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What happens after Brexit – and what is Article 50?

Today, the UK voted to leave the EU in an unprecedented historic event. Culminating not just from four months of vibrant politicking but from decades of lingering Euroscepticism. Eurosceptics have continually agitated for ‘leave’, right from 1973 when the UK became a member of the free movement bloc.

Tory leaders were among some of the most influential Eurosceptics; and David Cameron was keen on moving his party away from ‘banging on about Europe’. The prime minister did all he could to keep the Eurosceptic backbenchers happy; he withdrew from the centre-right federalist EPP group in the European parliament. He even renegotiated new terms for the UK’s relationship with the EU.

All that was not going to be enough for right winged politicians who were bent on seeing the UK ‘free from Brussel’s rule’. By late 2010, it became clear that the referendum on the cards was imminent.

Panic almost ensued moments after results came out and the British pounds sterling was almost the first to react by dropping. The airwaves was saturated with the news, telephones wouldn’t stop ringing as people were keen to know what will happen now. Our European clients needed to know what will happen to their applications, what will happen to their family, business and lives that they had built in the UK.

First of all we would like to make it clear that nothing will happen in the immediate. We have not all of a sudden woken up to a new geographical location called Great Britain. There will be transitional arrangement that will take at least 2 years to finalize.

It is important to understand that technically speaking, even though we know that prime minister will not ignore the will of the people, the referendum is not legally binding. The referendum results can be simply summarised by saying it is simply the British people saying that they want to leave. The Prime Minister will now need to invoke Article 50 of the Lisbon Treaty to commence series of formal actions, procedures and legal processes to ensure that the will of the people reigns supreme.

Article 50 – The mechanics of leaving the EU

Article 50 of the Treaty on the EU bothers on the processes for a member state to leave to EU. It obliges the member state to notify the EU of its withdrawal as well as try to negotiate a withdrawal agreement. This involves the disentanglement from the EU with all the structures of the EU and/or renegotiating terms for a new relationship from outside the bloc.

Article 50 involves the 5 points laid out below:

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.2. 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.3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

    A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

    5. If a State which has withdrawn from the Union asks to re-join, its request shall be subject to the procedure referred to in Article 49.

Note that the second point above mentions “That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union.” This suggests that there is no guarantee that the UK would find the terms of renegotiation acceptable. The EU Treaties would cease to apply to the UK on the entry into force of a withdrawal agreement or, if no new agreement is concluded, after two years, unless there is unanimous agreement to extend the negotiating period.

It is also important to note that during the negotiation period, EU laws would still apply to the UK. Structures within the country will continue interact with the EU as normal. However the UK will no longer participate in internal EU discussions on decisions bothering on its withdrawal and the withdrawal agreement.

The withdrawal agreement will be concluded on behalf of the Union, by the Council, acting by a qualified majority, after consent of the European Parliament. This suggest an extra layer of unpredictability in striking a deal, coming from the European Parliament. We think that this would further lengthen the negotiation process.

A scenario may arise where ‘final agreements’ infringe on certain areas of key service for other member states, it will be classed as ‘mixed agreement’, further ratification will then be pursued by every member state in the EU. The European Union’s Treaties would then need to be revised to reflect the exit of a member state, in this case, the United Kingdom.

What this means in essence, is that, he final deal at the end of a negotiated UK exit from the EU would need to be ratified by EU leaders via a qualified majority vote, a majority in the European Parliament and by the remaining 27 national parliaments across the EU.

Are there other ways to leave without Article 50?

The UK can withdraw from the EU by simply repealing the 1972 European Communities Act. While this may be theoretically possible, in practice, it would damage the UK’s chance of striking a better trade agreement with the EU after repealing the Act. In practice it would take away any chance of a transitional period, as all EU agreements with be automatically voided. EU laws which currently apply to the UK would have to be re-legislated in the UK to be replaced.

At what point would Article 50 be invoked?

The Prime Minister, at the House of Commons already confirmed that the UK would trigger Article 50 in the event of a leave vote. The question of when it will be triggered is entirely up to the government. It would naive to imagine that after a vote to leave panned out the way it did under the circumstances in which it did that the government would delay triggering Article 50.

David Cameron however, have suggested that he will let his successor activate Article 50. The Prime minister has mentioned that he remain in office ‘to steady the ship’ till October, when he will hand over to his successor. We can therefore expect that everything will remain as it is till at least a new Prime minister steps in.

Importantly, once an application has been made, it will have to be completed within two years. That period cannot be extended except if all 28 EU countries agree.

In the same vein, any other exit alternative would have to be agreed by the rest of the EU; and any agreement after the UK’s withdrawal from the EU will be responded to in line with Article 50, most notably requiring approval by EU leaders, MEPs and national parliaments.

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