BrEXIT AND BreUK-UP

Aidan O’Neill

Looking back on the result of the Brexit vote, future historians may well conclude that the post-WW II United Kingdom of Great Britain and Northern Ireland was, like Belgium, held together by the European Union.

Flanders and Wallonia dare not split into independent countries (despite decades of mutual antipathy and non-co-operation) because neither wishes to lose Brussels as its capital.   But London does not hold the UK together. The Brexit vote revealed the vast gulf in social attitudes and political aspirations between London and the rest of England. The encircling M25 haloes and isolates London, just as the medieval palisade separated pre-Tudor Dublin from “Irish” Ireland.   L’Angleterre profonde now lies beyond the Pale, and London as an international city state in waiting is profoundly out of sympathy and out of step with it.

Meanwhile, north of Hadrian’s Wall, a different politics flourishes in which London, and the rest of England, appear increasingly irrelevant.   The SNP now run a minority administration from Edinburgh, largely as a result of the remarkable resurrection of the Tory vote under the leadership of Ruth Davidson MSP and the continued collapse of the Labour vote under the leadership of Kezia Dugdale MSP. But the Scottish Tories keep their distance from their sister party to the south and contemplate, as part of their on-going de-toxification, dropping the label “Conservative” and returning to their pre-1965 designation as the Scottish Unionists.   And Scottish Labour sinks into yet deeper irrelevance, while flirting with talk of a post-Brexit complete federalisation of the UK.

In his speech on 14 September 2014 following the result of the Scottish independence referendum (in which one of the claims made by those advocating the status quo was that only by voting to stay in the UK could Scotland ensure that it remained within the EU) the then UK Prime Minister David Cameron proclaimed that he was “a passionate believer in our United Kingdom” and that he “wanted more than anything that our Union stay together”.   And in her 13 July 2016 acceptance speech on succeeding him as UK Prime Minister Theresa May noted that

“The full title of my party is the Conservative and Unionist Party. And that word unionist is very important to me. It means we believe in the union, the precious, precious bond between England, Scotland, Wales and Northern Ireland.”

But just what makes this bond so doubly “precious” and why it should be the object of “passionate belief” has not been further developed.   It is not clear that this is, in any event, a sentiment that is shared in l’Angleterre profonde by whose votes the Conservative party won its unexpected majority in the House of Commons in May 2015.   The Conservative successful general election campaign was marked by dog-whistle anti-Caledonian insinuations that a vote for the Labour Party meant a vote for the SNP in coalition with it, putting “sad Ed” Miliband into the pockets of “smart Alec” Salmond and “tricky Nicky” Sturgeon.

As the distinct polities which make up the still nominally United Kingdom grow ever further apart, the only solution which appears to be offered is the delegation – but never the complete transfer – of more powers to the English regions and to the non-English nations.  This might be termed disintegrative devolution.

But the shibboleth of sovereignty means that power is never unequivocally divested from Westminster.   Powers devolved are powers retained.   Thus when it comes to the (Brexit) crunch from a Westminster perspective, while the devolved legislatures and executives may properly expect to be consulted on and advised of negotiations, they cannot expect to participate in them.   And they are certainly not regarded as having any power to prevent either the UK as a whole, or any of its constituent parts, from leaving the EU, notwithstanding that in the Brexit referendum (in which UK resident Commonwealth and Irish citizens, but not other EU citizens, had a vote) Scotland voted 62% in favour of remaining in the EU against 38% for leaving it, while the vote in Northern Ireland was 56% for remain and 42% for leave.

Unlike Westminster, the devolved legislatures are elected on the basis of a franchise which gives the vote to citizens of other EU member states lawfully resident in their territories.   The devolved executives may therefore properly claim to have obtained a democratic mandate from, and be democratically accountable, to these EU citizens; and may plausibly claim to have the constitutional duty to represent and give voice to those individuals’ concerns and claims.   But the fact that EU citizens currently lawfully resident in the UK are mentioned both by the Prime Minister and by her newly appointed Secretary of State for Exiting the European Union, David Davis MP, only in the context of their possible use as human shields or bargaining counters in the Brexit negotiations rather indicates that the little Englander politics of the “nasty party” have not been wholly abandoned under this new UK premiership. Continue reading

10 (pro-EU) reasons to be cheerful after Brexit

Cormac Mac Amhlaigh

As the dust continues to swirl around the momentous Brexit referendum result a month ago (and doesn’t show any signs of settling anytime soon) I suspect many EU sympathisers will be somewhere in the middle of the various stages of the Kübler-Ross Grief cycle: denial, anger, bargaining, depression, acceptance. So, somewhat incongruosly, are the ‘leavers’. Whereas there are almost as many emotions being experienced on all sides as there are potential options on what will happen next both in terms of the UK’s future relationship with the EU as well as the future of the EU itself, in this post I want to set out a number of (pro-EU) reasons – some obvious, some optimistic, others wildly speculative – to be cheerful amidst the uncertainty created by the Brexit vote.

  1. It is worth reminding ourselves that (a version of) the EU existed before the UK joined in 1972 (with Denmark and Ireland) and it will survive its withdrawal. Brexit will not have the same effect as one of the founding six, and particularly say Germany or France, leaving the bloc.
  1. The feared domino effect of other Member States agitating to leave has not transpired. Indeed post-Brexit opinion polls have shown a bounce in support for the EU in other EU Member states since Brexit.
  1. Even were an in/out referendum to be held in another EU Member state, there are good reasons to believe (barring unforeseeable ‘exogenous shocks’) that a majority would not vote to leave. No other EU Member State has a national media so relentlessly hostile to the EU as the UK. The UK’s top-two selling national newspapers (with a combined circulation as much as the next three put together) are rabidly anti-EU and a study released during the referendum campaign found that even the UK’s supposedly ‘neutral’ state broadcaster, the BBC, had been overwhelmingly negative about the EU over the past fifteen years. Against this heavily Eurosceptic background, there was still only 3% difference between leave and remain in the referendum result. This augurs well for an EU referendum in an EU Member state with a less hostile media.
  1. The referendum and its aftermath has increased curiosity, interest and knowledge about the EU and what it does among many previously disinterested EU citizens. Most obviously in the UK where google reported a sharp rise in searches asking was ‘What is the EU?’, albeit that this was after the polls had closed. Admittedly, much of this knowledge and information is starting from a pretty low base but any improvement has to be a good thing for the EU.
  1. Ever since the last British government passed the EU Act 2011, which requires referendums in the UK on certain future reforms at EU level, future EU reform would have been considerably hamstrung by the UK through the floating of a ‘referendum veto’ at every turn in negotiations.   An actual referendum on future EU reform, even reform which would have been disproportionality advantageous to the UK, would have been very unlikely to succeed given the general eurosceptic feeling in the UK as exemplified in the Brexit referendum result. Future negotiations would therefore have involved even more protracted wrangling over EU reform than is usually the case, with increasingly less patience with the UK among other EU Member States. In the Brexit result, future EU reform has dodged a considerably large UK-shaped bullet allowing for better reform at the EU level at a time when it needs to be efficient and decisive in the face of the many issues it currently faces.
  1. The Brexit vote has put EU legitimacy back on the agenda (again!). It provides a useful time to reflect on the broader legitimacy of the EU, particularly from the viewpoint of citizen knowledge about, and engagement with, the EU. Vital lessons can be learned from the way in which the EU was presented as well as misrepresented in the Brexit campaign debates and the extent to which EU questions tend to be dominated by domestic political concerns. This should feed into analysis and reflection on the never-ending project that is the enhancement of the EU’s legitimacy. Furthermore, unlike the high-stakes, pressure-cooker atmosphere of the eurocrisis, the Brexit vote has been followed by an important ‘cooling down’ period (helped considerably by Cameron’s decision not to push the Art. 50 button on his resignation) which allows for more probing and searching analysis into these big questions and better solutions to be developed.

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The CJEU’s Headscarves cases: analysis of the contrasting AG opinions

Darryl HutcheonDarryl Hutcheon

Conflicts between the religious practices of workers and the ‘neutrality’ policies of their employers have repeatedly come before the European Court of Human Rights (“ECtHR”) and domestic courts in the UK. They now arise for the first time before the Court of Justice of the European Union (“CJEU”) in two cases: C-188/15 Bougnaoui v Micropole SA and C-157/15 Achbita v G4S Secure Solutions NV80. This note analyses the opinion of Advocate General Sharpston in Bougnaoui handed down on 13 July 2016; contrasts that opinion with the earlier opinion[1] of AG Kokott in Achbita; and considers what these decisions tell us about the future trajectory of EU (and domestic) discrimination law.

Facts in both cases

Ms Bougnaoui and Ms Achbita are Muslim women who were employed in customer-facing roles by private sector employers. Both wore headscarves but wore nothing which covered their faces. Ms Bougnaoui was told that her headscarf had ‘embarrassed’ the employees of a company client she had visited; she was dismissed when she refused to agree not to wear a headscarf on future visits to that client. Ms Achbita had worked for her employer for some time before she started to wear a headscarf; she was then dismissed on the basis that her new practice breached a strict company ‘neutrality’ policy.

AG Sharpston’s opinion in Bougnaoui

Several aspects of AG Sharpston’s opinion are worthy of comment.

First, she rejected the suggestion that EU law on religious discrimination ought precisely to reflect the ECtHR’s article 9 (freedom of religion) jurisprudence, in effect by allowing a human rights justification/proportionality defence to direct discrimination claims ([58] – [67]). AG Sharpston maintained that the Framework Directive 2000/78 (“the Directive”) set down a clear distinction: indirect discrimination can be defended by reference to proportionality, but direct discrimination admits of (much) narrower exceptions.[2] Her position stands in contrast to the view expressed by some senior judges in the UK that the lack of a general justification defence to direct discrimination is a “defect” in the law: see e.g. R (E) v Governing Body of JFS [2009] UKSC 15 at [9].

Second, AG Sharpston concluded that the decision to dismiss Ms Bougnaoui constituted direct, and not just indirect, discrimination ([83] – [89]). “Religion” for these purposes included manifestations of religion like wearing a headscarf. The judgment does not directly engage with the question of how courts should identify whether a particular act constitutes a “manifestation of religion”, but the case-law of the ECtHR on that subject will doubtlessly be persuasive. The recognition that religion is not just a status but an identity partly constituted by acts is intuitively attractive and compares favourably to the sometimes strained efforts of British judges to dissociate “religion” from acts which are obviously part and parcel of a person’s religion.[3] It leaves open the interesting question of whether EU law will permit employers to sanction employees whose religiously-motivated behaviour impacts negatively on other employees or on their work (as in the well-known “evangelising at work” cases). English courts have addressed this situation by distinguishing action taken because of religion/religious manifestations and action taken because of “the way in which (a worker) manifested or shared it”.[4] AG Sharpston’s opinion can probably be reconciled with that approach.

Third, AG Sharpston concluded that there was no basis to conclude that article 4(1) of the Directive (the genuine occupational requirement defence to direct discrimination claims) applied on the facts ([90] – [102]). It was decisive that Ms Bougnaoui remained perfectly able to perform her professional duties. Notably, AG Sharpston found it “hard to envisage” any application of the article 4(1) defence in religious discrimination claims, other than on health and safety grounds ([99]). She also gave a narrow reading to article 2(5) of the Directive (pursuant to which the Directive is subject to national measures which are necessary in pursuit of various public policy objectives), suggesting it could not be relied on by employers citing business reasons ([104] – [105]).

Fourth, AG Sharpston remarked on the application of the principles of indirect discrimination (in case the Court concluded that her characterisation of the claim as direct discrimination was mistaken). While an employer’s business reasons could constitute a legitimate aim, the question of proportionality was more complex ([134]). These kinds of issues could ordinarily be resolved by discussion between employer and employee; but ultimately, where an employer stood to lose out because of the prejudiced attitudes of its customers, “the business interest in generating maximum profit should… give way to the right of the individual employee to manifest his religious convictions” ([133]).

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An analysis of the EU law questions surrounding Article 50 TEU: Part Two

Dr Philip Syrpis

This is the second and final part of this series; the first is available here.

7. What is the status of the UK during the negotiation process?

As discussed above, subject to application of paragraph 4, which deals with participation in discussion in the European Council and Council relating to the withdrawal process, the withdrawing State remains a Member State of the EU, with rights and obligations intact.[1]

As regards the rights of the withdrawing State, certain interpretive difficulties may arise in any attempt to delineate the situations in which the withdrawing State may, and may not, be involved in European Council and Council decision-making. Once again, this is an area in relation to which the guidelines provided by the European Council may provide clarity. In practice it seems almost inevitable that the role and influence of the withdrawing State will inevitably diminish. It is unclear whether the State will have an interest in influencing the making of decisions at EU level which might well never concern it; and arguable that it is not legitimate to afford it such a role. The power of the argument against involvement will of course depend on the extent to which it is envisaged that the withdrawing State aspires to continue to have a relationship with the EU.

As regards obligations, the UK will continue to be bound by EU law rules until the withdrawal agreement enters into force.[2] This includes new EU legislation adopted after Article 50 is triggered, but before the withdrawal agreement enters into force.[3] While the UK is due to assume the Presidency of the Council in the second half of 2017, it is anticipated that alternative arrangements will be made in order to ensure the efficient functioning of the Union.[4] The principle of sincere cooperation enshrined in Article 4(3) TEU would continue to apply, and there are suggestions that it might be used in relation to the conduct of the withdrawing State during the process of withdrawal.[5]

8. How is the withdrawal agreement concluded?

Finally, there are significant uncertainties relating to the conclusion of the withdrawal agreement, both by the EU and the withdrawing State.

Let me begin with the position as regards the EU. The withdrawal agreement itself is negotiated as an EU external agreement, as is made clear by the reference to Article 218(3) in Article 50. Paragraph 2 provides that the agreement is to be concluded ‘on behalf of the Union by the Council acting by qualified majority after obtaining the consent of the European Parliament’.[6] Thus, it is possible for an agreement to be reached without the approval of all 27 Member States; and, unlike in the case of accession, for the scope of the Union to be altered notwithstanding the lack of the unanimous consent of the Member States. Equally, it is possible for an agreement not to be concluded notwithstanding the fact that it is approved by the governments of all the Member States. No agreement can be concluded if a majority in the European Parliament vote against it. It is also possible, as discussed in e) above, that alongside any withdrawal agreement, there will be another agreement, or set of agreements, dealing with the future relationship between the withdrawing State and the Union. To the extent that any such agreements are mixed agreements, they require ratification by all Member States, a process which will inevitably slow down the conclusion of the negotiation process.[7]

On the side of the UK, the withdrawal agreement would require ratification in Parliament, in accordance with the UK’s constitutional requirements.

How might these questions be settled?

The discussion so far indicates that many of the EU law questions relating to the process of withdrawal from the EU are unresolved. Nevertheless, given the uncertainty inherent in Article 50, it is contended here that it is possible, perhaps probable, that there will be litigation in relation to the process. There is the potential for such litigation to occur at both the national and the European level. It is difficult, at this stage, to predict the form which such litigation might take, but there are a range of claims which it is possible to envisage.

Claims may come before the European Court of Justice in the following ways. The most obvious basis for legal action will be in relation to the content and scope of any withdrawal agreement. Such an action might relate both to the procedures through which the withdrawal agreement was reached, and the substantive terms of any such agreement; and might come before the Court either directly in an Article 263 TFEU judicial review action, or indirectly, via a preliminary reference from a national court under Article 267 TFEU. It may, in addition, be possible to seek an advisory opinion from the Court via Article 218(11) TFEU as to whether the agreement is compatible with the Treaties. Actions may also be brought at earlier stages in the process, for example in relation to whether the negotiation process is compatible with EU law. As has been mentioned above, it is possible to envisage the making of claims against the withdrawing State, not only by the Commission under Articles 258 and 260 TFEU, but also, potentially, by the European Council and Council under Article 7 TEU.

There is already discussion of legal action in the UK on the basis of the conduct of the referendum campaign, and over the constitutionality of any decision to pull the Article 50 trigger.[8] Such litigation is likely to raise questions relating to the interpretation of EU law (most obviously, in relation to the interpretation of Article 50, perhaps based on the points discussed above), which the UK courts may decide to refer to the Court of Justice. At each stage of the process, legal action is possible – for example in relation to the conduct of the negotiations, and of course, in relation to the scope and substantive content of the withdrawal agreement(s).

This paper suggests that, in order to avoid the risk of litigation, the rules of the process should be clarified via the guidelines to be provided by the European Council. So as to be able to fulfil this function, the guidelines must be provided prior to any decision by the UK to trigger A50, and should provide as much clarity as possible in relation to the key questions discussed above, including in particular in relation to the ability of the UK to rescind the notification process, the scope of the withdrawal agreement(s), the status of the UK during the withdrawal process, and the mechanisms through which the withdrawal agreement(s) may be concluded. It is recommended that the UK government be fully involved in the drawing up of these guidelines. It may, of course, be that agreement is impossible to attain, or that the European Council refuses to provide guidelines before the decision to trigger Article 50. In such circumstances, it may be that there is litigation in relation to the Article 50 process, with courts playing a key role in shaping the process of withdrawal.

A suggested way forward

It hardly needs to be said that this is a crisis situation for the European Union. The prospect of the withdrawal of the UK from the EU is fraught with economic and political risk. Article 50 is intended to provide for the orderly exit of States from the Union. Whether or not this goal is achieved will largely depend on the conduct of the withdrawing State and the process of negotiation. Nevertheless, the legal framework in which the negotiations take place is also significant, as it determines the parameters within which the range of political actors involved will frame their strategies. The text of Article 50 provides very few answers. Nevertheless it envisages the provision of guidelines by the European Council. These may operate as the vehicle through which the answers to the legal questions identified in this paper are developed. In order to be able to play this role, they should, in the wake of the referendum outcome, be provided in advance of any decision by the UK to trigger Article 50. And, to the extent that this is possible, they should, notwithstanding the wording of Article 50(4), be agreed in negotiation with the UK, in order to minimise the risk of what may prove to be complex litigation, across more than one jurisdiction, in relation to the conduct of the withdrawal process.

I have argued above for Article 50 to be interpreted in a way which ensures that the UK is best able to maintain a working relationship with the UK, and achieve a settlement in which the interests of citizens of the EU are best protected. This suggests that the European Council guidelines should provide not only for a withdrawal agreement, but also for an agreement which defines the future relationship between the UK and the EU. To the extent that this objective is not achievable within two years, the European Council should commit to extending the time period. Most importantly, it should be made clear it is possible for the UK to rescind its notification, together with any procedural steps to be taken in order to stop the process.

Once there is more clarity, the UK will be able to consider its response. The calls to refuse to pull the Article 50 trigger are increasing, with legal efforts within the UK directed to imposing pressure on Parliament, either as a result of the conduct of the referendum campaign, or a result of the rights affected by the withdrawal process, not to trigger Article 50. While this option might be constitutional as a matter of UK law, it would carry with it a multitude of social risks, furthering poisoning relationships between the political elite and the people, who may feel that the result of the referendum has been ignored.[9]

It would be far better for Parliament to accede to the will of the people, and trigger Article 50; but only once the Article 50 process has been clarified; and it is argued here that this should be via European Council guidelines relating to the process of negotiation. Parliament has a role in scrutinising these guidelines, and in providing full guidance to the government and the people in relation to the substantive content and scope of the negotiations, the negotiation timetable, and the steps to be taken in relation to the conclusion and ratification of the resulting agreement(s).

As has been argued above, it should be made clear that it is possible for the UK to rescind the Article 50 notification. The European Council should commit to negotiations with the UK in relation not only to a narrow withdrawal agreement, but also to a broader agreement on the future relationship between the UK and the EU. It is only if these two conditions are met – and it may be possible for the UK to exert not only political but also legal pressure on the European Council in relation to the content of the guidelines – that it is possible to envisage a legitimate outcome to this crisis.

The clarification of the uncertainty surrounding the Article 50 process will enable the UK to make an informed decision in relation to the pulling of the Article 50 trigger. The UK government must then work on its negotiating strategy, and seek to reach an agreement with the EU27 which deals with withdrawal and the future relationship between the UK and the EU. It is only during the process of negotiation that it will become clear what leaving the EU will actually entail. There will, presumably, be a range of difficult decisions, for example in relation to the UK’s desire to control immigration, and to retain access to the single market (and we will all learn a lot about the operation of the EEA, and Switzerland’s relationship with the EU); and about the acquired rights of EU citizens in the UK, and UK citizens in the EU. In the time period in which negotiations will occur, there will no doubt be significant economic and political change within both the EU and the UK. Towards the end of the negotiation period, it will be possible for the UK to make an informed choice; either a) to rescind its notification and remain within the EU, b) to accept the negotiated deal, or c) to exit the EU without a deal. That decision will be for the UK, in accordance with its constitutional requirements. Parliament will of course be involved, and consideration will no doubt be given to allowing the people to have a further say, either via a general election or indeed a second referendum.

The process of withdrawal is not going to be easy. The EU law framework surrounding the operation is very unclear, with the provision of guidelines by the European Council representing a key moment in which it is possible to contribute towards the legitimacy of that process. This paper offers a number of recommendations. It is to be hoped that it prompts careful consideration of the options ahead, so that it is possible to arrive at a legitimate outcome, in which the interests of citizens of the EU are, as far as possible protected.


[1] Nationals of the withdrawing State will, in principle, retain their positions in the EU institutions pending the entry into force of the withdrawal agreement. It is interesting in this regard that there seem to be no plans to replace Lord Hill, the UK Commissioner who resigned in the wake of the referendum result.

[2] It should noted that there may be complications in relation to the enforcement of EU law against the withdrawing Member State; whether before the Court of Justice, under Article 258-260, or before the national courts. See further below.

[3] House of Lords European Committee Report, n7 above at [58].

[4] It seems that Estonia, due to hold the Presidency in the first half of 2018, will assume the Presidency in the second half of 2017; see https://euobserver.com/political/134109.

[5] See Hillion, n4 above at 139-40.

[6] On the possibility of a turf war between the EU institutions, see Duff, n4 above.

[7] See Lazowski, n4 above at 528.

[8] See https://www.theguardian.com/law/2016/jul/03/parliament-must-decide-whether-or-not-to-leave-the-eu-say-lawyers and http://www.theguardian.com/politics/2016/jul/05/deadline-approaches-government-response-brexit-legal-challenge-article-50.  

[9] See also R Ekins, ‘The Legitimacy of the Brexit Referendum’, UK Constitutional Law Association Blog, available at https://ukconstitutionallaw.org/2016/06/29/richard-ekins-the-legitimacy-of-the-brexit-referendum/.

What next? An analysis of the EU law questions surrounding Article 50 TEU: Part One

Dr Philip Syrpis

On June 23, the UK voted by a margin of 52% to 48% to leave the EU.[1] Within hours of the result, significant questions, which hardly surfaced during the long campaign, about the process of withdrawal and the possible terms on which it might take place began to emerge. The majority of these are political; as developments within both the Conservative and Labour parties amply testify. But many are legal. Much attention has, quite rightly, focused on questions of UK constitutional law – with lively debate about the status of referendums, the relationship between Parliament and the royal prerogative, and the role of the Scottish Parliament and Northern Irish Assembly. EU law has also been discussed, with Article 50 TEU, the provision introduced in the Treaty of Lisbon enabling a Member State to withdraw from the EU, being the principal focus.

In this short paper, I offer a tentative analysis of the EU law questions surrounding withdrawal from the EU; focusing on the interpretation and application of Article 50 TEU. The text of Article 50 contains a number of ambiguities, and the answers to many of the legal questions which arise are shrouded in uncertainty. This uncertainty contributes towards the volatility of the current situation, damaging the European economy. I offer some thoughts on the mechanisms through which answers might emerge. Throughout, I suggest possible answers to the legal questions. These are informed by the current political context, and are designed to ensure that the withdrawal process produces an outcome which is legitimate from the perspectives of both the UK and the EU.[2]

At the outset, it is worth emphasising two important points, which might otherwise be obscured.

First, it is all too easy in this context, as I have above, to refer to ‘the UK’ and ‘the EU’. This leads to the belief that both are monolithic entities with set objectives, one ranged against the other as the withdrawal process begins. This is of course not the case. The referendum has made it clear that the UK is a divided nation. England and Wales voted to leave, while Scotland and Northern Ireland voted to remain. There are also painful divisions between urban and rural areas, and the young and the old. Leave campaigners were not forced to, and (at least insofar as their objective was to win the referendum, sensibly) did not choose to articulate a clear vision of the future relationship between the UK and the EU. As a result, the referendum does not offer a clear mandate to the UK government, or to Parliament, which it might use to guide it in withdrawal negotiations. The EU is also divided. The EU institutions, and the governments of the Member States did not want ‘Brexit’, and cannot be expected to be united in their response. Many governments have trade interests which they want to protect. Others see economic opportunities in adopting a harder line against an always reluctant partner. All have an eye on the domestic political context. It is not immediately obvious what sort of deal with the UK best serves the ‘EU interest’.

Second, the legal analysis presented here is, as stated above, tentative. This paper is written in the immediate aftermath of the UK’s vote to leave the EU. I have little doubt that various elements of the legal argumentation can (and hopefully will) be further developed. It is also inevitable that some of the analysis presented here will be overtaken by events, and that much may in the end depend on the resolution to questions not posed here. There is nevertheless, I hope, some utility in producing this analysis at this stage, with the explicit aim of informing the debate among the key actors involved in the Brexit negotiations in this key period before the positions of the European institutions and the governments of the Member States begin to crystallise.

The Article 50 TEU process

The Treaty of Lisbon, via Article 50 TEU, introduced a specific EU law mechanism through which States may withdraw from the European Union. One searches in vain for an analysis of the provision in the main EU law textbooks. The origins of the provision lie in the draft Article I-60 of the Treaty establishing a Constitution for Europe.[3] As such, Article 50 is ‘an integral part of the EU constitutional(izing) package, rather than an element of the de-constitutionalization course instigated by the 2007 Intergovernmental Conference, following the rejection of the Constitutional Treaty’.[4] It has not been used, or tested.[5] In the context of the referendum in the UK, the Article was analysed in detail by the UK Government,[6] and the House of Lords European Committee,[7] and the European Parliament.[8] In the days following the vote in favour of leaving the EU, the Houses of Parliament have produced further reports,[9] and the withdrawal procedure has been the focus of much analysis and speculation.[10]

As Hillion says, ‘a common critique in the literature is that the procedure of Article 50 is formulated in an ‘incomplete’, ‘unclear’, if not ‘cryptic’ fashion, thus generating ‘uncertainty’’.[11] As will become clear below, the text of the provision does not provide answers to many of the key legal questions. Were the interpretation of the Article to come before the Court of Justice, and there is some discussion below of the circumstances in which this may occur, it could therefore be expected to apply a flexible purposive approach.[12] Hillion argues, and some may find this rather paradoxical, that Article 50 has a specific function in relation to the integration process in that it ‘bolsters the normative basis for a negotiated withdrawal’ and ‘points towards a strong post-withdrawal engagement by the Union with the former Member State’.[13] My analysis below builds on this approach, seeking to interpret the provision in the context of the current situation in a way which ensures that the UK is best able to maintain a working relationship with the EU, and achieves a settlement in which the interests of citizens of the EU are, as far as possible, protected. Any other approach, such as one, for example, based on the safeguarding of the interests of the EU27 at the expense of the interests of the withdrawing State, should be rejected.

Article 50 provides that a Member State ‘may decide to withdraw from the Union in accordance with its own constitutional requirements’. It ‘shall notify the European Council of its intention’. A process of negotiation ensues, ‘in the light of the guidelines provided by the European Council’. Paragraph 3 makes it clear that 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’, ‘unless the European Council, in agreement with the State concerned, unanimously decides to extend this period’. Thus, the withdrawing state remains a full member of the EU until the process has run its course, though paragraph 4 does provide that ‘for the purposes of paragraph 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’. Finally, paragraph 5 states that ‘if a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49’; that is the normal accession procedure.

The operation of Article 50 raises a number of difficult legal questions. In the sections below, this paper considers 1) whether it is possible to withdraw from the EU without using the Article 50 process; 2) who makes the decision to trigger Article 50; 3) whether there should be informal negotiations prior to the triggering of Article 50; 4) whether it is possible to rescind an Article 50 notification, or otherwise stop the withdrawal process; 5) the scope of the withdrawal negotiations; 6) the extension of the two-year time period; 7) the status and likely influence of the UK during the negotiation process; and 8) the conclusion of the withdrawal agreement. It then considers the ways in which any disagreements as to the operation of Article 50 may be resolved; before concluding with an analysis of way in which the EU law might be developed in such a way as to ensure that a legitimate outcome will emerge.

1. Is it possible to withdraw from the EU without using Article 50?

Prior to the Treaty of Lisbon, there was academic debate over whether it was even possible to withdraw from the European Union or Community, given the commitment to ‘ever closer union’ in the Treaties, and the ‘unlimited’ duration of the enterprise.[14] It seems clear that withdrawal must always have been legally possible;[15] in the absence of specific EU law provisions, withdrawal would take place under public international law rules, in particular the rules established in the Vienna Convention on the Law of Treaties.[16] The inclusion of Article 50 in the Treaties in 2009 ‘reflects the intention to submit [withdrawal] to the canons of the EU legal order, instead of leaving it to the vicissitudes of international law’,[17] and to establish a withdrawal process which is able to lead to an orderly exit from the EU, in which levels of disruption and uncertainty are minimised. In the operation of Article 50, these objectives should be borne in mind.

Within the domestic debate there has been discussion of whether there are alternatives to Article 50. There have been suggestions, in particular among leave campaigners,[18] to the effect that it would be possible to effectuate withdrawal via repeal of the European Communities Act 1972, and thereby reclaiming the ability to legislate domestically free from EU law constraints. This would open up the possibility for legal action to be brought against the UK, under EU and international law.[19] The House of Lords in May 2016 stated that Article 50 provides the only means of withdrawing from the EU consistent with the UK’s obligations under international law: ‘A Member State could not fall back on the Vienna Convention on the Law of Treaties to avoid the withdrawal procedures in Article 50, because the Vienna Convention had to be read in the light of the specific procedures for treaty change laid down in the EU Treaties’.[20] As opinion in the UK has quickly coalesced around the proposition that withdrawal will be pursued via the Article 50 route, the rival arguments are not considered further here

2. Who makes the decision to trigger Article 50?

The decision to trigger Article 50 is said to be for the withdrawing state, ‘in accordance with its constitutional requirements’. The EU institutions, including the governments of the EU27, cannot impose legal pressure on the withdrawing State; though of course they may be able to exert some political pressure,[21] seeking, for example, to ensure that the economic and political uncertainty following the UK’s vote on 23 June is minimised. As a matter of UK constitutional law, it is clear that the referendum only has advisory status.[22] There have been debates within the UK about the extent to which the decision to trigger Article 50 is for the Prime Minister, acting under prerogative powers,[23] or for Parliament;[24] and also questions about the extent to which the Scottish Parliament may be able to influence, or perhaps even veto, any decision to pull the Article 50 trigger.[25] To the extent that the decision to trigger Article leads inexorably to a process through which the UK withdraws from the EU, with a resultant effect on a range of legal rights, protected by virtue of EU law and the operation of the European Communities Act 1972, it seems as though the approval of Parliament is required.[26] And, it is certainly legally possible that, notwithstanding the referendum result, Parliament might decide not to trigger Article 50.[27]

While the EU institutions cannot impose legal pressure on a State to trigger Article 50, the process of withdrawal is governed by EU law. A notification for the purposes of Article 50, should only be treated as a notification if it is made according to the conditions laid down in Article 50. Thus, where a notification is presented to the European Council, it should ensure its admissibility. As discussed below, it may be possible for questions relating to the validity of any notification to come before the courts. However, given that the only substantive condition relating to the notification of the intention to withdraw relates to compliance with domestic constitutional requirements, it is to be anticipated that, in any case before it, the European Court of Justice will tread carefully.[28] As far as possible, it should leave questions of national constitutional law to be determined within the Member State.

3. Should there be informal negotiations before Article 50 is triggered?

The Article 50 process, to the extent that it is outlined in the Treaties, only begins once a valid notification has reached the European Council. As such, it seems that questions relating to whether there may or may not be informal negotiations between the withdrawing state and the EU institutions relating to the withdrawal process are to be determined in the political rather than the legal realm.[29]

The legal position is also unclear in relation to when the ‘guidelines provided by the European Council’, in the light of which the Union is to negotiate and conclude an agreement with the withdrawing state, are to be adopted, or what their scope might be. By virtue of paragraph 4, it is said that the withdrawing state shall not participate in the discussions in the European Council ‘for the purposes of paragraph 2 and 3’ or ‘in decisions concerning it’.

In this paper, it is argued that these guidelines are likely to assume much importance, in particular in relation to the current situation, in which Article 50 may be triggered for the first time. It is suggested that it is important that agreement is reached between the European Council and the UK, in relation to full details of the withdrawal process, the scope of a withdrawal deal, and the mechanisms through which the deal will be concluded and ratified; and crucially, that this should occur before the decision to trigger Article 50. The legitimacy of withdrawal process will be enhanced to the extent that the UK Government is as fully aware as possible of the consequences entailed by triggering Article 50, and is able to secure informed constitutional consent for embarking on the withdrawal process.[30] Thus, it is to be hoped that the European Council, in the wake of the referendum result, and before any decision to trigger Article 50, is working on the preparation of these guidelines, and is consulting with representatives of the UK in relation to their content. If the EU institutions are unwilling to provide guidelines, the UK government should apply whatever legal and political pressure it is able to muster in order to obtain clarification from the EU institutions in relation to the conduct of the withdrawal process; making it clear that the levels of uncertainty over the process of withdrawal are likely to delay the decision to trigger Article 50.

4. Is it possible to rescind an Article 50 notification or otherwise stop the process?

Perhaps the most fundamental question to which a legal answer is required is whether it is possible for the withdrawing State, having notified its intention to withdraw, to rescind or revoke the notification, or, in any other way end the withdrawal process. Article 50 does not explicitly contemplate this possibility, but neither does it explicitly rule it out. There has been very little academic comment on this issue, but given the uncertainties surrounding the way in which the UK Government might seek to act following the referendum, it is an urgent question. Paragraph 4 indicates only that 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… unless the European Council, in agreement with the State concerned, unanimously decides to extend this period’. That may be read as meaning that once the trigger is pulled, the inexorable outcome is either withdrawal from the EU on the basis of the negotiated deal, or, in the event that a deal is not agreed within the two year period and there is no unanimous agreement to extend it, a default ‘no deal’ position, in which the UK’s relationship with the EU is governed by standard WTO rules. However, if it is possible to read in the option for the withdrawing Member State to ‘stop the clock’, it may be that there is a third possible outcome: a decision, taken within the two-year negotiating period, to rescind or revoke the notification and remain within the EU.

The clearest statements on this point were made in the evidence presented to the House of Lords in February 2016. Sir David Edward and Sir Derrick Wyatt QC were clear that it is possible to reverse a decision to withdraw at any point before the date on which the withdrawal agreement takes effect. In the words of Professor Wyatt:

“There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a State withdraws, it has to apply to rejoin de novo. That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind.”[31]

Other commentators take a different view. Barber, Hickman and King, for example, proceed on the basis that the Article 50 process is irreversible; ‘there is no turning back once Article 50 has been invoked. If no acceptable withdrawal agreement has been reached within two years, the exiting Member State is left without any deal with the EU’. They conclude that the UK ‘could not safely assume that it is entitled to withdraw its notification on the basis of the terms of Article 50’.[32]

The Treaty of Lisbon appears to have been drafted with the assumption that Article 50 would only be triggered, in accordance with constitutional requirements, once a clear consensus had been reached within the withdrawing Member State. Regardless of the arguments now raging in the UK about the authority and legitimacy of the referendum, the responsibility of Parliament, and the role of the Scottish Parliament and Northern Irish Assembly, it seems at the very least possible that the decision by a Member State to withdraw from the EU might be politically contested, and subject to significant internal scrutiny. After all, it is widely anticipated that the negotiation of any withdrawal agreement would take two, or perhaps more years. Within such a time period, political constellations are likely to shift appreciably. It is also, and this is a point to which I return in the final section, only once negotiations with the EU have begun, that the nature of the withdrawing State’s future relationship with the EU, and together with that, the practical consequences of withdrawal, will begin to emerge.

All this militates in favour of a reading of Article 50 which makes it possible for the Member State to revoke a notification.[33] It is, for example, possible to envisage the following scenario. A decision to trigger Article 50 provokes turmoil in a Member State. A general election follows. A decisive majority is attained by parties advocating remaining within the EU. In such circumstances, it seems ludicrous to hold the State to the commitment to negotiate a withdrawal agreement from the EU, and then afford it the opportunity to apply for readmission under Article 49. It is clearly far simpler to allow the withdrawal process to be stopped.

Given the uncertainty here, and the clear link between ascertaining an answer to this question and making the decision to pull the Article 50 trigger, it seems imperative that an answer is found either via the European Council guidelines, or, if necessary, in an action before the Court of Justice to interpret EU law.

5. What is the scope of a withdrawal agreement?

The agreement to be concluded with the withdrawing State, is, according to Article 50(2), to set out ‘the arrangements for withdrawal taking account of the framework for its future relationship with the Union’. This appears to envisage a distinction between the withdrawal agreement (or ‘divorce settlement’), and any future framework, which might be ‘left for a more comprehensive agreement, to be negotiated at a later date’.[34]

Legally, it seems as though even the ‘divorce’ may well require more than one agreement. According to Lazowski, ‘agreements on withdrawal, falling under the category of international Treaties [concluded in accordance with the procedure laid down in Article 218(3) TFEU], cannot amend EU primary legislation but can regulate non-primary law matters only. This implies that alongside an international treaty regulating withdrawal, the remaining Member States will – most likely – have to negotiate between themselves a treaty amending the Founding Treaties in order to repeal all provisions touching on the departing country’.[35]

When one considers the relationship between the divorce agreement and any agreement on the envisaged future relationship between the withdrawing State and the European Union, the picture becomes still murkier. If the aim is to reach agreement between the withdrawing State and the EU within the two year time period, the withdrawal agreement should be limited in scope. If on the other hand, the objective is to set the course for the future relationship, the agreement will of course need to be broader. It is certainly necessary for the withdrawal agreement to ‘bridge the gap’ between the old EU regime and the new future relationship,[36] and to deal with the issues surrounding the acquired rights of individuals and companies which might, over time, be phased out. A ‘catalogue of dossiers would have to be developed’;[37] with due consideration of what can and should be included within the withdrawal agreement, and what is to be determined in other treaties.

In line with the approach adopted throughout this paper, it is argued that these issues should be addressed in the guidelines provided by the European Council, and, as far as possible, agreed with the withdrawing Member State before the decision to pull the Article 50 trigger is made. In the last section, I argue for a broad interpretation of the scope of the withdrawal agreement, so that the contours of the future relationship between the withdrawing State and the EU are known before the end of the notification period.

6. Can the time period be extended?

Article 50(3) provides that the Treaties shall cease to apply to the withdrawing State from the date of entry into force of the withdrawal agreement, or, failing that, two years after the notification ‘unless the European Council, in agreement with the State concerned, unanimously decides to extend this period’.

Thus, it is not clear, even at the date on which Article 50 is triggered, when withdrawal might occur, or indeed on which terms. One possibility, though this seems unlikely, is that the agreement relating to withdrawal is reached swiftly. In this case, the Treaties will cease to apply to the withdrawing State from the date on which the withdrawal agreement enters into force.

If it is not possible to reach a swift agreement, and as the two-year time period comes towards an end, the prospect of a withdrawal without a negotiated agreement will begin to loom large. This would mean exit from the EU without a withdrawal agreement, with no option but to fall back on the trading terms derived from membership of the World Trade Organisation.[38] Transitional arrangements would be handled unilaterally by each side. The view of Sir David Edward is that ‘the long term ghastliness of the legal complications is almost unimaginable.’[39]

It is in the best interests of all, in particular of individuals and companies with acquired rights in the UK and the remainder of the EU27, for exit without an agreed withdrawal deal to be avoided. There are, it seems to me, two ways in which this may be accomplished.

First, Article 50 expressly provides for the two year time period to be extended, but only on the basis of the unanimous agreement of all States. That agreement cannot be guaranteed; and at this stage it is impossible to speculate about the likely pressures within various Member States which may affect the decisions of their governments about whether to agree to an extension of the negotiations. Thus, it seems that this is possible, but politically very uncertain. In relation to the extension of the time period, there is also what I take to be a mischievous suggestion by O’Dell that the negotiated period could, with the agreement of all, be extended indefinitely, with the result that withdrawal cannot take place.[40]

Second, if, as argued in this paper, it is possible to revoke the Article 50 notification, it becomes possible for the withdrawing State to make a unilateral decision to avoid the prospect of a disorderly exit, and to remain within the EU. The ramifications of this are considered more fully in the second part of this post.


The author would like to thank Albert Sanchez-Graells, and the many other friends and colleagues with whom he has been discussing Article 50 since June 23.


[1] See http://www.bbc.co.uk/news/politics/eu_referendum/results.

[2] In this paper I do not engage with the literature on legitimacy; though it would be interesting to develop a more overtly theoretical approach. The core concern is with the social and normative acceptability of the withdrawal process, in both the UK and the EU.

[3] OJ C 169/1 [2003].

[4] See C Hillion, ‘Accession and Withdrawal in the Law of the European Union’ in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (OUP, 2015) 126 at 149. See also A Lazowski, ‘Withdrawal from the European Union and Alternatives to Membership’ (2012) 37 ELRev 523. Hillion references the scholarly scrutiny the provision has received at note 46.

[5] There is some discussion of Article 50 in Re Ratification of the Treaty of Lisbon [2010] 3 CMLR 13, before the German Constitutional Court at [305]-[306]; and in Re Ratification of the Lisbon Treaty [2010] 1 CMLR 42, before the Latvian Supreme Court. It was also referred to in the High Court in the UK in Shindler [2016] EWHC 957 (Admin).

[6] HM Government, ‘The Process for Withdrawing from the European Union’, Cm 9216, February 2016, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/503908/54538_EU_Series_No2_Accessible.pdf.

[7] House of Lords European Committee, 11th Report of Session 2015-16, ‘The Process of Withdrawing from the European Union’, May 2016, available at http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeucom/138/138.pdf.

[8] European Parliament Briefing, ‘Article 50: Withdrawal of a Member State from the EU’, February 2016, available at http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf.

[9] House of Commons Briefing Paper Number 7551, ‘Brexit: How does the Article 50 process work?’, 30 June 2016; House of Lords Library Note, ‘Leaving the EU: Parliament’s Role in the Process’, 30 June 2016.

[10] See for example: A Renwick, ‘The Road to Brexit: 16 Things You Need to Know about the Process of Leaving the EU’, The Constitution Unit, available at https://constitution-unit.com/2016/06/24/the-road-to-brexit-16-things-you-need-to-know-about-the-process-of-leaving-the%E2%80%AFeu/#more-5134, N Barber, T Hickman and J King, ‘Pulling the Article 50 ‘trigger’: Parliament’s Indispensable Role’, UK Constitutional Law Association Blog, available at https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/, K Armstrong, ‘Push Me, Pull You, Whose Hand on the Article 50 trigger’, UK Constitutional Law Association Blog, available at: https://ukconstitutionallaw.org/2016/06/27/kenneth-armstrong-push-me-pull-you-whos-hand-on-the-article-50-trigger/, S Douglas-Scott, ‘Brexit, The Referendum and the UK Parliament: Some Questions about Sovereignty’, UK Constitutional Law Association Blog, available at https://ukconstitutionallaw.org/2016/06/28/sionaidh-douglas-scott-brexit-the-referendum-and-the-uk-parliament-some-questions-about-sovereignty/, E O’Dell, ‘Would it fly? A possible Article 50 route to a second referendum’, available at http://blogs.lse.ac.uk/politicsandpolicy/article-50-route-to-a-second-referendum/#Author, A Duff, ‘Everything you need to know about Article 50 (but were afraid to ask)’, available at http://verfassungsblog.de/brexit-article-50-duff/, A Georgopoulos, ‘’Brexit’, Article 50 and the Constitutional Significance of the UK Referendum’, available at http://www.ejiltalk.org/brexit-article-50-teu-and-the-constitutional-significance-of-the-uk-referendum/, ‘S Peers, ‘Article 50: Can the UK force the pace of Brexit’, The Conversation, available at https://theconversation.com/article-50-can-the-eu-force-the-pace-of-brexit-61626, P Syrpis, ‘Once the UK triggers Article 50 to start Brexit, can it turn back?’, The Conversation, available at https://theconversation.com/once-the-uk-triggers-article-50-to-start-brexit-can-it-turn-back-61727.

[11] Hillion, n4 above at 135.

[12] See G Conway, The Limits of Legal Reasoning and the European Court of Justice (2014, CUP).

[13] Hillion, n4 above at 150-51.

[14] See Case 6/64 Costa v ENEL [1964] ECR 585.

[15] See also Lazowski, n4 above at 525: ‘it is widely accepted that that lack of an exit clause does not preclude the possibility of withdrawal from an international organisation’. In relation to the EU, withdrawal has been contemplated at various times in various states; in particular in the UK, which held a referendum in 1975 on whether the UK should stay in the European Community (Common Market). In relation to the ‘idiosyncratic’ situation of Greenland, see F Harhoff, ‘Greenland’s Withdrawal from the European Communities’ (1983) 20 CMLRev 13.

[16] See also re Secession of Quebec [1998] 2 SC 217, before the Canadian Supreme Court.

[17] Hillion, n4 above at 149.

[18] See eg http://www.voteleavetakecontrol.org/a_framework_for_taking_back_control_and_establishing_a_new_uk_eu_deal_after_23_june

[19] See also Duff, n10 above.

[20] House of Lords European Committee Report, n7 above at [9].

[21] See eg: https://theconversation.com/article-50-can-the-eu-force-the-pace-of-brexit-61626 and http://www.theguardian.com/politics/2016/jun/25/eu-emergency-talks-brexit-berlin

[22] See European Union Referendum Act 2015; discussed in Douglas Scott, n9 above.

[23] See http://www.theguardian.com/politics/2016/jul/05/brexit-can-go-ahead-without-parliament-vote-article-50-government-lawyers-say.

[24] See eg: https://publiclawforeveryone.com/2016/06/24/brexit-legally-and-constitutionally-what-now/

[25] See Scottish Parliament European and External Relations Committee, SP Paper 978, 16 March 2016, http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Reports/EUS042016R02.pdf.

[26] See e.g. David Pannick in The Times, http://www.thetimes.co.uk/article/why-giving-notice-of-withdrawal-from-the-eu-requires-act-of-parliament-dz7s85dmw; and Barber, Hickman and King, n9 above.

[27] See e.g. AC Grayling, https://www.nchlondon.ac.uk/2016/07/01/professor-c-graylings-letter-650-mps-urging-parliament-not-support-motion-trigger-article-50-lisbon-treaty-1-july-2016/.

[28] See by analogy the case law relating to Article 4(2) TEU, discussed in A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 CMLRev 1471.

[29] The ‘EU side’ appears, publically at least, to be refusing to open informal negotiations with the UK until the decision to trigger Article 50 is made. See http://www.theguardian.com/politics/2016/jun/27/europe-leaders-crunch-talks-brexit-fallout.

[30] It is certainly possible to finesse any legal objections to the participation of the UK in the process of drawing up the European Council guidelines, notwithstanding the wording of Article 50(4). One can argue that the guidelines are a necessary precursor to the commencement of the withdrawal process; and that prior to the triggering of the Article 50, the UK remains a full member of the European Council.

[31] House of Lords European Committee Report, n7 above at [10].

[32] Barber, Hickman and King, n10 above. See also European Parliament Briefing, n8 above, which states that ‘most commentators’ argue that it is impossible, or at least doubtful from a legal point of view, to unilaterally revoke an Article 50 notification.

[33] See Duff, n10 above: ‘Within that two year period – for instance, following a British general election and change of government or, less likely, after a second referendum ‑ it would be perfectly possible for the UK to revoke its decision to quit. That Article 50 is silent on the matter of revocation does not mean that a change of direction would be illegal under EU law (as long as the CJEU were convinced that the switch was constitutional). The EU is well practised in the art of the stopped clock. Given the collateral damage done to the remaining EU by Brexit, a notification that London had changed its mind would be met with very great, if somewhat exasperated relief.’

[34] Hillion, n4 above at 140.

[35] Lazowski, n4 above at 529.

[36] House of Lords European Committee Report, n7 above at [25]. See also [31]: Coordination between the withdrawal treaty on the one hand and the future relations treaty on the other would be important. The UK’s aim would be to have a smooth transition between the past in the EU and the future in the new arrangement.

[37] Ibid at 529-33.

[38] Note however that even this option may not be straightforward, and will require agreement within the WTO. See http://www.ft.com/cms/s/0/745d0ea2-222d-11e6-9d4d-c11776a5124d.html#axzz4Dd5Y4Uki.

[39] House of Lords European Committee Report, n7 above at [49].

[40] See http://blogs.lse.ac.uk/politicsandpolicy/article-50-route-to-a-second-referendum/

Political Reductionism at its Best: Some Considerations on the EU Institutions’ Response after the UK Referendum

Giuseppe-MartinicoGiuseppe Martinico

This post first appeared on the Verfassungsblog; it is reproduced here with kind permission.

Colleagues have already commented upon the response of the EU institutions to the outcome of the referendum held on 23 June, stressing the rushed and populist attitude shown by the Commission and the EU Parliament, referring, for instance, to the exclusion of the UK from the “informal” meeting of the European Council held on 29 June and to the way in which Juncker made a joke of Nigel Farage, asking why he was in the European Parliament after the UK vote.

However, there is another episode which is very telling, about the respect shown by the “political class” towards Art. 50 of the TEU and, in general, other relevant norms to be taken into account independently from the activation of the exit procedure, like, for instance Art. 4.2 TEU demanding equal treatment of the Members States and respect of their national identity and constitutional structure.

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The EEA Agreement and the ‘Norway option’: integration without co-determination

Henrik Nordling Henrik Nordling[1]

The result of the UK’s EU referendum has thrown the EEA Agreement to the forefront as a potential template for the UK’s future relationship with the EU. The term ‘Norway option’, under its various guises, is steadily referenced to as a potential compromise. However, Norway’s relationship with the EU is relatively complex: Norway has adopted about ¾ of the EU legislation of that of an ‘ordinary’ EU Member State, but does not have any powers of determination in the EU legislative process. Norway benefits from the advantages of being part of the internal market, but does not get to decide on the rules which govern it – only adhere to them. Nonetheless, Norway is not bound by some of the EUs most hotly debated policy areas, such as agriculture, fisheries and home affairs.

An overview of Norway’s EU relationship

The UK and Norway share a common past when it comes to the EU. In 1960 Norway and the UK were part of the seven states that founded the EFTA as an alternative to what was then the European Economic Community (EEC). Then in 1962 Norway, along with the UK, Denmark and Ireland applied to join the EEC only to be met with a resound ‘non’ from Mr De Gaulle. Although the General’s veto was aimed squarely at the Anglo-Saxons across the channel, Norway suffered collateral damage. Still, the Norwegian government continued negotiations and that were completed in 1972. Parliament was overwhelmingly in favour of joining the EEC, but the question was put to a referendum – yes one of those – and the result was a quite clear ‘no’ which caused the prime minister to resign and Norway ended up with a trade agreement with the EEC instead. History has a tendency to repeat itself. Norway then had a second referendum on EU membership in 1994, but the answer was once again No. As an aside, it is worth noting that on a regional basis the Yes vote was the clear winner in Oslo and the surrounding regions whilst No blanketed the rest of the country in both referendums.

The EEA Agreement was entered into between five EFTA States (Sweden, Austria, Norway, Iceland and Finland) and the EU Member States in 1992 and entered into force in 1994. Lichtenstein became a full participant in the EEA Agreement in 1995, and in the same year Sweden, Finland and Austria left the EFTA and the EEA to join the EU. This leaves us with today’s three remaining EEA EFTA States: Norway, Iceland and Lichtenstein. Switzerland, the fourth remaining EFTA State, chose to enter into a bilateral agreement with the EU.

The EEA Agreement, at its most basic level, extends the EU’s internal market to the three EEA EFTA States, granting equal rights and obligations for citizens and economic operators in the EEA. The substantive scope of the EEA Agreement thus includes, at its core, the four freedoms (goods, services, persons and capital), competition rules and State aid. In order to ensure that the internal market functions well it was also imperative to include various ‘horizontal provisions’ related to the four freedoms (such as consumer protection and environmental regulation) that serve to strengthen and support the internal market. There are also provisions relating to cooperation outside the four freedoms. These are known as ‘flanking areas’ (such as research and development, culture and education) which further strengthen the cohesion of the EEA.

However, the EEA Agreement does not cover the following EU policies: Common Agriculture and Fisheries Policies, Customs Union, Common Trade Policy, Common Foreign and Security Policy, Justice and Home Affairs and Monetary Union. Although it should be noted that EU Member States have the ability to opt out of some of these policies to a certain extent.

An interesting reflection is that the relative proportion of EEA EFTA to EU Member States was 5:12 in 1992, which is considerably better than it is now at 3:28. Whether the same agreement would be reached under this constellation is not sure.

To put it simply the EEA EFTA States adopt some, but not all of the EUs rules and only within certain policy areas that are of ‘EEA Relevance’. But this divide is not as clear as it may seem when it comes to Norway, as cooperation can and does occur within policy fields that are outside the remit of the EEA Agreement. For instance, within the field of Justice and Home Affairs, Norway is a member of the Schengen area. Within the field of Foreign and Security Policy, Norway has entered into an agreement with the EU as regards EU civilian and military operations and has participated in EU-led operations in the Balkans and the Horn of Africa. Norway also participates in Europol, the European law enforcement organisation and has entered into an agreement based on the principles of the European Arrest Warrant. Norway has thus extended its cooperation with the EU to a number of areas where the two parties share common interests that are outside of the EEA Agreement.

Administration, legislation and the lack of co-determination

Administration of the EEA Agreement is shared between the EU and the EEA EFTA States. The European Commission carries out supervisory functions within the EU and the EFTA Surveillance Authority carries out the same role for the EEA EFTA States. This has led to the term ‘one agreement, two authorities’ which rings true insofar as it denotes the existence of separate supervisory organs. Nonetheless, both work together and must ensure uniform application of the EEA rules. The task of uniform interpretation within the EEA lies with the EFTA Court, which is responsible for interpreting the EEA Agreement with regard to the EEA EFTA States. Its role is similar to that fulfilled by the EU Court of Justice with regard to the EU Member States.

In terms of legislation, the EEA Agreement adopts the principle of ‘homogeneity’ which means that the same rules and conditions apply to all economic operators within the EEA. To this end, the EEA Agreement is continuously updated and amended to mirror the current EU internal market legislation. This importantly includes the incorporation of EU secondary legislation (notably Regulations, Directive and Decisions)

Under the EU legislative process all EU Member States will have several means to influence, shape and decide on the final text. But what about Norway – as an EEA EFTA State, would it be left without a ‘say’? Well, not exactly. Through a system known as ‘decision shaping’ Norway participates in expert groups and in the preparatory work of the Commission, providing comments on green papers that are sent to the European Parliament and Council. EEA EFTA States representatives also meet with their EU counterparts in the EEA Council to provide political oversight and guidance. An EEA Joint Parliamentary Committee provides a forum for MEPs and EEA EFTA national MPs to discuss matters of joint interest. These are all different forms of indirect influence, but a crucial detail of the EEA Agreement is that it does not give the EEA EFTA States any direct involvement in the EU legislative process or decisional powers. Essentially, although Norway may have a ‘say’ it does not have a vote.

EU legislation also does not have direct effect in Norway. Rather, EEA relevant legislation will have to be ‘incorporated’ into the EEA Agreement. The task of incorporation is performed by perhaps the most central of the ‘joint’ EU/EEA bodies: the EEA Joint Committee, which incorporates EU rules by way of decision (JCD).

The process of incorporation essentially involves a dialogue between the EEA EFTA States and EFTA institutions, on the one hand, and their EU counterparts and EU institutions on the other. Each ‘side’ of the EEA Agreement must give its consent to the contemplated JCD before it can be adopted by the EEA Joint Committee. Only once a piece of secondary legislation has been incorporated does it produce effects in Norway.

A distinguishing feature of the EEA Agreement is that the EEA EFTA States have not transferred legislative powers to the EEA Joint Committee. This implies that, on occasion, the EEA EFTA States may need to obtain the approval of their national parliament in order for the JCD to be binding. This is reflected in Article 103(1) EEA and known as a ‘constitutional requirement’ which allows for the direct involvement of the EEA EFTA States’ national parliament. Ultimately, the lack of transfer of legislative power provides the EEA EFTA States with something truly unique vis-à-vis their EU counterparts: a right of reservation. In effect, an EEA EFTA State can refuse to incorporate EU legislation that is EEA relevant. This is almost never used and the consequences are unclear. Norway has used this ability only once: in regards to the Third Postal Directive in 2011. This resulted in the EU threatening to exclude Norway from parts of the single market before the Directive was finally incorporated as part of the change of Government in Norway in 2013. Continue reading

Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty

Sionaidh Douglas-Scott

So, we have the result of the Referendum, and a majority of voters have voted to leave the EU. A mantra of Leave campaigners seems to have been the desire to ‘take back control’. There has been much talk of sovereignty, although less clarity on what it actually means. However, at its most basic, there are at least three notions of sovereignty that are relevant in the context of Brexit, and they are often confused. The first is parliamentary sovereignty, which is said to have particular resonance in the UK because, due to the vagaries of the uncodified UK Constitution, the Westminster Parliament has been recognised as a body with unlimited legislative power. Yet the parliamentary sovereignty of a representative democracy may seem to be at odds with popular sovereignty as exercised in a referendum. Popular sovereignty also has other implications, such as in Scotland, where an indigenous Scottish tradition claims that sovereignty resides in the Scottish people, in spite of the alternative claims of Diceyan parliamentary sovereignty. Thirdly, there is external sovereignty: whereby a country may be sovereign and recognised as independent by the international community. But states recognise that international agreements such NATO, or EU treaties, curb sovereignty in practice. However, these constraints are willingly accepted by states because of the benefits that pooling or ceding some sovereignty can bring – indeed it can even enhance sovereignty in another sense of a state’s power or ability to deal with certain issues.

These are three different concepts of sovereignty, but they have become very confused in the context of Brexit and the UK’s relations with the EU. Now we have the results of the Referendum vote, what are the implications of ‘taking back control’ for sovereignty? This blog examines three specific issues arising in the immediate aftermath of the Brexit vote which reveal the extent of confusion over sovereignty.

  1. The Referendum

The referendum result is not binding

The Referendum vote is an expression of popular sovereignty. But referenda have not been a highly significant feature of UK Constitutional law in the past and there is still uncertainty as to their place in our Constitution. Labour MP David Lammy has called on Parliament to ‘stop this madness’ and to vote in Parliament against the referendum decision to leave the EU. A large majority of MPs are in favour of remaining within the EU, so Parliament would not pass legislation to leave the EU unless it felt compelled to do so by popular demand expressed through a referendum. Could Parliament actually vote against Brexit? According to classic, Diceyan notions of sovereignty, if Parliament is actually sovereign it can legislate to do anything, including to ignore a non-binding referendum. The EU in-out Referendum is a creature of the European Union Referendum Act 2015. There is no requirement in the Act that the UK Government implement its results, nor does the statute set any time limit for implementing a vote to leave the EU. It is a pre-legislative, or consultative, referendum, enabling the electorate to express its opinion before any legislation is introduced. The 1975 referendum on the UK’s continued membership of the EEC was also an example of this type. In contrast, the legislation setting up the Alternative Vote (AV) referendum held in May 2011 (Parliamentary Voting System and Constituencies Act 2011)  would have introduced a new system of voting without further legislation, although this did not happen because there was a large majority against change.

So whether a referendum is legally binding depends on the structure of the legislation which enables it. Parliament decides that. The UK does not have a codified constitution with provisions requiring referendum results to be implemented, unlike, for example, Ireland, where the circumstances in which a binding referendum is held are set out in its Article 47 of its Constitution. Indeed, even those UK referenda that appear to dictate consequences, such as the AV referendum, are not completely binding, in the sense that Parliament (due to parliamentary sovereignty) could in any case repeal the legislation creating the obligation.

However, although there may be no legal obligation to abide by the result of the referendum that is not the same as saying there is no political commitment to do so, and MPs may feel a strong obligation to act on the results of the vote, especially if they fear reprisals from their electorate in the form of being voted out of office at a future election. So popular sovereignty and parliamentary sovereignty appear to be at odds. Which, if either, ought to predominate? Continue reading

Brexit: The Devolution Dimension

Jo Murkens

The results of the third nation-wide referendum in the United Kingdom are still sinking in at home and around the world. Just below 52% voted to leave the European Union, just over 48% voted to remain. The widespread conclusion is that the UK must leave the EU.

But there is another way of reading the result. The United Kingdom is not a centralised state. It is a ‘family of nations’. There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing. England and Wales voted to leave, but Scotland and Northern Ireland voted to remain. Recognising that split is not a matter of shifting the goalposts after the fact. It is about respecting an established, indeed a compelling constitutional order.

Before Westminster politicians think about the practicalities of withdrawing from the EU, they urgently need to address the constitutional consequences. What is the overriding objective? To give legal effect to the will of the UK electorate as expressed in an advisory referendum? Or to preserve the United Kingdom, which is split 2:2?

The strongest case against EU withdrawal is that it is not in the UK’s interest. On that view, an overriding state interest is invoked not to disregard the will of the people, but to recognise that the result divides the constituent parts of the United Kingdom. Abrogation of the Scottish and Northern Irish results would violate the principle of formal co-equality among the four British nations. That stance almost eagerly invites Irish republicans to re-unify Ireland and Scottish nationalists to launch a second independence referendum.

Of course, if the overriding objective is to give legal effect to the overall numerical tally and withdraw from the EU, then the Westminster Parliament must first overcome several obstacles before it can dedicate itself completely to the Brexit negotiations. It must repeal the European Communities Act 1972 by which it became a member state. It must also amend the devolution legislation for Scotland and Northern Ireland. EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. Section 29(2)(d) of the Scotland Act 1998, for example, provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. A similar provision, section 6(2)(d), appears in the Northern Ireland Act 1998. Indeed, the status of the UK and Ireland as EU member states and signatories to the European Convention on Human Rights was fundamental to the negotiation of the Belfast or ‘Good Friday’ Agreement.

Amending the devolution legislation would be technically easy, but politically hazardous. It would add fuel to the fire stoked up by Scottish demands for independence. It would place ‘a bomb under the Irish peace process’. If Westminster is serious about Brexit it will have to terminate the devolution settlement it has so carefully crafted since before 1997. There is no way for Westminster to avoid negotiating with Edinburgh, Cardiff and Belfast in addition to Brussels, and there is no way for the UK as a whole to survive this process intact.

The integration of the devolved nations within the UK’s constitutional framework means that their consent needs to be sought. The 62% of voters in Scotland, and the 55.8% in Northern Ireland, who voted to remain EU members have turned their nations into veto powers. If either declines, the UK as a whole cannot proceed with Brexit negotiations in any constitutionally plausible way.

The United Kingdom is no longer a centralised state, if it ever was. The devolution arrangements have changed the UK’s constitutional settlement. The old Westminster axis of power has become diffuse through power-sharing agreements with Edinburgh, Cardiff, and Belfast. People who voted Leave may ‘want their country back’, but their country has transformed over the last twenty years.

Under the current arrangements it would be perfectly possible for the family of four nations, acting collectively, to withdraw from the European Union. However, in the absence of unanimity and with awareness of a very delicate situation in Scotland and Northern Ireland, the next Prime Minister and the Westminster Parliament should not divert all political resources to make this purely advisory referendum legally binding. They must channel all resources to keep the Kingdom whole.

Jo Eric Khushal Murkens is an Associate Professor at the Department of Law of the London School of Economics and Political Science (LSE).

(Suggested citation: J. Murkens, ‘Brexit: The Devolution Dimension’, U.K. Const. L. Blog (28th Jun 2016) (available at https://ukconstitutionallaw.org/))

This piece was originally published on the UK Constitutional Law Association website and is republished here with kind permission.

England’s Difficulty; Scotland’s Opportunity

Aidan O’Neill QC (Scot)

The result of Brexit referendum has revealed certain difficult truths about our nation.    England is an unhappy country.  The vote shows that the English are politically riven in terms of class, educational level, age, and (non-) metropolitan status.  It has revealed what was for so long obvious; that London is not in, or of, England.  It is an international(ist) city- state whose politics and economy and outlook are wholly different from the nation whose capital it nominally is.   And Scotland is another country; they do things differently there.

One thing is clear, however:  the result of the referendum has to be respected and acted upon by all our politicians.    That is what living in a democracy means.    So let us end this talk of a second Brexit referendum, or these calls on our MPs to refuse to implement the will of the people on the Brechtian grounds (in his poem Die Lösung) that “the people has forfeited the confidence of the government”.

Brecht’s poem concludes “ would it not be easier in that case for the government to dissolve the people and elect another?”.     But it seems to me that the result of the Brexit referendum has done exactly that.     It has revealed that there is not one demos, one people, within the United Kingdom.  There are instead peoples, demoi.  The British people has been dissolved.

The referendum has revealed radically different visions about our European future and place in the world between Scotland (and Northern Ireland) on the one hand, and England and Wales (excluding London) on the other.   Respecting democracy on this basis means respecting the decision of the people of England and Wales no longer to be citizens of a member State of the European Union.   Equally, however, respect for democracy means honouring the expressed wish of the people of Scotland (and Northern Ireland) to remain as full participant citizens in the supranational polity that is the EU.

So rather than arguing over when and how Article 50 TEU might be activated and by whom, or whether the two year clock ticking for exit can be stopped once started, we need as responsible citizens in a democracy to face up in good faith to what many of us regard as an appalling result, and coalesce around pressing for the quickest possible conclusion of the least worst option which still respects the actual referendum result.

The Brexit referendum has given no mandate or guidance as to what our future relationship might be with Europe.  The best and cleanest way to respect the referendum result (both in the fact that a majority voted to leave the EU but that a large minority voted for no change) would be to seek the minimum possible change compatible with the UK no longer being a Member State.  This minimal change means, in my view, joining Norway, Iceland and Liechtenstein in the European Economic Area (EEA).   The EEA Agreement was concluded in 1993 and looks remarkably like the Treaty of Rome prior to its amendment by the 1992 Maastricht Treaty, which first brought Tory Euro-scepticism to the fore.  Article 1 EEA states

  1. The aim of this Agreement of association is to promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area, hereinafter referred to as the EEA.
  2. In order to attain the objectives set out in paragraph 1, the association shall entail, in accordance with the provisions of this Agreement :

(a) the free movement of goods;

(b) the free movement of persons;

(c) the free movement of services;

(d) the free movement of capital;

(e) the setting up of a system ensuring that competition is not distorted and that the rules thereon are equally respected; as well as

(f) closer cooperation in other fields, such as research and development, the environment, education and social policy.

The case law of the Court of Justice on those provisions of the EU Treaties and secondary EU legislation which are “identical in substance to corresponding rules” of the EEA Agreement are binding, but only up until the date of the signature of the original EEA Agreement: Article 6 EEA.   What this means is that the acquis communautaire of the Court of Justice prior to the development of EU citizenship rights binds, but that the CJEU has no general continuing jurisdiction in relation to the interpretation of the EEA Agreement.

The EEA States have their own institutions to police the EEA Agreement: instead of the Commission there is the EFTA Surveillance Authority; instead of the CJEU there is the EFTA Court; and there is no role for the European Parliament.   There is provision for inter-governmental co-operation with the EU in the form of the EEA Council (which consists of the members of the EU Council and members of the European Commission, and of one member of the Government of each of the EEA States) and the EEA Joint Committee (which consist of representatives of the Contracting Parties and which take decisions by agreement between the EU, on the one hand, and the EEA States “speaking with one voice” on the other”).

England’s current difficulty is that it has no leader, a fundamentally divided populace and no mandate as to what any future relationship might be sought from the EU.   Given that membership of the EEA guarantees free movement of workers and the self-employed it might be thought to go against the anti-migration sentiments which appeared to have fuelled much of the vote in favour Brexit south of the Border.

Scotland, however, has a First Minister who is undoubtedly in charge of her party, a population which was remarkably united in the referendum, and a clear mandate from the referendum to the effect that Scotland wants to stay in the EU.

In the next three months or so while the Tory party seeks a new leader and England goes into meltdown in trying to gauge what so ailed the country, Nicola Sturgeon has an opportunity now to forge strong positive links across Europe and among the big players within the EU institutions to push the idea that what has happened is not that the UK as a whole has voted to leave the EU but that England and Wales voted to secede from the Union (both British and European) leaving Scotland (possibly in confederation with Northern Ireland) as the faithful remnant ready and able to maintain their EU membership which needs only to be slightly re-jigged, but not fundamentally altered, to take account of England’s and Wales’ secessions.

Ultimately, if Scotland does persuade the rest of the EU round on this, and Nicola Sturgeon can negotiate a package in principle for Scotland (whether or not with Northern Ireland) being regarded as the continuing UK for EU law purposes, then she can present this package to the Scottish people to be voted on in the second Scottish Independence Referendum (the Scotland Act 1998 would have to be amended by Westminster to allow this to take place lawfully, rather than by UDI).    If she wins that referendum, Scotland gets a soft transition involving ending the British Union but maintaining the European Union, while England is left to wrestle its nationalist demons unencumbered by its northern Celtic fringe of which it knew increasingly little and cared ever less.

Interestingly Article 121(a) EEA states that

The provisions of this Agreement shall not preclude cooperation :  (a) within the framework of the Nordic cooperation to the extent that such cooperation does not impair the good functioning of this Agreement.

The Helsinki Treaty of 1962 states in its preamble that “the Governments of Denmark, Finland, Iceland, Norway and Sweden, desir[e] to promote and strengthen the close ties existing between the Nordic peoples in matters of culture, and of legal and social philosophy, and to extend the scale of co-operation between the Nordic countries; [and] desir[e] to attain uniformity of regulation throughout the Nordic countries in as many respects as possible.”  Its terms were most recently updated at 1995 and now contain the following provisions, among others, on Nordic co-operation:

Article 1

The High Contracting Parties shall endeavour to maintain and develop further co-operation between the Nordic countries in the legal, cultural, social and  economic fields, as well as in those of transport and communications and environmental protection.  The High Contracting Parties should hold joint consultations on matters of common interest which are dealt with by European and other international organisations and conferences.

Legal Co-operation

Article 2

In the drafting of laws and regulations in any of the Nordic countries, citizens of all the other Nordic countries shall be treated equally with the citizens of the aforementioned country. This shall apply within all those areas falling within the jurisdiction of the Treaty of Co-operation.

Exceptions to the first paragraph may, however, be made if a requirement of citizenship is constitutionally stipulated, or is necessary because of other international obligations or is otherwise deemed necessary for particular reasons.

Article 3

The High Contracting Parties shall endeavour to facilitate the acquisition by citizens of one Nordic country of citizenship in another Nordic country.

Article 4

The High Contracting Parties shall continue their co-operation in the field of law with the aim of attaining the greatest possible uniformity in the field of private law.

Article 5

The High Contracting Parties should seek to establish uniform rules relating to criminal offences and the penalties for such offences.

With regard to criminal offences committed in one of the Nordic countries, it shall, as far as circumstances allow, be possible to investigate and prosecute the offence in another Nordic country.

Article 6

The High Contracting Parties shall seek to achieve a co-ordination of legislation in such areas, other than the aforementioned, as are considered appropriate.

Article 7

Each High Contracting Party should endeavour to ensure the implementation of regulations to allow decisions by a court of law or other public authority in another Nordic country to be executed also in the territory of the said Party.

If England and Wales were to join the EEA but Scotland (and possibly also Northern Ireland) were to remain within the EU, the Nordic co-operation agreement could also provide a useful template for a co-operation agreement to determine future relations between the now independent countries of the former British Isles (or the Anglo-Celtic Archipelago (ACA), as it might usefully henceforth be termed given the need for Ireland’s full participation within it).  On this model, the analogue to Norway within the ACA is England and Wales; Northern Ireland may be seen to be a parallel Iceland; Scotland would map on to Sweden, and the Republic of Ireland to Finland.

This then becomes a positive story from an EU perspective, showing that the Brexit vote result was not because there are fundamental problems with the EU, but because there are fundamental problems with England which may be summed up as “England has a problem with London, and London a problem with England”.   But the Brexit referendum results are respected, with England and Wales joining the EEA and Scotland and Northern Ireland staying within the EU.

Ultimately it could well be in England’s interest to have Scotland remain in the EU to argue by proxy its case and protect our common island interests from within the EU.    The fundamental change in relationship between Scotland and England – which might also  involve Scotland gaining a veto on any future free trade/investment treaties (“mixed agreements”) concluded between the EU and non-EU countries  such as the prospective new independent state of England and Wales- might be good for us all.

Conrad Russell once observed that the fundamental problem with the Treaty of Union was that England would brook no equal and Scotland no superior.   If Scotland stays in the EU then, like, Ireland it might begin to grow up and de-infantilise and lose its readiness to play the exploited victim.  And England will at last, guilt free, get to be England. The English will truly get their country back, whatever that might turn out to be.