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.
What happens when Article 50 is triggered?
First stage: Guidelines set
The first stage of the withdrawal process is for the European Council (without the participation of the UK) to provide guidelines for withdrawal negotiations between the EU and the UK. European Council President Donald Tusk sent the first draft of the negotiating guidelines to Member States within 48 hours of the UK triggering Article 50.
These draft guidelines will be first discussed by Member States’ representatives (or ‘Sherpas’) on 11 and 24 April, followed by a meeting of the General Affairs Council on 27 April, where EU Ministers will agree on a unified position ahead of the 29 April European Council.
In addition to the Council’s procedural requirements, a second document with more detailed guidelines will have to be proposed by the Commission and adopted unanimously by the Council for Michel Barnier, the EU’s Chief Negotiator, to be able to sit at the negotiating table.
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.
Once the guidelines are set by the Council, the opening of negotiations will be authorised.
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).
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 are only likely to start in June given the procedural requirements outlined above, negotiators will 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).
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. In her letter triggering Article 50, May stated that she wants to agree the terms of the UK’s future partnership with the EU alongside a withdrawal agreement. EU negotiators have previously taken a hard line on this stance, insisting that a withdrawal agreement must be concluded first, and the future framework for the UK’s relationship with the EU should be agreed at a later date. However, the EU Council in its draft negotiating guidelines has softened this stance, saying that while disentanglement of the UK from the EU and citizens’ rights must be covered first, before looking at a future trade agreement and a transitional arrangement, this will be done in a phased approach. The second phase will begin after “sufficient progress” has been achieved in the first. It therefore seems possible that the two sets of negotiations could overlap.
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. 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”.
While the Supreme Court was able to avoid this question in the Article 50 case, there is a separate legal challenge lodged at the Irish High Court. Led by Jo Maugham QC, this challenge specifically seeks clarification on the revocability of Article 50, asking the Irish High Court to refer the question to the European Court of Justice. If permission is granted, a full hearing is likely to be held in the Spring.
The Government’s Great Repeal Bill
At the Conservative Party Conference, Theresa May announced that her Government will introduce a Great Repeal Bill. The Bill will repeal the European Communities Act 1972, which provides legal authority for EU law to have effect as national law in the UK, and will transfer all EU laws currently in force onto the UK statute book. It will also create the necessary powers to correct the laws that do not operate appropriately outside of the EU.
Without the Great Repeal Bill, when the UK leaves the EU all rules and regulations covered by EU law would no longer have effect in the UK, which would effectively create a ‘black hole’ and lead to uncertainty and confusion. The Government therefore plans to carry EU law over into UK law at the point that the UK exits the EU, to allow for a “calm and orderly exit”, and to give the Government and Parliament more time to review, amend or scrap these laws in the future.
The White Paper on the Great Repeal Bill reveals that it will largely be a technical exercise, with further Bills to follow on substantial policy areas. Additionally, the process of correcting the statute book to rectify problems occurring as a consequence of leaving the EU will be done via secondary legislation. The Government estimates that this will require between 800 to 1,000 statutory instruments to complete this process.
The Great Repeal Bill will be included in the next Queen’s Speech and introduced in the next parliamentary session. The Bill’s progress through Parliament will run in parallel to the negotiation process under Article 50, and the Government plans for it 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, to allow for this legal continuity.
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 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.