A piece for the LSE's EUROPP Blog.
Given the dispute over the new President of the European Commission, and UKIP’s success in the European Parliament elections, the UK’s EU membership is likely to be a key issue in the campaign for the 2015 UK general election. Tim Oliver writes that while a great deal has been written on whether the UK will leave the EU, less attention has been paid to how a ‘Brexit’ might occur in practice. He assesses five ways in which the UK might leave the European Union, noting that even if the country were to give up its membership there would still be a number of unresolved questions as to the kind of UK-EU relationship which could emerge.
How Britain might withdraw from the EU is an often overlooked question in comparison to the broader topic of whether it will ever decide to do so. With the Conservative Party, Labour, the Liberal Democrats and UKIP all committed – in differing ways – to holding an in-out referendum at some point, it might be assumed that this is the way Britain will leave. But the referendum route is in fact one of five ways a ‘Brexit’ might happen.
Each of the five ways available varies in practicality. Some are little more than academic and legal exercises that stand little chance of survival in the real world. Nevertheless, they are worth thinking about as they provide an overview of what options are open to Britain and the EU. They raise questions about what ‘out’ means. They also shed light on where the UK-EU relationship could end up. We must not forget that a Brexit is a means to an end, not an end in itself. It is debatable whether or not a Brexit can deliver the end of settling the Europe question in British politics or the British question in European politics.
1. The big bang: a referendum supporting withdrawal triggers Article 50 TEU
The most widely anticipated route by which Britain could leave the EU is via a nation-wide referendum where the result supports withdrawal. This could happen in several ways. A government could implement a manifesto commitment to holding a referendum. How this happens will depend on the party in government. David Cameron has committed the Conservative Party to holding an in-out referendum after an attempted renegotiation of Britain’s membership.
It could also occur thanks to a treaty change in the EU or a significant transfer of powers. This would trigger the current 2011 European Act requiring a referendum in the event of such a change. This is also the situation for which the Lib Dems and Labour have promised to hold an in-out referendum. Finally, a referendum could be caused by the House of Commons voting through a private members bill requiring a referendum. Whatever causes a referendum, the campaign, vote and result will be a spectacular political moment – a ‘big bang’ – in the history of Britain and the EU. Whether or not it will settle the Europe question in British politics is another matter.
A result supporting withdrawal would likely lead HM Government to trigger Article 50 TEU. The British Prime Minister would submit to the European Council written notice of Britain’s intention to negotiate a withdrawal. Article 50 sets out how the EU is to handle the withdrawal of a member state. It sets a timeframe of two years for negotiations. The Commission would recommend a lead negotiator for the EU that is then approved by the Council. Negotiations would cover both the withdrawal of Britain, and the framework for a new post-withdrawal EU-UK relationship. Separate negotiations would also need to take place within the remaining EU to change it to reflect the withdrawal of Britain.
The final deal offered to Britain would be subject to the approval of the European Parliament followed by the European Council acting by qualified majority vote. It will therefore be a deal that has to suit the EU, not just the UK. The European Parliament, Council, or even British Government or Parliament could reject the deal. In such an event an extension to the negotiations may become necessary, but this can only be agreed upon with the unanimous agreement of Britain and the rest of the EU.
2. The big leap: a unilateral decision by a British government to withdraw
A British government could declare it intends to withdraw from the EU without seeking the approval of the British people through a referendum and without negotiating a withdrawal with the rest of the EU. The first step to achieving this would be a vote by the House of Commons to repeal the 1973 European Communities Act that took Britain into the then EEC. Under international law there is nothing – in theory – to stop Britain, or any other member state, unilaterally withdrawing from an organisation such as the EU. And under the uncodified British constitution, the sovereignty of parliament means the executive does not need to seek the approval of the British people through a referendum.
Even if the British government did secure approval through a referendum and the big bang scenario was then played out, Britain would not necessarily need to resort to Article 50 and negotiate with the EU because under international law it has the right to withdraw anyway. It was the existence of this right that led to objections to the introduction of Article 50 TEU during the 2001-2003 Convention on the Future of Europe. For supporters of Article 50 its existence provides a degree of order for what would be an unprecedented event. But Article 50 only compels the EU to seek a negotiation with the withdrawing member state. It cannot require Britain, or any withdrawing member state, to reciprocate.
This, however, is a largely academic exercise. Ignoring Article 50 would be a big leap into the unknown. A refusal to follow the procedures set down, or to leave with only a vote of the House of Commons and thus without a referendum, would produce considerable political, legal and economic uncertainty in both Britain and Europe. This option may then be plausible in theory, but reality dictates that a referendum would be necessary and that negotiations would need to take place to create ‘a proper treaty framework, regulating the time frame and details of the divorce.’
3. The big kick: the EU expels Britain
A unilateral decision by a British government to withdraw from the EU might seem difficult, but is less so than the third option of the EU expelling Britain. Should Britain’s behaviour and demands become so unacceptable to the EU then the other member states and EU institutions could try to find a way to kick Britain out. This is the least likely scenario because of the legal and political problems this would present to the EU. The EU’s treaties contain no provision for the expulsion of a member. Even suspension is difficult, the EU having available to it through Article 7(2) and (3) TEU only limited options to suspend certain membership rights of a member state. These steps are also intended to encourage the errant member state to correct its behaviour rather than as a first step towards banishing it.
Any attempt to expel Britain would require unanimous agreement by the rest of the EU, no easy feat in itself. It would lead not only to the British government seeking to annul such a decision, but private individuals, companies and organisations – from Britain, the rest of the EU and elsewhere – could also take legal action against the EU. Expulsion would also add to the animosity between Britain and the EU. Relations within the EU could also be strained, with some states fearing they may be next.
4. The big freeze: a passive expulsion from the EU
Rather than confronting Britain head on with a deliberate attempt to expel it, there is the possibility the EU may get rid of Britain through a passive expulsion. The same antagonistic behaviour by Britain that could provoke a big kick could instead lead – and in some cases already has led – to some in the EU reciprocating with cold indifference, further weakening relations. Just as confrontation with an unwanted and unhappy guest can be avoided by making them feel so uncomfortable that they leave of their own accord, so too might the rest of the EU feel it would be easier to make things so uncomfortable that Britain leaves the EU of its own accord.
By itself this ‘big freeze’ approach would not get rid of Britain. It would instead lead to Britain going down the route of a ‘big bang’ or ‘big leap’. Alternatively, instead of isolating and ignoring Britain, the rest of the EU may opt to discuss openly with Britain the possibility that it may be better for all concerned if it took the route of a ‘big leap’ or ‘big bang’. The problem here is that the UK has been isolated in the past and hung on.
5. The big divide: the rest of the EU leaves Britain behind
It may come to pass that the way Britain leaves the EU is not through a referendum, a unilateral decision to withdraw, or a direct or passive expulsion. Instead a Brexit may happen through a slower and gradual process of changes to the EU whereby Britain does not leave the EU, but the EU leaves Britain behind. Developments here will revolve around the evolution of the Eurozone. If these contribute further to the emergence of a two-speed or multispeed EU then Britain could find itself increasingly isolated and locked out of key decision making forums. As such Britain would find itself outside the EU thanks to moves by the rest of the EU to create new institutions from which Britain is excluded.
The British government has taken steps to try to prevent the emergence of any such inner-EU within a wider-EU. But David Cameron’s veto of the fiscal compact in December 2011 showed that if necessary the rest of the EU would go around Britain to set up arrangements separate to the EU and thus beyond Britain’s reach. This is not what the rest of the EU wanted to do. Some states, especially non-Eurozone members such as Sweden and Poland, remain fearful that they too will be cut out. But compared to Britain, they continue to display a commitment to the EU that is not often found in the UK.
A continued failure by the EU and Britain to reach agreement over the future direction of the EU may lead the rest of the EU – Eurozone and other non-Eurozone members – to conclude that further such developments will be necessary to create a divide that excludes Britain. It is, of course, debatable whether or not the rest of the EU could ever create an entirely new organisation that leaves Britain in a defunct, redundant outer tier. But the possibility remains one that we should not overlook given the difficulties of expulsion and the possibility Britain may not withdraw, and that even if the British electorate were to vote to remain in the EU, the country is likely to remain an awkward partner.
The Bigger Picture
Thinking about how a Brexit may happen reminds us of three important facts about UK-EU relations. First, there is no neat and simple way in which Britain could leave the EU. All five options present a myriad of legal, political and other difficulties for Britain and the EU. The withdrawal of a member state from the EU is an unprecedented event, and one which would be difficult not only for Britain but also for the EU.
Second, whether a referendum sanctions withdrawal or the EU somehow expels Britain or isolates it, neither Britain nor the EU will be able to completely ignore the other. Britain will remain a major European power, with Britain’s population expected to overtake Germany’s in the next 20-30 years. Similarly, unless there is some catastrophic failing of the Eurozone and disintegration of the Union, the EU will remain Europe’s predominant political organisation. Brussels will be the lodestar for much of European politics, economics and security (if not perhaps military security). It is where Britain will spend a large amount of its time looking towards.
This all begs the question then of what ‘out’ means. As noted at the start, a Brexit is a means to an end and not an end in itself. For each of the above scenarios, ‘out’ is a difficult concept. A referendum or unilateral declaration of withdrawal cannot compel the EU to give the UK what it wants beyond an official withdrawal. What ‘out’ the UK then secures will be shaped by what the rest of the EU and other powers such as the United States are willing to grant it in terms of new or recalibrated political and economic relations. Similarly, expulsion or exclusion would not solve the longer-term problem for the EU of how to deal with Britain.