How the UK Could Stay in the EU

The Referendum Result Must be Seen to be Respected The option of Parliament simply ignoring the referendum result should be rejected. This would simply make the obvious problem of disconnection between citizens and Parliament, starkly revealed by the referendum result, even worse. It is likely that a lot of MPs and Peers who supported Remain would take this view. If the UK is to Remain in spite of the first referendum result, it will have to be a result of a further vote by the British people. It is therefore necessary to consider how this scenario could be brought about. Parliament (which before the referendum had a majority in both houses for Remain) should therefore not say “no” to Leave, it should instead say “yes, if” and then set relevant conditions.

The Process for Leaving The formal process for leaving the EU involves Article 50 of the Treaty for the Functioning of the European Union (TFEU). This says that: a)“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements” [my emphasis] b)A Member State which decides to withdraw shall notify the European Council of its decision c)The Treaties shall cease to apply to the State in question from the entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2. So the first key question is: what are the relevant constitutional requirements for the UK? It seems obvious that they would have to involve the consent of Parliament.

Other Member States Pressing UK Over the weekend of 25/26 June, it was widely reported in the media other Member States consider that the Prime Minister’s reporting the referendum result to the Council would constitute formal notification. On the other hand, Cameron has said that it will be for his successor to make this notification, after he or she takes office, most likely early in September. There appears to be no justification in Article 50 for the Member States to claim that a simple report of the referendum result to the European Council constitutes formal notification.

Parliament Must Assert its Sovereignty The first essential step is for Parliament to assert its sovereign right to make the decision on notification. This would presumably need to take the form of a Bill. Geoffrey Robertson QC says so in this Independent article (although he mistakenly calls for Parliament to vote the Bill down)Independent article Bills can be amended, in this case with the aim of giving negotiating instructions to the new Prime Minister and Government on Parliament’s expectations for a withdrawal agreement. These could consist of at least: A clear expression Parliament’s intent that the UK should at least remain in the single market (the “Norway option”) A requirement for special arrangements for Northern Ireland. An additional option might be some special arrangements for Scotland, but it seems likely that any plausible arrangements in the context of Leave would not satisfy the majority of Scottish voters and would therefore be unlikely to help secure a No vote in a second Scottish referendum on independence.

Justification of Conditions The single market requirement could be justified on the following grounds 48% of voters opted for Remain, and their position needs to be considered. The single market option represents the best synthesis of the Leave and Remain positions, giving primacy to Leave but ensuring a continuing close relationship with the EU and Member States The Leave campaign was not clear on what arrangements it favoured in the event of withdrawal, and offered at least three options, including membership of the single market (Farage said that in the event of a close vote for Remain another referendum would be appropriate, and Johnson floated the idea of two referenda: these are more polemical points than substantive ones) Jeremy Hunt has written that Britain must remain in the single market, but gives no clear means to achieve this.written Special arrangements for Northern Ireland could be justified in view of the importance of EU membership (of both the UK the Republic) to the peace settlement, and given the fact that the Northern Ireland electors voted to remain.

Scotland? It would be useful to time decisions in this process to produce a final result in advance of a second referendum on Scottish independence, since this is much more likely to result a No vote if the UK stays in the EU. Lord Falconer is working with constitutional lawyers to see what special arrangements might be made for Scotland and Northern Ireland Lord Falconer

Parliament Should Timetable Further Debate Parliament should require the Government to report on progress of negotiations, some fixed period (a year?) before the entry into force of withdrawal. If the negotiating objectives set by Parliament are not achieved, then Parliament should consider what further steps to take, including the option of calling another referendum. This question might be whether to accept the available deal with the EU on leaving. Around 4 million people have already petitioned for a second votepetitioned

What if the EU Agrees on Single Market? If the other Member States agree with single market membership, then the democratic choice would be to allow UK withdrawal on that basis (since this would represent a fair outcome from the first referendum). But in fact this is quite unlikely, and Member States might be encouraged by a Parliamentary decision to be even more resistant to single market membership.

Withdrawal of Notification The second key question is: could notice of withdrawal be withdrawn by the UK before any Article 50 agreement is reached or the two year period expires, and if so could this be done unilaterally by the UK or would it require the consent of other Member States? Since Article 50 has never been used before, this is far from clear. But since it does not preclude this, the most likely answer seems to be yes, and the UK could do this without permission from other MS.

Do the Preparation NOW! Work on the details of how this could be achieved – particularly in respect of the Parliamentary process – needs to begin NOW. The dysfunctional state of both major UK Parties is no excuse for inaction.

Text of Article 50 of the TFEU Text of Article 50: TFEU (Our underlining) 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. 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 referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 4. For the purposes of paragraphs 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. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union. 5. 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.