18.The decision to withdraw is taken by a Member State “in accordance with its own constitutional requirements”. Once the national decision has been taken, the Member State concerned is under an obligation to notify the European Council. Article 50 is silent on the timing of any such notification.
19.Under Article 50 the parties to the negotiation would be the European Union and the withdrawing Member State. As the other party to the negotiations, the UK would be treated as a non-EU State for the purpose of Article 50. It would not therefore participate in discussions concerning the withdrawal negotiations in the European Council or the Council.
20.Professor Wyatt gave the following overview of the negotiation process under Article 50:
“Under guidelines from the European Council, the Council applies the ordinary rules and sets a negotiating mandate for the Commission. The Commission will negotiate the agreement on the EU side. We have guidelines from the European Council and we have the negotiating mandate from the Council. The Council can nominate a head negotiator if it wishes, or the head of a team of negotiators. The Council can nominate a special committee that will work in conjunction with the Commission.”
21.At the end of the negotiations the European Parliament gives its consent to the draft withdrawal agreement, after which it is signed and then concluded by the Council. If the agreement is deemed to be ‘mixed’ (where Member State as well as EU competences are engaged), it will have to be ratified by the Member States as well. Professor Wyatt thought the agreement was likely to be mixed.
22.In terms of voting procedures, the European Council agrees the guidelines by unanimity. The Council agrees the negotiation mandate, in the form of negotiation directives to the Commission, by qualified majority voting (QMV). Once the negotiations have concluded the European Parliament gives its consent to the draft withdrawal agreement by a majority of votes cast (our witnesses confirmed that MEPs from the withdrawing Member State would be entitled to vote). The Council will then agree the signature and conclusion of the withdrawal agreement by QMV, or by consensus if it is a mixed agreement.
23.We asked our witnesses to gauge the influence which each of the EU institutions would exercise over the negotiations. Both thought that the Member States would exercise the greatest influence, despite the conduct of the negotiations being the responsibility of the Commission. Sir David said: “I would envisage that, formally speaking, the Commission will do the negotiations, but in the way things work I strongly suspect that the Council’s internal services will also be closely involved right the way through, as well as the other Member States.” Professor Wyatt said that the Member States “would be in the driving seat” and would “call the important shots”. He provided a helpful insight into how the Member States would exercise their influence through the Council:
“The European Council is not going to be hands-on all the time. Who will be hands-on all the time will be the Committee of National Representatives, which is overlooking the Commission negotiations. The normal committee is the Trade Policy Committee, which I think meets once a month, but its deputies meet every week … Changing of the negotiation mandate is possible and could, and would, happen.”
24.Both witnesses agreed that the European Parliament’s power to refuse to give consent to the draft withdrawal agreement also gave it considerable influence. The European Parliament participates in international agreements through an inter-institutional agreement with the Commission. Professor Wyatt told us that this required the Commission “to take due account of Parliament’s comments throughout the negotiations”, and to “explain whether and how Parliament’s comments were incorporated in the texts under negotiation and if not why.” He concluded:
“The fact that the EP has a power of veto gives the Commission and the Council/Member States which stand behind the Commission every incentive to take the EP’s comments seriously. How will it exercise that influence? As regards the withdrawal agreement, MEPs will no doubt seek to protect the interests and vested rights of Union Citizens living in the UK. And one would hope that UK MEPs would have the same concern for UK citizens resident in other Member States.”
25.In Professor Wyatt’s view the over-arching function of a withdrawal agreement would be to bridge the gap between the old EU regime and the new future relationship. The scope of the withdrawal agreement would only become clear once the nature of the withdrawing Member State’s new relationship with the EU emerged.
26.One of the most complex aspects of the negotiations would be deciding which rights would qualify as ‘acquired rights’, and putting in place transitional provisions for individuals and companies whose rights might be phased out over time. Professor Wyatt described this issue as follows:
“It is estimated that 2 million Brits live in other EU countries … Take elderly people who have lived for 10 years in Spain. After five years, they acquired a right of permanent residence as citizens of the Union and that includes access to the Spanish healthcare system. If we leave, what do we do about vested rights? Do we recognise rights to permanent residents that have arisen? What transitional rights do we give somebody who has been working for four years in the UK and has children at school and so forth? Let us not forget that for every example in the UK there is an example of a UK citizen elsewhere. We would want to tidy that up. My guess is that the inclination of Government and Parliament would be to be generous as regards those who had already made their lives in the UK, knowing that it would be likely to be reciprocated.”
27.Both witnesses thought that addressing these issues would be challenging. If the new relationship involved restrictions on the free movement of people, detailed arrangements would be necessary governing the rights of EU citizens resident in the UK and of UK citizens resident in the EU acquired prior to the UK’s withdrawal. The arrangements would need to cover residence rights, rights to take up employment or self-employment, and rights to health care and social security. There would also have to be an agreement on the dates from which acquired rights would be recognised, and transitional arrangements for those not qualifying for acquired rights. On the other hand, if the new relationship preserved the free movement of persons, acquired rights could be maintained by a simple continuity clause.
30.One of the most important aspects of the withdrawal negotiations would be determining the acquired rights of the two million or so UK citizens living in other Member States, and equally of EU citizens living in the UK. This would be a complex and daunting task.
16 Article 50(1)
17 Article 50(2)
18 Article 50(2)
19 The European Council consists of the Heads of State or Government of the EU Member States and sets the EU’s overall political direction and priorities. It has no legislative power.
20 The Council of the EU consists of ministers from the EU Member States. Together with the European Parliament it negotiates and adopts EU legislation.
22 Article 50(2)
23 Member State ratification can take several years, depending on domestic ratification procedures. As a consequence, EU agreement can be provisionally applied pending ratification by Member States. ( (Prof Wyatt))
25 Article 15(3)
26 Article 218(8)
27 (Sir David Edward); supplementary written evidence from Prof Derrick Wyatt QC ()
30 Supplementary written evidence from Prof Derrick Wyatt QC ()
31 Supplementary written evidence from Prof Derrick Wyatt QC ()
32 Supplementary written evidence from Prof Derrick Wyatt QC ()
33 There is no single definition of acquired rights under international law; broadly, they are rights vested in individuals or companies which may withstand changes in the sovereignty or laws of a State. Acquired rights under EU law are often used to refer to EU citizenship rights, for example the right to permanent residence in another Member State.
35 Supplementary written evidence from Prof Derrick Wyatt QC ()
36 Supplementary written evidence from Prof Derrick Wyatt QC ()