Foreign Relations & International Law

What’s in a Brexit?: What Happens After the U.K. Invokes Article 50

Shannon Togawa Mercer
Tuesday, September 6, 2016, 11:48 AM

Brexit Means Brexit,” said British Prime Minister Theresa May in a famously ambiguous phrase from the speech launching her bid for Conservative leadership in June.

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Brexit Means Brexit,” said British Prime Minister Theresa May in a famously ambiguous phrase from the speech launching her bid for Conservative leadership in June. Her words resonated last week through the ministries in Whitehall as she pressured her government to make the actual Brexit part of Brexit a top priority.

In my first Brexecution article, I posed the question of what really constitutes an invocation of Article 50—the provision of the Treaty on the European Union (TEU) which lays out the notification requirement before a European Union member can blow the proverbial continental popsicle stand. May has now at least tentatively answered that question: This past week, she announced that she will invoke Article 50 without a Parliamentary vote on the subject—though precisely when remains up in the air and subject to possible delays.


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That shifts the question on everyone's minds from when and how the process will begin to a variation on the playwright's timeless inquiry: What’s in a Brexit? That is, what exactly happens when Article 50 gets invoked? We all know that there are supposed to be two years of negotiation, but what can we say about the mechanisms and subjects of those negotiations? What has to be done, and who gets to do it?

First, an update on the Brexit news: Last week, May instructed her Cabinet to deliver action plans for Brexecution at a meeting at her country retreat in Chequers. By all accounts, the Chequers meeting, which took place August 31, was a forcing mechanism for her cabinet to identify negotiation points for the U.K. The government has been unsurprisingly tight lipped about the results of the Chequers retreat in the days that have followed, but a few tidbits have made their way to the press: During the meeting, May is quoted as having confirmed that there will be “no second referendum; no attempts to sort of stay in the EU by the back door; that [the government is] actually going to deliver on this.” At least one account claims that May used the meeting to resolve disputes among her ministers, specifically Foreign Secretary Boris Johnson, Secretary of State for International Trade Liam Fox, Secretary of State for Exiting the European Union David Davis. May’s spokeswoman reported on one point of agreement at Chequers: the U.K. should “seek a ‘unique’ arrangement with the EU that would allow ‘controls on the numbers of people who come to Britain from Europe but also a positive outcome for those who wish to trade goods and services.’”

At a high level of generality, there appear to be two major public takeaways from the meeting: first, that controlling immigration is a priority (the first Brexit “red line” or non-negotiable issue according to May) and second, that the deal with the EU will likely be bespoke, and not modeled on precedent.

Beyond that, the Chequers Brexecution plan remains something of a phantom, and it may remain that way for a bit longer. Davis, the Brexit minister, made a public statement on Monday, September 5, in the House of Commons, ostensibly to update Parliament on the Government’s progress. But his statement was so devoid of substantive developments that the Guardian has dubbed it his “first lack-of-progress report.” This speech, with only some mention of potential negotiation points regarding the single market and immigration, leaves us with nothing more than a limited sense of what comes next on the British side.

Here’s what we know at this stage absent a clear sense of the U.K. government’s plans:

On the U.K. side, everyone assumes that the Prime Minister, Davis, Johnson and Fox, will all play active roles in the negotiation process. In addition, Davis’ newly created department already boasts a team of 300 people. May has also alluded to the deep involvement that the Scottish Government, and its first minister, Nicola Sturgeon, will have in determining the U.K.’s negotiating position.

The picture of the European side is somewhat murkier, but the law itself gives some sense of what will happen. Once the U.K. invokes Article 50, the European Council will determine the negotiating mandate or, “guidelines” for the European side. (Interesting question whether some of this will happen before an Article 50 invocation if the invocation is delayed and many issues are pre-negotiated, a possibility I discussed in my first piece.)

I know what you’re thinking: I’ve heard of the European Commission, but what the heck is the European Council?

Funny you should ask. The European Council is a body comprising the EU member heads of state. It sets the EU policy agenda, but it does not put forward legislation. The European Commission, by contrast, functions as the executive body of the EU. The Commission proposes legislation and implements decisions. It is composed of 28 members, one per member state, members who do not directly represent their states of origin.

The council will determine the mandate by consensus of member states excluding the U.K. which means, sadly for the British, that the U.K. does not get a say in determining the other side’s negotiating positions in addition to its own. After these initial guidelines are adopted by the council, the European Commission will submit suggestions for the appointed negotiating team and the council will adopt a decision authorizing the opening of negotiations while simultaneously nominating the EU negotiator or the head of the EU negotiating team. Article 218 of the Treaty on the Functioning of the European Union (TFEU) governs the negotiation process and gives the Council this authority. Though the Commission is likely to run negotiations, Article 218 does not specify who the negotiator must be; 218(4) of the TFEU allows the Council to name an additional special committee that must be consulted throughout negotiations, so the Council can bring to bear a panoply of experts and politicians should it see fit. Interestingly, the law does not definitively say that the U.K. member of the Commission will be excluded from Commission-wide discussions about the negotiations themselves. The European Parliament will likely try to involve itself in negotiations as well, and at the very least, will have to consent to the agreements with a simple majority. The process of appointing a negotiating team is more or less as follows: the executive nominates a negotiator. The heads of state confirm the nomination and the governing process. The legislature has final approval rights and tries to get a word in edgewise in during the process.

Simple, right?

And we haven’t even gotten to negotiations yet.

The U.K. and EU negotiation teams—once Article 50 is invoked and these processes, arcane on the EU side and unknown on the U.K. side, take place—will convene to negotiate two giant buckets of issues: the terms of the U.K.’s withdrawal and the new relationship between the EU and the U.K. The House of Lords European Union Committee predicts that these broad issues will be negotiated simultaneously in order to coordinate interests. Some commentators believe that negotiations will result in separate agreements, the withdrawal agreement being the more technical of the two.

Consider the withdrawal agreement as approximating the terms of a divorce, just between two large and powerful international legal personalities instead of two angry spouses. In fact, Donald Tusk, European Council President, has tweeted hopes for a peaceful separation, “something like a ‘velvet divorce’”—alluding to the Czech Velvet Revolution of the 1980s. While the Treaty on the European Union (TEU) does not specify the scope of the withdrawal agreement, this agreement will address the currently existing elements of EU-U.K. cooperation that will be impacted by the separation: the rights of EU citizens currently in the U.K. and vice versa; the relocation of EU agencies currently in the U.K.; the role of EU agencies under U.K. domestic law; the status of EU funds en route to U.K. recipients; and contingencies, such as outstanding fines. The European Parliament Research Service (EPRS) wrote that the withdrawal agreement may be “merely declaratory,” because the withdrawal will take place even without an agreement, but the House of Commons Library research briefing on the withdrawal assumes that the agreement will encompass the arrangements necessary for the withdrawal, and will thus be more expansive than just declaring the fact of withdrawal.

Unlike many other international treaties, EU treaties don’t include survival clauses, which provide terms of the protection of the rights acquired by citizens and businesses or EU law claims. The EU withdrawal agreement with Greenland—which left the European Economic Community in 1985 while remaining a part of Denmark, a member state—included a transition period during which EU citizens and businesses would retain their rights. Despite this gap in the EU treaties, the future status of EU citizens currently in the U.K., and U.K. citizens currently in the EU, may not end up being an especially controversial negotiation point. May has said that she expects the status of British citizens in EU countries to be guaranteed and, in exchange, will “guarantee the status of EU citizens living [in the U.K.].” It’s not entirely clear what this means, but it certainly sounds like nobody’s going to demand that large numbers of people up and go home to Poland.

The second category of negotiations, which may result in one consolidated agreement or a series of discrete agreements, is the U.K.’s future relationship with the EU. The procedure for the negotiation of the future agreement or agreements may or may not have to follow the Article 50 procedure that definitely controls the separation agreement. The language of the provision is unclear, and the question is not settled. The issues which will be discussed in this set of negotiations overlap significantly with the issues that fueled the Leave campaign. It is inevitable that the U.K. will be seeking some departure from the four fundamental freedoms model of the EU: the freedom of movement of goods, services, capital and people. The question is how much departure and from which of those those four freedoms.

Based on both May’s comments at Chequers and the larger tone of the British debate, it’s fair to predict that the U.K. will fight for three of the four freedoms—those that involve goods, services, and capital—while insisting on some degree of independence with respect to regulating the movement of people. The extent to which the EU will allow for a departure from its model is still unknown, but allowing the U.K. to pick and chose freedoms has the potential to undermine the European project.

The U.K. and the EU will have to agree on the terms of their relationship along each of these axes, necessitating the reevaluation of a number of existing agreements or understandings among EU member states and between the EU and third-party states.

In my next post, I will take a close look at several of the substantive issues that the parties will have to resolve as part of the future relationship agreements. In particular, I’ll examine the dynamics of the coming negotiations for trade, migration, national security, and law enforcement.

Shannon Togawa Mercer is a senior associate at WilmerHale. Her practice focuses on complex global data protection, privacy, and cybersecurity matters. Ms. Togawa Mercer has extensive experience counseling clients on cross border data protection and privacy compliance as well as cyber incident response. She has practiced in London and Washington D.C. and previously served as Managing Editor and Senior Editor at Lawfare. Ms. Togawa Mercer also served as National Security and Law associate at the Hoover Institution.

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