Chapter 2: The right to withdraw from the EU
6.We asked our witnesses to assess the significance of Article 50’s incorporation into the EU Treaties, whether other means of withdrawal remained available to EU Member States, and whether a decision by a Member State to withdraw from the EU could be reversed.
The significance of Article 50 of the Treaty on European Union
7.Sir David Edward told us that, before Article 50 came into force, a right existed to withdraw from the EU under international law, provided that all Member States agreed.2 Professor Wyatt agreed, adding that it was “politically inconceivable” that “all the Member States but one could commit an unwilling Member State to participate in such a close economic arrangement.”3 He noted that the 1975 referendum on the UK’s continuing membership of the European Economic Community was based on the assumption that the UK was entitled to withdraw from it.45
8.The significance of Article 50 lay, therefore, not in establishing a right to withdraw, but rather in defining the procedure for doing so. Sir David described it as “essentially setting out the machinery that would not otherwise be there.”6 Professor Wyatt elaborated further: “The difficulty with the position before Article 50 was that the first thing that would happen in the event of, say, a referendum vote to leave the European project would be the building of an edifice to make that possible—the agreement of procedures and the rest of it. Article 50 solves that.”7
Is Article 50 the only means of withdrawing from the EU?
9.Within the wider debate on EU membership it has been suggested that the UK could withdraw from the EU without reference to Article 50, for example by repealing the European Communities Act 1972, which gives domestic effect to EU law. We asked our witnesses whether this would be possible. Both told us that Article 50 provided the only means of withdrawing from the EU consistent with the UK’s obligations under international law.8 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.9
Can a Member State’s decision to withdraw be reversed?
10.We asked our witnesses whether it was possible to reverse a decision to withdraw. Both agreed that a Member State could legally reverse a decision to withdraw from the EU at any point before the date on which the withdrawal agreement took effect. Once the withdrawal agreement had taken effect, however, withdrawal was final. Sir David told us: “It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government.”10 Professor Wyatt supported this view with the following legal analysis:
“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.”11
11.Professor Wyatt clarified that “a Member State remains a member of the European Union until the withdrawal agreement takes effect”, so would continue its membership on the same legal terms as before the decision to withdraw.12
12.Both witnesses drew a distinction, however, between the law and the politics of such a scenario. While the law was clear, “the politics of it would be completely different”, according to Professor Wyatt.13 Likewise, Sir David did not think that the politics “were as easy as saying, ‘The negotiations are over and we are back to where we started’”.14
13.We note in this context that the Conclusions of the 18–19 February 2016 European Council, at which the terms of the ‘New Settlement for the United Kingdom within the European Union’ were agreed, stated that “should the result of the referendum in the United Kingdom be for it to leave the European Union, the set of arrangements referred to [regarding the ‘New Settlement’] will cease to exist”.15 In other words, the outcome of the recent renegotiation of the UK’s membership terms will, in the event of a vote to leave the EU, fall the moment the result of the referendum is known.
Conclusions
14.If a Member State decides to withdraw from the EU, the process described in Article 50 is the only way of doing so consistent with EU and international law.
15.There is nothing in Article 50 formally to prevent a Member State from reversing its decision to withdraw in the course of the withdrawal negotiations. The political consequences of such a change of mind would, though, be substantial.
16.Withdrawal from the EU is final once the withdrawal agreement enters into force. Article 50 makes clear that if a State that has withdrawn from the EU seeks to rejoin, its request shall be subject to the same procedures as any other applicant State.
17.We note that the European Council has stated explicitly that the changes to the terms of the UK’s membership of the EU, agreed in February 2016, will automatically fall in the event of a vote to leave on 23 June.
5 The referendum question was: “Do you think the UK should stay in the European Community (Common Market)?”. BBC On This Day, ‘1975: UK embraces Europe in referendum’: http://news.bbc.co.uk/onthisday/hi/dates/stories/june/6/newsid_2499000/2499297.stm [accessed 21 April 2016]
15 European Council meeting (18 and 19 February 2016) Conclusions, 16 February 2016: http://data.consilium.europa.eu/doc/document/ST-1-2016-INIT/en/pdf [accessed 21 April 2016]