European Union

Sionaidh Douglas-Scott, European law expert

The constitutional law expert takes Agnes Frimston through the obstacle course that lies ahead as Britain negotiates Article 50 and its exit from the European Union

There was a lot of talk during the referendum campaign about sovereignty. What does it mean?
In this country it makes sense to talk in terms of three different types of sovereignty: popular, parliamentary, and external. Popular sovereignty is when you have people voting and expressing their wishes directly. Britain – or at least England and Wales – has never rested its constitution on the concept of popular sovereignty. We have a representative democracy based on parliamentary sovereignty. As for external sovereignty, it simply means that every state is sovereign in its relations with other states in the world. At first sight, it looks like joining the EU compromises that because you’ve given up a bit of that sovereignty to Brussels or the European Court of Justice. But the whole point of international law is that countries choose to pool sovereignty because of the advantages of doing that.

Which version of sovereignty applied during the campaign?
In the context of the referendum, all three of these versions of sovereignty were confused. We don’t have a codified constitution that clearly explains what their roles are. So, in the absence of that, to say that suddenly popular sovereignty, as we see it expressed in a referendum, should take priority is I think a tenuous claim. Legally, what most people mean when they talk about sovereignty is parliamentary sovereignty, in which case Parliament should have a greater role in the whole withdrawal negotiation process.

Is it going to be possible to negotiate withdrawal at the same time as the future relationship?
There are differing views on this. We can look at the wording of Article 50 [of theTreaty on European Union], which is not very clear, where it talks about a withdrawal agreement ‘taking account of the framework for its future relationship with the Union’. One of the European commissioners has made it clear that she think these are separate processes. But to me it doesn’t make sense to conclude a withdrawal treaty if you don’t have an idea of what your future trading relationship is going to be.

The EEA has been mentioned as a possible solution. What does it cover?
The European Economic Area covers the four fundamental freedoms: goods, services, people and capital. What it doesn’t cover are the policies that are often seen as controversial: the common agricultural policy and the common fisheries policy; but also things that were added in Maastricht such as foreign policy, competence in criminal law, justice and home affairs, and economic and monetary union. It also doesn’t cover the customs union, so it’s certainly an ‘EU minus’. But that would be an advantage for a lot of Eurosceptics as it excludes things people have most disliked about the EU.

What about the rights of EU citizens in Britain?
If Britain were to be in the EEA there would be free movement of people, so that wouldn’t be too much of an issue except to the extent that it seems a lot of people voted Leave because of immigration. Politically that would be a problem. But supposing that we don’t have an EEA sort of relationship with the EU, then there is real concern about the acquired rights of EU citizens in the UK. There are moves in the House of Commons to try and get a greater assurance on EU citizens’ rights before Article 50 is even triggered. But would there be a sufficient majority in Parliament to legislate and protect the rights of all EU citizens who were lawfully present in the UK on June 23? Given the statements that have been coming out from the government, I am not sure there could be a majority for that. But I think that it would be very desirable if that could be achieved even prior to triggering Article 50. We’re going to haemorrhage EU citizens otherwise – they will simply leave.  

'Northern Ireland surely is one of the successes of recent times and to jeopardize it in this way seems to me to be extraordinarily negligent and irresponsible'

Can individuals acquire rights to residency?
The scope of acquired rights is relatively limited. Only certain types of rights will be recognized as acquired rights, and these tend to be regarding property and certain contractual rights. What doesn’t seem to be secure are rights of residency and movement, the rights that exist under the EU treaties, which people obviously thought were completely secure. Even if we do look to acquired rights in national and international law, they have to be litigated, and particularly in international law where the position isn’t clear and that’s going to take years. Something else will have to be done in regard to UK nationals resident in other EU countries because that would depend on those countries’ legal systems.

What will be the impact on the inflow of refugee claimants in the UK?
Strictly speaking, it shouldn’t change the position because Britain already has control over migration from non-EU countries. But currently, because we are members of the EU, the point of entry rule applies which says if an asylum seeker claims asylum in the EU, they should do so in the first EU country they enter. If Britain was no longer a member of the EU, that rule would no longer apply, and Britain would have to process the asylum seekers and refugees itself and it would not be able to return them to other EU countries.

What if we don’t get a deal within two years of triggering Article 50? Could we leave with no agreement?
We could. If you look at the wording of Article 50, the first thing you might do after two years is to try and get an extension, but you would need every other member state to agree to that, and in the worst scenario, they wouldn’t and you wouldn’t have an agreement but Britain would leave. The UK parliament will want to be kept informed about the process and negotiations under Article 50 because it will have to ratify any treaty. It would be ridiculous if Parliament were not included and then suddenly, at the last minute, won’t ratify a withdrawal agreement.

If Parliament decided not to ratify the treaty, could that mean that we wouldn’t leave?
I don’t think there’s a clear answer for that. It certainly means that the agreement could not take effect in UK law, and one view might be that, yes, we can’t leave. Because parliament hasn’t approved it, the government has to go back and do another deal. And then there’s the question of what the other member states feel about that. There’s no provision to eject a country from the EU. The nearest you get is a provision in the EU treaties that says when a member state has committed serious breaches of EU values, its membership can be suspended. But I don’t think that would apply at that stage. So the question would be: do you just keep the status quo? Does Britain’s EU membership just continue?

How long will this process take?
Far longer than two years. Article 50 does not make clear the extent to which the trade negotiations can be carried out at the same time as negotiating the withdrawal treaty. In any case, trade treaties take a very long time and we have virtually no personnel who are capable of negotiating these treaties. And it’s not only with the EU, it’s with all the third countries with which the EU negotiated on behalf of its members – we’re going to have to negotiate those ourselves. And we will have to disentangle EU law from national law which will only really start properly once a withdrawal agreement has concluded.

If we do get a deal, who has to agree it?
The important players would be the Council of Ministers, the European Commission, the European Parliament, the UK parliament and government. The European Parliament is the one to watch because they have to consent. What is required is a bare majority of a quorum – so one third of its members could form a quorum. It’s not impossible to get that result. Once that is attained then the Council can vote and that needs 20 out of 27 member states. It is important that it doesn’t have to be unanimous because one can imagine that there would be some member states that would always find something to quibble with. But then that agreement has to be ratified by the UK Parliament, and Parliament can refuse to ratify it. There might even be a requirement for a second referendum.

On the potential trade agreement, does every parliament in the European Union have to agree to all of them?
Not necessarily. When it comes to negotiating a trade agreement, the question would be whether it was something called a ‘mixed agreement’, which means it’s an agreement between the UK, the EU and all the member states, or whether it’s an agreement that just the EU itself could carry out. Either way there would have to be unanimity, so every state would have to agree. But if it’s a mixed agreement, it has to be ratified according to the constitutions of the member states, and some of those may require referendums. Not very many states may require it – perhaps four or five – but enough that could cause problems.

Do you think it would be possible for Scotland to remain in the UK and also remain in the EU, if the UK left the EU?
It’s a bit difficult to imagine but there are precedents. There is the ‘reverse Greenland’ situation – Greenland is part of Denmark and it left the EU in 1985 while Denmark remained. So there are legal precedents but it depends on political goodwill. At present, I imagine what Theresa May would be keen to do is to fend off any move towards independence in Scotland by appearing to offer the prospects of a soft Brexit, or a Brexit that involves Scotland’s interests.

What is going to be the impact on Northern Ireland?
It’s very worrying because the EU has been a beneficial force in the context of the Troubles. Northern Ireland has benefited from huge grants from the EU, much of which has gone towards the peace process, but also elsewhere to improve the economy. There is a majority of people in Northern Ireland who want to stay in the EU, and also there has been an indication from some of the nationalists that if they were not able to do so, they would move for a referendum to join the rest of Ireland. The Good Friday Agreement is premised on the UK and Ireland being members of the EU, so at the very least it will have to be renegotiated because Britain will be in violation of its terms. The Irish amended their constitution back in 1998 to be able to implement the Good Friday agreement, so they have taken major steps as well to see that this works, so this cannot be good for them. There’s also the problem of the border running between Northern Ireland and the Republic and what would happen if the UK leaves the EU and this becomes the UK’s ‘hard’ physical border. That sends out a very bad signal with connotations of that border’s militarization in the past. Northern Ireland surely is one of the successes of recent times and to jeopardize it in this way seems to me to be extraordinarily negligent and irresponsible.

Could London remain in the EU if the rest of the UK left?
Legally you can do all sorts of things under EU law, but you have to have the political will. West Berlin was a member of the EEC, although it wasn’t formally a part of West Germany and had a separate quadripartite administration. It very clearly had borders, so trade and the customs union were easier to police. In the case of London you wouldn’t have a border, so London being within the EU while the rest of England is not is difficult to foresee. I understand that for people in London who voted Remain, it’s frustrating to hear that Scotland might be able to make special arrangements because it has nation status, but a region like London that has such a powerful economy and such strong feelings about the EU should not be able to. We can look at Cyprus, where the whole island is a member of the EU, but EU law is only applied in the Greek part, and not the Turkish part. So there definitely are precedents one can draw on, but it has to be politically possible to agree on certain arrangements.

Can you envisage a situation where we don’t actually leave?
Anything is possible. Perhaps the most obvious way would be that the withdrawal negotiations become complicated and protracted and there’s a growing awareness that leaving the EU is not in the national interest, and that the terms of a putative withdrawal treaty would be  rejected at ratification stage by Parliament or even in a second referendum. It’s possible but whether it’s likely is another matter.