Process of Withdrawal
Notifying the intention to withdraw
Prime Minister Theresa May triggered Article 50 on the 29 March 2017, thereby formally notifying the EU of the UK’s intention to leave and beginning the departure process. This marks the beginning of the two-year negotiating period, meaning the UK is expected to leave the EU on or before the 29 March 2019.
The Withdrawal Process
First stage: Guidelines set
The first stage of the withdrawal process was for the European Council (without the participation of the UK) to provide guidelines for withdrawal negotiations between the EU and the UK.
Following discussions by Member States’ representatives (or ‘Sherpas’), EU Ministers agreed on a unified position on the draft guidelines. EU Chief Negotiator Michel Barnier then presented the EU’s negotiation directives, which translate the negotiation guidelines into a technical negotiation mandate, to the EU Council. At the General Affairs Council on 22 May, the EU27 formally adopted the directives, thus authorising the Commission to open negotiations with the UK.
The directives only cover the first phase of the negotiations, and Barnier will have to get approval from the Council before being able to begin talks on a future relationship between the UK and the EU.
The European Parliament has also voted on a resolution to inform the Council’s negotiating mandate. The resolution outlines the Parliament’s key principles and red lines, but is not binding on the Council.
Second stage: Negotiation
The second stage is for the Commission’s negotiating team, headed up by Michel Barnier, to negotiate the exit agreement with the UK on behalf of the EU, on the mandate set by the European Council (as above).
Article 50 provides only for the process of withdrawal. The UK will need to negotiate a separate future relationship with the EU, including questions of freedom of movement of people, goods, capital and services. While Prime Minister Theresa May wanted to agree the terms of the UK’s future partnership with the EU alongside a withdrawal agreement, the UK has now agreed to the EU’s sequencing of negotiations.
Phase one of the negotiations involves the agreement on the principles of Article 50, in other words the ‘divorce agreement’. This includes agreement on citizens’ rights, the financial settlement and other separation issues including Northern Ireland’s border. When sufficient progress is made on these discussions, phase two can begin. This will involve the scoping of future relations, including agreement on any transitional arrangements. Michel Barnier has said that he hopes this phase will begin in October/November 2017.
The negotiating discussions are taking place on a four-week cycle. The dates of the upcoming rounds are:
– Third round: w/c 28 August
– Fourth round: w/c 18 September
– Fifth round: w/c 9 October
It is anticipated that negotiations will need to conclude by Autumn 2018, to allow time for legal analysis, translation, and then ratification (see below) before March 2019, when the two-year time period specified by Article 50 is complete. Given that substantive discussions on the UK’s departure only began in June given the procedural requirements outlined above and the General Election in the UK, negotiators only have 16 months to reach a deal. In addition, Member States are likely to refrain from taking major political decisions before the new German government is installed in September this year (see our Upcoming Elections page for more information).
Third stage: Ratification
The third stage of Article 50 requires that the deal be approved by the UK and the EU.
The European Council and European Parliament must both consent to the final deal. The Parliament will draft and vote on a consent resolution, which must be approved by a simple majority for it to proceed. The Council will approve the deal by a super qualified majority, which means that at least 72% of the members of the Council vote in favour (in practice this means 20 of the 27 remaining Member States), and that the proposal is supported by Member States representing at least 65% of the total EU population. Once the agreement gains consent from both these institutions it can be formally adopted and negotiations concluded by the Council.
The UK Government will also need to sign the final agreement. Before this stage, Theresa May has promised that the UK Parliament will get a “meaningful” vote on the final deal. This means they will get to vote before the final deal is ratified by the European Council and Parliament. Former Brexit Minister David Jones MP has said that if the UK Parliament votes against the final deal offered, then the UK would “fall back on other arrangements”, presumably World Trade Organisation (WTO) terms. The Government wants to avoid a situation in which Ministers are sent back to the negotiating table to renegotiate a better deal, however this has not been completely ruled out.
Once the final deal is approved by the Council and the UK, necessary legal changes to Treaties must be made. Unlike the accession of a new Member State to the EU, the withdrawal of a Member State does not require ratification by the remaining Member States. However, any Treaty changes or international agreements (such as a free trade agreement) would need to be ratified by the remaining Member States. At the very least, Article 52 TEU on the territorial scope of the Treaties, which lists the Member States, would need to be amended to remove the UK, and Protocols concerning the UK revised or repealed.
Alternative scenario: Two-year time limit expires before deal reached
The above assumes that the Article 50 agreement is concluded before the two-year time period expires. If negotiations fail, or the two-year time limit expires before an agreement is reached, membership ends automatically unless the European Council, on behalf of the other 27 Member States, and the UK jointly decide to extend this period or agree upon a transitional arrangement.
Can the UK change its mind after giving notification of withdrawal?
There is no provision for withdrawing the notification, and analysts are split on either side of the question. Some suggest that because Article 50 has specific provisions on when the Treaties cease to apply and how a former Member State could re-join, it is read as implying that notification cannot be withdrawn. Others have argued that there is nothing in the wording of Article 50 to say that a country can’t change its mind. A legal analysis of Article 50 from the UK House of Lords concluded that Britain “could legally reverse a decision to withdraw from the EU at any point before the date on which the withdrawal agreement took effect”. During the Article 50 legal challenge, the Supreme Court avoiding resolving this question as all parties to the case agreed to proceed on the basis that Article 50 is irrevocable.
The Government’s ‘Repeal Bill’
At the Conservative Party Conference, Theresa May announced that her Government would introduce a ‘Great Repeal Bill’. Now titled the European Union (Withdrawal)Bill, the flagship piece of Brexit legislation was published following the General Election and the Queen’s Speech 2017.
The purpose of the Bill is to transpose the EU acquis on to the UK statute book. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU.
The Bill has only had its first reading: the initial stage of a Bill’s passage through Parliament. The next stage – second reading – will be the first opportunity for MPs to debate the general principles and themes of the Bill, and is expected to take place after summer recess. The Government’s aim is for the Bill to have completed its passage before the point at which the UK leaves, so that it comes into force from the day that the UK leaves the EU, allowing for legal continuity.
This is the first of eight Brexit related Bills that the Government announced it would bring forward in the Queen’s Speech. The other Brexit Bills are:
– A Customs Bill
– A Trade Bill
– An Immigration Bill
– A Fisheries Bill
– An Agriculture Bill
– A Nuclear Safeguards Bill
– An International Sanctions Bill
Here are the key players influencing how Brexit will be shaped. Click on each name to reveal full details on each.
Issues on the Table
The result of the General Election has served to significantly weaken the Prime Minister, whilst also empowering other Cabinet members and backbench MPs, both in her party and across the benches, therefore re-opening the debate on Brexit positioning. To find out more on the gauge of the UK’s negotiating position, the likelihood of the Government achieving various types of soft to hard deals and the Parliamentary arithmetic underpinning the negotiations, you can view Cicero’s Brex-o-meter here.
The view from the EU
Below is a heatmap of the Member States’ domestic political factors that will impact Brexit negotiations.
† Visegrad Group = Czech Republic, Hungary, Poland and Slovakia.
Click on each country to reveal full details on each. You can also find more analysis here.