58.We asked our witnesses to confirm that the UK would still be able to participate in EU policies and in the EU institutions and agencies pending the entry into force of the withdrawal agreement. Both confirmed that it would as a matter of law, except in decisions concerning its own withdrawal. The UK would continue to be bound by new EU legislation adopted after its decision to withdraw but before the withdrawal agreement entered into force.
59.As a matter of practice, however, both thought the UK’s credibility as a participant in EU decisions would be severely undermined. Professor Wyatt, for example, saw the following difficulties arising:
“The UK would be voting on future internal EU legislation which would only affect the UK as an outside trading partner. This could lead to the UK’s role being questioned as inappropriate. Continued participation in all aspects of EU activities might not be conducive to good political relations with other Member States and the EU institutions, and therefore not conducive to negotiating a future trading agreement which would meet UK requirements … A policy of selective disengagement from certain areas of activity might take place.”
60.Nowhere would these difficulties be more evident than in the UK’s assumption of the presidency of the EU in the second half of 2017. Sir David said:
“What is the interest of the United Kingdom, particularly as President of the Council, in discussing the details of a Directive that will not apply if we withdraw?”
61.Sir David added that the Article 50 provision that “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” was “a rather vague provision that might mean, ‘You get out of here; this does not concern you’.”
62.Professor Wyatt set out similar concerns, arguing that “there would be some air of unreality in the UK presiding over meetings most of the work of which would involve future action.” Input from the UK on forward planning by the EU “would be likely to lack credibility in circumstances where the UK was shortly to leave the EU and would no doubt be preoccupied with its negotiations with the EU for a future trading relationship. The rest of the EU would be unlikely to share the UK’s perception of the priority to be accorded to its future trading agreement.”
63.While the UK would remain a full member of the EU over the course of the withdrawal negotiations, its credibility as a member would be severely undermined. A policy of selective disengagement from some areas of EU policy might be necessary.
64.The UK is scheduled to hold the presidency of the Council in the second half of 2017, but in the event of a vote to withdraw it would be disqualified, by virtue of Article 50, from chairing any Council meetings on the withdrawal negotiations—meetings that would no doubt form a significant part of the Council’s activities. Were the electorate to vote to withdraw from the EU, the Government should give immediate consideration to suggesting alternative arrangements for its presidency.
69 Supplementary written evidence from Prof Derrick Wyatt QC ()
70 The presidency of the Council rotates among the EU Member States every six months. During this six-month period, the presidency chairs meetings at every level in the Council, helping to ensure the continuity of the EU’s work in the Council.
73 Supplementary written evidence from Prof Derrick Wyatt QC ()