeguard clause permitting the suspension of some obligations, that clause permits the other party to retaliate. So if the UK suspended the free movement of EU citizens, the EU would likely retaliate by suspending access to the EU by the UK financial services industry, and/or removing tariff preferences for UK car exports to the EU.

Two final points. First of all, it’s sometimes suggested that that the UK could ignore the Article 50 process, and simply leave the EU without invoking that clause. As a matter of domestic law, that’s certainly correct. Our membership of the EU depends upon the European Communities Act, and Parliament could end that membership by repealing that Act.

But politically and economically speaking, this option is insane. It would leave many practical details of withdrawing from the EU unresolved, such as payments of EU funds to UK recipients. Even if the UK could revert its membership of the EEA, that would only govern the trade arrangements with the EU, not issues outside the scope of the EEA. For instance, it would immediately end the UK’s involvement in the European Arrest Warrant (EAW). Unless we had negotiated a transitional and/or replacement arrangement – which is obviously the point of having the two-year period set out in Article 50 – defence lawyers would argue that any EAWs which the UK had issued to other Member States, and any EAWs issued by other Member States which the UK was seeking to execute, were invalid. That would mean that no fugitives could be arrested or detained on the basis of those invalid EAWs, and those already detained would have to be released.

More broadly, such a ‘unilateral declaration of independence’ would destroy the UK’s credibility as a negotiating partner with the remaining EU, and indeed with anyone else, given the clear contempt that it would display for the legal rules which the UK had previously accepted. It would be a long time before the UK could plausibly claim again that it had a record of ‘fair play’ in international negotiations.

Finally, what about Owen Paterson’s specific suggestion that the UK should leave the EU before holding the Brexit referendum – which would then be a choice between EEA membership on the one hand, and full EU membership (including participation in Schengen and the single currency on the other)?

The basic problem with this suggestion is that it is utterly and totally undemocratic. Over the last twenty years, the UK constitution has developed an unwritten convention that major constitutional changes need to be approved by a referendum. This convention has only once been applied at national level during this time (as regards changes to the voting system), but it has frequently been applied in regions and cities across England, as well as in Scotland, Wales and Northern Ireland.

Leaving the EU is clearly such a major constitutional change that a referendum is required before it happens, not after.  Indeed, this is recognised by David Cameron’s policy of renegotiation and a referendum. It isn’t clear from the UKIP website whether that party would hold a referendum before leaving the EU or not, although that party’s leader has made reference to a referendum pledge as a condition of supporting another party after the next general election. 

This now-established principle of the British constitution cannot and should not be set aside for the convenience of securing a tactical advantage for those who dislike the EU. Paterson’s suggestion would in fact rob the British public of voting either for the status quo of EU membership (which does not involve the single currency or Schengen) or for any renegotiated agreement which David Cameron might renegotiate (which will also surely not involve either feature of EU law).  A Brexit referendum should never be held on such an unprincipled basis.

Barnard & Peers: chapter 2

 

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