The effect of the UK General Election of 8 June 2017 on the Brexit negotiations

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The effects of the Referendum on the UK’s membership of the European Union on 23 June 2016 are rather like an earthquake, when a massive tremor is followed by a series of after-shocks until the ground eventually settles down.

Following the UK’s vote of 51.9% in favour of leaving the EU against 48.1% for remaining in the EU, a bitter power struggle at the top of the Conservative party ensued, with Teresa May emerging as the winner, and thus the new Prime Minister. For the next few months, the Conservative Government debated its EU plans internally, finally producing in January 2017 a so-called “hard Brexit” strategy whereby the UK would leave the EU single market and customs union, reject adherence to fundamental EU laws, and negotiate a new bilateral UK-EU trade treaty.

The UK formally sent a notice of withdrawal from the EU on 29 March 2017, starting off a two year period of negotiations ending on 29 March 2019, (unless that period is extended by unanimous agreement of the EU27 and the UK). To strengthen its negotiating power, the Conservative government launched a surprise general election which was seen by many to be a good tactical move to strengthen the Government’s hand by increasing its majority and to ensure that another UK election would not need to be called at around the conclusion of the Brexit negotiations. However, on 8 June 2017, the result delivered a fundamental change in the UK’s political landscape with the Conservative party losing its parliamentary majority, although it remains the largest political bloc in Parliament.

The result is a minority government or ‘hung parliament’ led by Mrs May, who is herself
generally thought unlikely to stay as Conservative leader and Prime Minister for long.
To be able to remain in government, the Conservatives brokered a working agreement
with the Democratic Unionist Party (DUP) to achieve an overall majority of two: so that
the opposition parties (Labour, Liberals, Scottish Nationalists and Greens) would not
together be able to outvote the Conservative government. But the UK constitutional rule
that only votes physically taken inside Parliament count means that to win a motion, the
Conservative-DUP group must ensure that all their members of Parliament are present.

A government with an overall majority of just two is therefore extremely vulnerable to
losing a vote in Parliament, either because MPs are absent through illness, or because
MPs vote against their own government. Brexit is particularly exposed to such “rebel
voting” as pro-EU Conservatives may vote against their party on matters of principle (or
abstain, which has the same result), as had already happened on several occasions since
the Referendum.

What does this mean for the Brexit negotiations?

One thing is generally accepted: UK voters rejected the Conservative government’s “hard
Brexit” strategy. Put another way, a Conservative government trying to negotiate a “hard
Brexit” would be defeated by the combined votes of Labour, Liberal, Scottish Nationalist,
Green and dissident Conservatives.

However, as every day passes of the two year Article 50 period for negotiations, the
“clock is ticking” and the UK must arrive at a new Brexit strategy that can either be
supported by the new Parliament elected on 8 June 2017, or after yet another general
election sometime in the next few months.

Another general election is likely to try to produce a majority in Parliament but that process would further cut down the two year negotiating period: the UK has already “lost” three months since 29 March 2017 through formulating its official strategy and holding a surprise general election. A further 2 months would be “lost” if, or when, another general election is held. Some political groupings (such as the Scottish Nationalists) have called for the suspension of the Brexit negotiations until a new, nationally agreed strategy is in place.

Four scenarios

Given the above deadlock, four scenarios for the future of the Brexit negotiations are
being contemplated:

1. Postponement of the negotiations
2. Suspension of the negotiations
3. Extending the two year period
4. Reversing the decision to leave the EU

As will be seen, none of these four scenarios are likely to work unless a radical change of
circumstances occurs.

Postponement

The opening session of EU-UK negotiations was scheduled for Monday 19 June, but
that date was set before the June general election profoundly altered the UK political
landscape. Can this be postponed? The answer is “Yes”. Whether the UK attends
negotiations is a decision only for the UK, so the Conservative Government is free to
postpone (or not attend) the 19 June 2017 meeting, but that will not stop the clock
ticking. Mrs May to date has said that she will not.

Suspension of the negotiations

As a variant of postponement, could the Article 50 period be “frozen” while the UK sorts
out its internal politics? The answer is most likely “No”. Such a measure would affect the
operation of Article 50 of the Treaty on European Union and would arguably require a
Treaty amendment, subject to any alternative interpretation the Court of Justice of the
European Union might give. It is conceivable that a dispute on whether the EU Council
or Commission could legitimately refuse to suspend the operation of Article 50 might
form the subject of a “Reference” to the CJEU for a ruling under Article 263 of the
Treaty on the Functioning of the European Union. Alternatively, the provisions of Article
218(11), which allow Member States to seek the “opinion” of the CJEU “as to whether
an agreement envisaged is compatible with the Treaties” might be brought into play:
however this provision is more usually invoked in relation to trade treaties of the EU with third countries and so may not be provide a solution.

In any case, for obvious political reasons, it is highly unlikely that the UK Government
would contemplate using any such procedures, as it would involve submitting to the EU
courts. Another Member State could instead bring an action under Article 263, but EU
case law is firm that time limits set by an EU treaty can only be changed through a treaty
amendment, so it is unlikely that any attempt to have the two year period set by the
Treaty on European Union “suspended” would be successful.

Extension of the two year period

Article 50(3) of the EU Treaty allows the two year period for withdrawal to be extended
if “the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. Such an extension would only be granted following a request from the UK Government and is highly unlikely to be granted except on the basis of the continued application of EU rules. As paragraph 28 of the European Parliament’s resolution notes “transitional arrangements ensuring legal certainty and continuity can only be agreed between the European Union and the United Kingdom if they contain the right balance of rights and obligations for both parties and preserve the integrity of the European Union’s legal order, with the Court of Justice of the European Union responsible for settling any legal challenges; … any such arrangements must also be strictly limited both in time – not exceeding three years”. This is a good indication the
terms that the EU Council would impose for any post March 2019 transitional period.

Breturn?

The final possibility would be for the UK to change its mind and seek continued
membership of the EU. This could occur if a future UK general election leads to a pro-EU
Government with a mandate to remain in the EU, or if the Government cannot get its
Brexit approval through Parliament and is required to have a second referendum which
reversed the earlier position.

Politically, many consider that it would be unthinkable that the EU27 would insist that
the UK should leave the EU after a reversal of the 2016 Referendum through the victory
of a pro-EU British government. However, the conditions for “re-entry” or “Breturn” are
complex. New Member States of the EU are permitted few opt outs, certainly far fewer
than those negotiated by the UK in its 44 year period of EU membership. Conditions of
re-entry may be difficult to accept politically and would need to be backed by convincing
assurances to the EU27 that the decision to return to EU membership is stable and
reliable. As the European Parliament’s Brexit resolution of 5 April 2017 states: “a
revocation of notification needs to be subject to conditions set by all EU-27, so that it
cannot be used as a procedural device or abused in an attempt to improve on the current
terms of the United Kingdom’s membership” (recital L to the Resolution).

Philippe Ruttley

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