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Brexit – How to Leave the EU

By - - Employment Law

How does an EU Member actually leave? The answer is via Article 50 of The Treaty of the European Union (also known as The Lisbon Treaty).

Article 50

Article 50 says that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

The first thing to note is that the formal process of leaving the EU has yet to start. Technically, the result of the UK referendum is advisory only. The government could, in theory, choose to ignore it. However, we can be confident it won’t.

Secondly, David Cameron has stated this morning that he will stand down as Prime Minister probably within 3 months. It is unlikely that Article 50 will be triggered until a new Prime Minister is in post. This should be by the time of the Conservative Party Conference in October.

Once the new leader is appointed it is likely the government will serve the Article 50 notice and the process of negotiating the withdrawal agreement with the European council will begin.

Withdrawal Agreement

Under Article 50 the treaties of the European Union will cease to apply to the UK from the date of the withdrawal agreement. If the withdrawal agreement is not reached within 2 years of the Article 50 notice, the treaties automatically cease to apply to the UK unless all EU members agree to extend the negotiating period. The withdrawal agreement will cover the arrangements for withdrawal, including a framework for the UK’s future relationship with the Union. Should the UK seek to re-join the European Union, it would be subject to the same conditions as any other applicant country.

Unravelling EU Law

The process of unravelling EU law from UK following Brexit will be complicated.

It seems unlikely that the UK would repeal all EU law. Much of it would be retained. In addition, there would, following Brexit, be some difficulty in identifying the continuing status of EU law in the UK.

Questions as to the application of European Court case law and its new status in the UK will no doubt arise and have to be legislated for or else decided by the UK courts.

It is also possible that devolved Scotland, Wales and Northern Ireland governments will retain EU laws while England does not.

Free movement

So far as EU citizenship is concerned, this is a status that is dependent on national citizenship but it confers rights different from and additional to those of national citizenship. The right to free movement within the EU is the most significant. What happens to this right following Brexit will form part of the withdrawal agreement and it remains to be seen whether the UK, in order to stay within the European market, will have to continue to accept free movement of EU citizens.

The terms of the UK’s withdrawal will inform UK politics and vice versa for some time. These terms will also define the impact of withdrawal on our clients and, in particular, the movement of people, goods, capital and services across the EU.

For now

However, for now the UK remains a member of the EU and all our employment laws remain unchanged. If the earliest date that the Article 50 notice is served is October 2016, we are likely to be in the EU at least until October 2018.
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