After last week’s vote to leave the European Union, the British government faces a choice between a disadvantageous negotiating position on one hand and a politically unstable one on the other as it comes under pressure to activate the legal procedure for leaving the bloc.
After last week’s referendum, the next step in the legal procedure for Britain to leave the European Union is for the UK government to activate Article 50 of the European Union’s constitutional text, the Lisbon Treaty.
Doing so would trigger a two-year negotiation period for the two sides to agree on the conditions of the UK’s departure.
Top EU leaders are urging Britain to start the procedure as soon as possible, while the UK government and prominent Leave campaigners are saying they will not be rushed.
“The other member states are expecting the UK to trigger this Article 50 very soon, to avoid uncertainty,” says Michael Keating of Centre on Constitutional Change at the University of Aberdeen.
“But since we will have a new prime minister in the autumn, the government wants to wait. The other problem is that Leave side never expected to win this referendum, and now that they’ve won, they don’t know what to do.”
The UK at a disadvantage once Article 50 activated
The two-year negotiation would cover two principal areas: the withdrawal itself – including the rights of UK citizens living elsewhere in the EU and vice versa, EU citizens in the UK – and trade relations with the EU – including under what, if any, conditions the UK can still access the European single market.
In both areas, the UK would find itself at a disadvantage as soon as the Article 50 is declared.
“The rules state you only require a qualified majority of the other member states,” says Kenneth Armstrong, director of the Centre for European Legal Studies at the University of Cambridge. “That means no individual state then has a veto on the deal, and that therefore makes it potentially easier for a deal to be done on the EU side of things.
If there is no deal within the two-year period, the UK would either leave the EU with no deal whatsoever – and therefore its relations with the EU would be those of the World Trade Organization – or it would ask the EU for more time, which would require the individual approval of each of the remaining 27 member states.
“There is the possibility of the two-year period being extended, but that required the unanimous consent of the other member states “That veto power over extending the negotiating period is very important,” Armstrong explains. “The closer we get to that deadline, the weaker the UK’s bargaining power gets, and it could very much be left with a take-it or leave-it option at that point.”
But if this also explains why the UK government and the Leave campaigners are in no hurry to activate Article 50, it also underlines that they are under no obligation to do so.
“Article 50 is rather vague in this respect,” says Adam Lazowski, professor of EU Law at the University of Westminster. “The timing is up to the United Kingdom. Right now, it’s not a question of the law, but the politics of it.”
Tensions with Scotland and Northern Ireland
In the meantime, however, the government faces growing tension in Scotland and Northern Ireland, which both voted in favour of remaining in the EU.
Unless the calling of Article 50 fails to meet parliamentary approval in London, the devolved parliaments have no power to reject the withdrawal itself.
However, because the devolved parliaments are obliged to operate within EU law, they are in a position to disapprove of any moves to repeal EU law.
“If the powers of the devolved parliaments and assemblies have to be changed, their consent is required,” explains Michael Keating.
“That gives some leverage to the Scottish and Northern Ireland assemblies – especially in Scotland, where there’s very strong cross-party support for staying in the European Union. So they might not be able to veto this, but they could create a lot of difficulties along the way.”
This could be complicated further if either parliament, especially that of Scotland, follow through on calling referendums of their own.
“In that case, they would be involved in negotiations in a different way,” Keating says. “And that’s looking quite likely.”