‘Academics Not Entirely Useless’ Shock

There are times when even I have to admit, through gritted teeth, that some people are so smart they know more than I do. Not only that but they write clearly and concisely and do it better than I do. (It’s only because they’ve been to university and done a thesis thingy and can sing gaudeamus igitur and stuff). So here, courtesy of the Constitutional Law Association, is Dr Alan Renwick of the Constitution Unit – who looks young enough still to be a student – with all you need to know if the wheels come off the sanity of the British people tomorrow and there’s an Out vote.

As the referendum on the UK’s membership of the EU draws closer, the result is impossible to predict. Many are asking what, in practical terms, would happen if we vote for Brexit. Alan Renwick explored some key elements of the withdrawal process before the referendum campaign began. Here, he gives a point-by-point overview of what the road to Brexit might look like.

The effect of the referendum

1. We will not immediately leave the EU if the result on 24 June shows a majority for Brexit. Indeed, in purely legal terms, the referendum result has no effect at all: the vote is advisory, so, in principle, the government could choose to ignore it. In political terms, however, ministers could not do that. We should presume that a vote to leave means that we will leave (see point 16) – though there is scope for various complications along the way.

2. The Prime Minister would very likely announce his resignation quickly, but would stay in post until his successor was chosen. There is much speculation that David Cameron would be out of Downing Street within days, and it is true that his position would probably become untenable. But the Cabinet Manual is clear (at paragraph 2.10) that he cannot go until he can advise the Queen on who should form the new government. Conservative party rules set out a two-stage leadership election process: first, the parliamentary party, through successive ballots, whittles the field down to two candidates; then the party membership, by postal ballot, chooses between these. Recent experience suggests this would take two to three months.

The mechanisms of withdrawal

3. Following a vote for Brexit, a period of negotiations about the UK’s future relationship with the EU would begin, as set out in Article 50 of the Lisbon Treaty. The Prime Minister triggers this by notifying the European Council (the collective body of the 28 member states’ prime ministers or presidents) that the UK intends to withdraw. That opens a two-year window for negotiating withdrawal terms – a period that can be extended, but only with the unanimous support of all the member states. We leave once a deal – which requires the support of the UK and a ‘qualified majority’ of the remaining 27 member states (specifically, 20 of them, comprising at least 65 per cent of their population) – is struck. If the two-year period comes to an end with neither a deal nor an extension, we leave automatically on terms we may not like (see point 4).

4. Article 50 skews the balance of power in the negotiations in favour of the continuing member states. That is because of the two-year rule and the unanimity requirement for extensions to that period. If we find ourselves outside the EU with no deal, we automatically revert to World Trade Organization (WTO) rules on trade. That means that tariffs have to be imposed on trade between the UK and the EU. This would be bad for everyone, but especially for the UK. Strenuous – and probably successful – efforts would be made to avoid it. But, as we explore in our briefing paper on the impact of Brexit on other member states, some countries would strike a very hard bargain. We can presume that the UK would not get its way on everything.

5. There is no requirement for the Prime Minister to trigger Article 50 immediately after a vote for Brexit. It would be sensible for the UK to work out its negotiating position and construct its negotiating team before setting the clock running. The government might also hope to hold preliminary discussions with other member states – though how far they would be willing to engage at this stage is unclear. At the same time, given the damaging effects of uncertainty, there would be strong reasons for avoiding too long a delay.

6. It is vanishingly unlikely that the UK could withdraw without triggering Article 50 at all. Vote Leave suggests that it might be possible to leave via Article 48, which sets out the procedure for revising EU treaties. But a simple majority of member states could block even a request to consider such a route, and the amendments themselves would require ratification by every member state. Given that the Article 50 process skews the balance of power towards the continuing member states, we can presume they would insist on its use.

7. Both sides in the referendum campaign agree that this whole process would take several years, during which the UK would remain in the EU. The Remain side has always argued that the negotiations would be lengthy; the Leave side has now indicated that it would like to complete the process by 2020. Until the negotiation process is complete, the UK remains fully subject to its obligations under EU law. Thus, while Vote Leave says it would introduce measures early in the withdrawal process to limit the writ of the European Court of Justice, doing so could violate the law. Professor Kenneth Armstrong has analysed the flaws in this plan in depth.

The content of the negotiations

8. The process of withdrawal would involve three sets of negotiations:

First would be the negotiation of the withdrawal terms themselves. These would likely include, for example, an agreement on the rights of UK citizens already resident in other member states and of EU citizens resident in the UK. As Professor Sionaidh Douglas-Scott has explained, those rights – contrary to what some have said – are for the most part not protected under existing international law.
Second, it would be necessary to negotiate a trade deal with the EU. The official Vote Leave campaign has confirmed that it wants such a deal and correctly points out that everyone’s interests would be served by having one. The content of the deal would, however, be hotly contested. Vote Leave focuses on securing free trade in goods and argues that, because the UK imports more goods from the EU than it exports to the EU, we could expect to be offered a good deal. But there would be greater difficulties in services. Open Europe (which campaigns for EU reform and is neutral in the referendum) highlights particular difficulties in financial services, where it rates the chances of maintaining current levels of access to the EU as ‘low’.
Third, the UK would have to negotiate the terms of its membership of the WTO and would want also to negotiate trade deals with the over 50 countries that currently have such deals with the EU, as the existing arrangements will no longer apply to the UK from the moment of Brexit. The WTO itself has warned that this would not be straightforward: the UK would not be allowed just to ‘cut and paste’ the terms of WTO membership that it currently has through its EU membership. Similarly, while we might hope that other countries would agree quickly to extend the EU rules to the UK, we cannot presume that all would – and the UK itself might want different terms in some cases.
These negotiations could run in parallel, or the UK could negotiate withdrawal first and future arrangements later. As Professor Adam Lazowski has pointed out, there are difficulties in both approaches.

Could parliament influence the process?

9. Parliament has no formal say over whether or when Article 50 is invoked, as this lies within the royal prerogative powers that are exercised by government. Government’s powers in matters of foreign policy are very extensive, and parliament has veto rights only in respect of treaties. If parliament were to pass a motion calling on the Prime Minister not to invoke Article 50, we might nevertheless expect him (or perhaps, by then, her) to respect that. But the Prime Minister could claim the authority of the popular vote to justify ignoring such pressure.

10. Parliament would, however, be able to vote on the withdrawal deal, as that would be a treaty. Indeed, as we examined in our briefing paper on Brexit’s effects on Westminster and Whitehall, parliament would expect to be updated regularly on the negotiations and to have its views heard, perhaps through votes on specific issues. The large majority of MPs currently favour staying in the EU. If they wanted a post-Brexit deal involving substantial ongoing integration with the EU – perhaps akin to Norway’s arrangements ­– they could potentially have the power to reject any deal that did not provide that. Whether they would do so would depend in part on the political situation and the state of public opinion at the time, both of which are highly unpredictable. It would depend also on the withdrawal timetable: if the two-year window were near to closing, rejecting the deal on the table could be very risky.

11. Beyond the negotiations, parliament would also have a great deal of legislating to do. Withdrawal would require repeal of the European Communities Act (ECA) of 1972 – the legislation that underpins the UK’s EU membership. But there would also be two much larger tasks. First, a great deal of legislation has been passed over the last forty years that enacts provisions required under EU membership. Parliament would presumably wish to review – and in places amend or repeal – this body of law during or following withdrawal. Second, EU ‘regulations’ apply directly in the UK without domestic implementing legislation and would automatically cease to apply upon repeal of the ECA. But it would be essential to retain some of these, at least in the short term: otherwise, we would lack rules on many important matters. Agata Gostyńska-Jakubowska points out, for example, that much of the trading done in the City of London would overnight become illegal unless new provision were made. The process of reviewing this legislation – working out what to keep, what to amend, and what to remove – would be lengthy, complex, and contested. It has been discussed further on this site by former Clerk of the House of Commons Lord Lisvane.

Could Whitehall cope?

12. Whitehall, meanwhile, would be severely stretched by the mammoth exercise of withdrawal. The civil service has zero spare capacity after the cuts of the last five years: many departments have seen budget cuts of over a quarter since 2010, and total civil service employment has fallen by almost a fifth in the same period. Further spending reductions for the coming years were set out in last year’s spending review. The UK has no current capacity at all in trade negotiations, as this is a job that has been outsourced to Brussels. The task of reviewing 40 years of EU and domestic legislation could take five or ten years. It would make it very difficult for the government to embark on any new policy while it reviews all these old policies. Whitehall also risks becoming very clumsy in handling important relationships (such as with Scotland: see below) because it would be so severely distracted.

What about Scotland and Northern Ireland?

13. Scotland’s position within the UK would probably become even more contested. The polls suggest that, if the UK votes for Brexit, that will reflect the result in England and (probably) Wales: the Remain side is well ahead in Scotland and Northern Ireland. This would inflame nationalist sentiment in Scotland. There is widespread speculation that it would lead to a second independence referendum. That is indeed possible. As we explore in our briefing paper on Brexit’s effects on devolution and the Union, however, Nicola Sturgeon would not move quickly: she has said that she will call a second referendum only if polls consistently show substantial majority support for independence. Brexit would in some ways make independence harder: not least, the combination of the two would create an EU border between Scotland and England. The outcome could therefore be that Scotland becomes less satisfied with the UK but more locked into it.

14. This sense of grievance could be further aroused by the process of withdrawal itself. The Scottish Parliament, Welsh Assembly, and Northern Ireland Assembly are all legally required to operate within EU law. In order to withdraw from the EU cleanly, these requirements would have to be repealed (see here for the difficulties that would ensue if they were not). By convention, this would require the consent of the devolved legislatures, which they might well refuse to grant. Sionaidh Douglas-Scott argues that Westminster could precipitate a constitutional crisis if it chose to override such refusal. Some others doubt that. Nevertheless, it would add to the sense in Scotland that London is breaking the promises it has made to the Scottish people.

15. There are concerns in Northern Ireland that Brexit would undermine the peace process. As our briefing paper on Brexit and devolution also explores, the EU has long been involved in the peace process and gives substantial funding to peace initiatives. Furthermore, experts in both the North and the Republic question whether the existing Common Travel Area between the UK and Ireland could be maintained following Brexit, which would require imposition of a ‘hard border’. The great achievement of the last 20 years has been to remove the border as an issue in Northern Irish politics; its reintroduction would fuel insecurities and threaten the stability and cohesion of the power sharing arrangements.

Could there by a second referendum?

16. There is no easy route to a second referendum. There has been much speculation around the question of whether a second referendum to finalise our future relationship with the EU could be held. As I explored in detail in my earlier post, various kinds of second referendum can be imagined, but all face considerable difficulties. One idea, floated last year by Boris Johnson and revived yesterday by the Sunday Times, is that we might take a referendum vote to leave as an opportunity to negotiate not Brexit, but rather radically revised terms of ongoing membership. In the wake of a public vote specifically for Brexit (unless perhaps the margin is very tight), however, it would be politically very difficult for any Prime Minister to pursue such a path. Another idea is a vote on the terms of the Brexit deal once they have been negotiated. The alternative to accepting the deal might either be that we stay in the EU after all or that we go back and try to negotiate something better. The trouble with both options is that they are legally perilous: Article 50 provides no mechanism for withdrawing a notification of intent to leave the EU, and the two-year limit means that, if we rejected a deal, we could find ourselves on the outside by default. In practice, some way round these difficulties might well be found – but the UK might have to make significant concessions to get there. So, while scenarios leading to a second referendum are conceivable – such as if government and parliament are at loggerheads over the terms of the deal – we should presume that leave means leave.

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25 thoughts on “‘Academics Not Entirely Useless’ Shock

  1. Anne J Butler

    I think David Cameron should have taken some time to read this before he called the Referendum. It might have given hi some time for second thoughts before bouncing us into this completely useless event .

    • Indeed. Bearing in mind that there was no call for a referendum from the general public, as it was called to appease disaffected Tories to ward off a rebellion in their own ranks, due to UKIP splitting the Tory vote, and a likely victory for labour in 2015.
      The genie is well and truely out of the bottle.

      • If there was no call for a referendum , why is it that 50% of the popn want out of the EU then ?

        46 million people are entitled to vote tomorrow .

        of them 11 million voted Tory at the 2015 GE , and 4 million UKIP .

        David Cameron put the referendum into the Tory manifesto, to fragment the UKIP vote .
        (otherwise there may never have been a Tory Majority , and off course no referendum )

        He was honoured bound to act on his manifesto.

  2. Point no. 13 is pretty much on the money, though I’d contest the conclusion, especially since that conclusion is a bit vague on detail. But yeah, the end result for UK politics looks pretty bad on the whole in such an instance. In fact its looking pretty ropey regardless IMO. I’m guessing it won’t be a landslide either way tomorrow, which should make Cabinet meetings fun then.

  3. Thank you Derek for posting this. This truly clarifies the situation with which we may be faced. As Anne Butler above states David Cameron should have read this before he bounced us into this mess.

    • I don’t know why people have a problem with the referendum being called. It was 40 plus years since the last one, the EU had changed drastically since then, and the young people would have to live with the choice as the years go past. I thought it was a good thing. Too much democracy is never bad.

      • You have a point but the problem is a media that is very hostile to the EU (and whose owners have an ulterior, personal motive) and the complex nuances of the benefits of EU membership, most of which aren’t obvious or visible.

        And if you want to know what the young folk think, just look at the polls – under the age of around 50 there is a clear majority for remaining, but as happened in the Scottish independence referendum, it was and will be the over 50’s that decide the future of the country. So those young folk that you want to hear from and who appear to want to remain in the EU will be pulled out of it by the older folk who, let’s face it, have a shorter future under the consequences of their decision than those young folk.

        • I agree with most of what you’re saying, but the Pro-EU crowd have to take some of the blame for not making the EU case over the years.

          A media hostile to the EU doesn’t help, but the indy camp in Scotland have shown you can work around a hostile media by creating an alternative media.

        • The media and the establishment is pro very pro EU ,don’t imagine it as a hotbed of socialism it is all built for big business .

        • Deja vu tae you

  4. This was just Cameron kidding himself on what a great statesman he is as he tried to bully and browbeat the EU to give into his demands, but greater politicians than him refused to be browbeaten, so after spending our money jetting round Europe looking for support what did he achieve, nothing at all accept to split his own party and hopefully bring them down. The only question is who or what will replace them. And hopefully set Scotland free from poisoned west Minster.

    • Before the negotiations, Cameron declared his support for the EU, and he said he wanted them wrapped up by the Monday (he arrived on Thursday) so he wasn’t exactly playing hardball. It was more Cameron shooting himself in the foot, rather than EU leaders refusing to be brow-beaten. Cameron asked for nothing, he got half of that.

  5. An excellent article, Derek. I usually post a lengthy reply to these types of posts, but I’ll keep it short: a lot of these points will see Realpolitik kick in between Britain and the EU, if there’s a BREXIT.

  6. I refuse to rise to this bait man. Retired academic

  7. Aye it is a shock!

  8. Why doesn’t Cameron just appoint the Brexiteers to head the negotiations. He would of course head a caretaker government in the meantime.

    The terms gained by the negotiators would made public and put before parliament for acceptance….

  9. He sums up my feelings exactly when he says that the likely outcome of a Brexit on Scotland given that it is estimated that Scotland would vote to Remain, is that Scotland would become more dissatisfied with the EU but more locked into it. (13).

  10. In an article in today’s Guardian (22/06/2016) entitled “David Cameron isn’t the only leader facing conflicting pressures about Brexit”; http://www.theguardian.com/politics/2016/jun/21/brexit-eu-referendum-david-cameron-scotland-wales-northern-ireland?utm_source=esp&utm_medium=Email&utm_campaign=GU+Today+main+NEW+H+categories&utm_term=178550&subid=8433573&CMP=EMCNEWEML6619I2 This was basically a hatchet job against Nicola Sturgeon by a London based reporter, Michael White; who is described as a “former political editor and Washington correspondent of the Guardian”.
    Anyway it generated 576 comments and counting, there is the usual mix of half thought out comments and I thought I would add my penny worth by making the following 2 comments and was most pleasantly surprised that they accepted my second one.
    IainExileScot
    21:16 22/06/2016
    To really understand the motives for the setting up of a modern Pan-European organisation such as the present EU you have to go back to 1923 and Richard Von Coudenhove-Kalergi; the basic details of which can be found on Wikipedia https://en.wikipedia.org/wiki/Richard_von_Coudenhove-Kalergi . As you will read, it was never the intention that this would be a benevolent organisation for the benefit of ordinary people and this was enthusiastically supported by Churchill both in the 1920’s and later in the 1940’s & 1950’s as a way of preserving Britain’s global ambitions. This also ties in with the thinking of the UK ruling classes in the 1930’s and was supported by all the main political parties; both before, during and after World War 2 and in fact up until the present day. So the EU and it’s predecessors was never at any stage considered as just some common trading agreement by the political and ruling classes of Europe (including of course the UK) this was just for public consumption; despite protestations that may say otherwise. This does not mean that I think that the present EU organisation is somehow evil in some way; but to make a judgement on what the future holds for the UK either in or out of the EU, it is best to be aware that even if the UK leaves the EU the basic concepts held by our senior politicians will remain unchanged. Remember when George Orwell wrote the novel 1984, he was not writing about something far in the future, as many people seem to think; he was writing about what he understood to be happening in 1948. Finally to give a good understanding of the present EU plans and proposals it is well worth visiting the public websites of the EU; I can recommend the EU ISS (Institute of Security Studies) http://www.iss.europa.eu/home/ which has thousands of articles, programmes and contains details about future EU thinking, all available for the general public to read. For those who worry about personal privacy; it is probably not a good idea to read about a project called INDECT http://www.indect-project.eu/ which is already completed and is currently being rolled out throughout the EU, with the full agreement of the UK government.
    IainExileScot

    22:24 22/06/2016
    This link give a short synopsis of the present situation in the UK. https://www.youtube.com/watch?v=Y7QFXFTQZhw

  11. Point 14 is the cruncher. It means effectively if the UK Government refuses a request for the reserved power Referendum (Indy Ref 2), then the Scottish Government refuses to dismantle EU legislation, and UK Gov either moves to totally remove the Scottish Parliament which would be fun, or has to accede to the request, and another S30 Order. In other words ScotGov has UKGov by the short and curlies.

  12. And on this morning its safe to say, the last of Better Together’s argument has catastrophically fallen apart.

    Who knew?

  13. douglas clark

    Macart,

    Inoculation.

    I suspect that, having already gone through the nonsense of lies and propaganda, the Scottish electorate was able to yawn and get on with the job rather than lie back with a tea bag on their foreheads. For the Scottish referendum, that none of the rest of the UK electorate was subject to, had an interesting effect. It meant that we were aware of the games and deceit that politicians were capable of. Whilst our Derek is a tad quieter that a certain gentleman from Bath, they have been the folk that vaccinated us from our ‘betters’.

    I genuinely yawned when a Labour ‘has been’ politician told us what we could and couldn’t do. Tom, something or another, maybe….

    These folk are inveterate, They know they are playing with truth and consequences and expect us to be unable to decipher that. Perhaps before the independence referendum we were all too willing to believe folk in positions of power and influence. Nowadays, not so much, eh!

    The power of the internet and evidence based information, not something that spouts out of a gob.

    If we have learnt anything from the last few years it is to trust each other, not them….

  14. I forgive you your declared humility as a scribe , Derek,
    Feedback? You are an extraordinary weaver of words. Hands up, all who agree.
    A thought provoking piece.

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