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All you need to know about how to leave the EU, and the odds on a General Election

All you need to know about how to leave the EU, and the odds on a General Election

🕔24.Jun 2016

Britain has voted to wave goodbye to the European Union, but how do we actually leave? With a new Prime Minister in the wings and a possible no confidence motion by Labour MPs against Jeremy Corbyn, could there be an autumn General Election? Chief Blogger Paul Dale has the answers.

The starting point for any EU member country wishing to leave the Union is to trigger Article 50 of the Treaty on European Union (TEU).

Article 50 TEU has never been used before, so there is no clear framework for how it would work.

There is a big question over when Article 50 should be triggered. Once a formal declaration has been made Britain would have two years to conclude new trading arrangements and border controls with the EU.

David Cameron said in his resignation announcement today that there should be no rush to trigger Article 50, and added that negotiations with the EU would be a matter for his successor.

However, EU leaders made it clear that they want the exit negotiations to begin straight away – a position that is seemingly supported by Mr Corbyn.

Is Article 50 the only way to leave?

The Article 50 TEU route is the only legal way to leave the EU under EU and international treaty law, although some have suggested there are other ways.

Vote to leave

After a vote to leave the EU, the Prime Minister would notify the European Council of the UK’s intention to withdraw. Notification would be a political decision. Legally, the referendum is not binding, although it would probably be considered politically binding.

Trigger Article 50 TEU

This would trigger the opening of withdrawal negotiations between the UK and (probably) the European Commission, based on guidelines drawn up by the European Council, without the UK’s participation.

UK negotiates withdrawal agreement with EU negotiator

The UK would negotiate the withdrawal agreement with the EU negotiator (probably the Commission) and would continue to participate in EU activities, the EU institutions and decision-making during the negotiating period. But the UK would not participate in any Council or European Council discussion of its withdrawal.

Negotiation period two years or more

The negotiation period is two years from formal notification, but could take longer if all member states agree to an extension. The other EU member states could reject the withdrawal agreement, but they could not stop the UK from leaving the EU.

Status of UK during negotiations

The UK would still be a member state during the withdrawal negotiations and would continue with business as usual until withdrawal too effect. Existing EU law would continue to apply in the UK, and it would be bound by the principle of “sincere cooperation”.

What about UK MEPs, Commissioner, Judges and staff?

Commentators seem to agree that the withdrawing state’s MEPs would be able to participate in EP business concerning the withdrawal.

In the absence of any indication to the contrary, it can be assumed that the withdrawing state’s Commissioner would continue with his/her portfolio, that the UK’s EU Court Judges would continue with their work and that staff working for the EU institutions would continue in post until withdrawal took effect.

EU Presidency in 2017

The UK could still hold the EU Presidency in 2017 in spite of a vote to leave, although politically this could be very awkward.

EEA membership

If the UK left the EU, it would no longer be a member of the European Economic Area (EEA). The UK would have to seek to re-join the European Free Trade Area (EFTA) and then apply to join the EEA. It’s possible that this could be tackled in the course of withdrawal negotiations with a view to the UK acceding to EFTA and the EEA as soon as it had left the EU, but the move would not be automatic.

The withdrawal agreement

It is unclear from Article 50 TEU how far arrangements for the leaving state’s future relationship with the EU would be included in the withdrawal agreement.

There are different opinions as to what else a withdrawal agreement might include. The content would be up to the negotiators.

Would the withdrawal agreement have to be ratified?

The Council of the EU (excluding the UK) would adopt the withdrawal agreement, having obtained the consent of the European Parliament  by a simple majority. The EP would therefore have a right of veto over the withdrawal agreement, but not over withdrawal itself.

The Council (excluding the UK) would act by an enhanced majority under Article 238(3)(b) TFEU. This requires 72% of Council Members (i.e. 20 of the remaining 27 Member States) representing at least 65% of the total population of these states.

There is no mention in Article 50 TEU of ratification of the withdrawal agreement by Member States, but this might be necessary under international legal norms.

Could the UK be prevented from leaving?

The other Member States could veto a withdrawal agreement, but the UK could not be prevented from leaving the EU two years from notification.

Re-joining the EU

If the UK wanted to re-join the EU in the future, it would have to re-apply under Article 49 TEU.

Transitional arrangements and future relationship

Transition arrangements in policy areas covered by the EU Treaties would have to be settled. The negotiators might also negotiate, alongside the withdrawal agreement, agreement(s) with the rest of the EU on the post-exit relationship (e.g. membership of EFTA or the EEA). This/these would be signed and ratified after withdrawal.

There are particular concerns about the continuation of the UK’s trading relations with third states and there is a question about possible vested rights for individuals and companies.

How would the Government manage the negotiations?

Given that EU law applies in a broad range of policy areas, a UK withdrawal would probably involve all Government departments, as well as the UK Representation in Brussels (UKREP). Exactly how they would contribute to the negotiations is not clear.

Qualified Majority Voting

Under Article 50 TEU Qualified Majority Voting (QMV) is required to agree a withdrawal agreement. But voting on a post-exit agreement not included as part of the withdrawal agreement would be different and could require the unanimous agreement of EU Member States and EP consent.

Matters to be tackled

The Government Report, The process for withdrawing from the European Union, looked at key matters that would need to be tackled in the negotiation of withdrawal and transition provisions. The list included the following:

Unspent EU funds due to UK regions and farmers.

Cross-border security arrangements including access to EU databases.

Co-operation on foreign policy, including sanctions.

Access for UK citizens to the European Health Insurance Card

The rights of UK fishermen to fish in traditional non-UK waters, including those in the North Sea.

EU-derived UK laws

The UK Government would have to decide whether to retain EU-derived UK laws, amend or repeal them. The starting point would be repeal of the European Communities Act 1972, with savings provisions.

Will there be a General Election?

Introduced in 2010, the Fixed Term Parliaments Act aimed to limit the possibility of General Elections being called at opportune moments for political gain.

However, following today’s result and Mr Cameron’s decision to trigger a leadership contest, many will now call for an election long before its due date in 2020.

There are two main ways that an early General Election could be triggered.

The first is a two-thirds majority vote by Parliament in favour of an election. As we can now expect a new Conservative leader, and prime minister, by early October, this may be achievable, especially if the new PM backs calls based on a desire to strengthen their legitimacy.

There is plenty of precedent for having a Prime Ministers unelected via a General Election serving for some time. For example, Gordon Brown never won an election after becoming Labour leader and PM, so the new Conservative Prime Minister may instruct his or her party to hold tight for 2020.

Should this happen, it seems unlikely the two-thirds majority would be achievable without a seismic split in the Conservative Party. The second way of triggering a General Election under the Act would therefore have to be considered.

This second procedure requires a straightforward majority of MPs to pass a motion of no confidence in the Government, then for no countering confidence motion to be passed within 14 days.

Of MPs who would vote, 312 out of 642 are non-Conservative .Therefore even if all of the parties, including the DUP, UUP and UKIP voted in favour of the no confidence motion, nine Conservative MPs would be required to rebel and vote against their new leader. In light of the major turmoil of the referendum campaign and result this is possible, but is by no means a given.

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