On 19 June 2017, almost exactly a year after the UK referendum of 23 June 2016, in which a majority voted in favour of leaving the EU, negotiations on the UK's withdrawal began.
Who's in charge of the negotiations?
The Heads of State of the EU-27 Member States decided in December 2016 that the European Council (the EU's Heads of State) would maintain ultimate political control over the Brexit negotiations, and that the European Commission (the EU's executive arm) would conduct the negotiations.
The Commission appointed Michel Barnier as its chief negotiator. Throughout the negotiations, he will report to the Council (the EU's Member States) on a regular basis, and keep the European Parliament regularly informed.
A Belgian diplomat, Didier Seeuws, heads the Special Task Force on Brexit in the Council. His role is both to unify the positions of the Member States on the negotiations, and to ensure that the Commission keeps to the negotiating directives set by the Council.
The European Parliament plays no formal role in the negotiations, until the end. Then it plays a crucial role by deciding whether to give its consent to the withdrawal agreement. Without its consent, the agreement cannot be adopted ("concluded") by the EU. This gives the European Parliament political leverage over the final content of the agreement, and is why Michel Barnier will consult it closely throughout the negotiations. Former Belgian Prime Minister Guy Verhofstadt, a member of the liberal political group ALDE, has been appointed the European Parliament's "Brexit Point Person", informally representing the European Parliament on all Brexit-related matters.
The Treaties are silent on the role of MEPs from the Member State which is withdrawing during the withdrawal process. This has been interpreted as meaning that throughout the Brexit process UK MEPs are able to participate in all parliamentary proceedings and even give consent to the final withdrawal agreement (or not).
In the UK, negotiations will be led by the new Department for Exiting the EU, led by David Davis.
The procedure for withdrawing
The formal withdrawal procedure is enshrined in the EU Treaties, predominantly in Article 50 of the Treaty on European Union (TEU) and Article 218 of the Treaty on the Functioning of the European Union (TFEU).
The following are the key elements you need to understand.
The UK formally notified the European Council in writing of its decision to withdraw from the EU on 29 March 2017. This triggered the two-year timeframe within which the EU and the UK have to negotiate and conclude a withdrawal agreement. If an agreement cannot be reached within that time, the EU Treaties will automatically "cease to apply" to the UK, meaning the UK is out of the EU. This two-year timeframe can be extended if agreed to unanimously by the EU-27 Heads of State in the European Council.
Scope and objectives
The European Council adopted the guidelines for the Brexit negotiations on 29 April 2017. These set out the EU's overall scope and objectives for the negotiations. The European Council can amend its guidelines as the negotiations develop.
The European Commission submitted its recommendation and annex on the opening of the negotiations to the Council on 3 May. These add much more detail to the guidelines of the European Council.
On the basis of the Commission's recommendation, the Council adopted its negotiating directives on 22 May. The Council's directives are, in effect, the Commission's mandate for the negotiations, but they repeat in large part the Commission's recommendation. The Council can amend its directives as the negotiations develop.
The formal negotiations started on 19 June. The lead negotiators, Michel Barnier and David Davis, meet in formal sessions, or rounds, once every four weeks. The remainder of the time is used to prepare for each round, and for informal discussion between the two sides.
The negotiation documents produced by the EU can be found here. The negotiation documents produced by the UK can be found here.
Conclusion and ratification
The conclusion of the withdrawal agreement requires the consent of the European Parliament, by simple majority of voting MEPs.
Following the consent of the European Parliament, the Council concludes the withdrawal agreement on behalf of the EU by a so-called super-qualified majority vote. Article 238(3)b TFEU defines the super-qualified majority "as at least 72 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States". This means that effectively 20 out of the 27 Member States have to vote in support of the withdrawal agreement and that the total population of these 20 Member States can be no less than roughly 280 million people.
There is a risk, however, that some of the EU Member States will want to ratify the withdrawal agreement themselves, in addition to its conclusion by the Council. This could happen if a reasonable number consider that the agreement extends to areas which fall under national competence, rather than EU competence. (Such agreements are called "mixed" agreements.) Were this to happen, the agreement would have to be ratified by all Member States "in accordance with their respective constitutional requirements", which would take much longer.
The UK will also need to ratify the agreement. Under the Constitutional Reform and Governance Act 2010:
- Ministers must lay the withdrawal agreement before both Houses of Parliament for 21 sitting days prior to ratification.
- During this period, both Houses will have the opportunity to pass a resolution that the agreement should not be ratified. If neither does so, the Government can go ahead and ratify the treaty.
- If either the Commons or the Lords votes against ratification, the Government cannot immediately ratify the treaty, but must instead lay a statement giving the reasons why it wants to proceed with ratification.
- If the Commons has voted against ratification, laying this statement triggers a further 21 sitting day period before ratification, during which time the Commons may again vote against ratification—potentially blocking ratification indefinitely.
- If the House of Lords votes against ratification, but the House of Commons does not, then a ministerial statement must be laid before Parliament explaining why the treaty should nevertheless be ratified, but the additional 21 sitting day period is not triggered. The House of Lords does not, therefore, have the power to block ratification.
Status of the UK during the Brexit process
During the period following formal notification and until withdrawal, the UK remains a Member State of the EU with all rights and obligations entrusted to it by the Treaties. It is not, however, allowed to participate in the discussions or decisions of the European Council or Council on its withdrawal.. This aside, UK representatives in the Council and European Council will continue to take part in the regular institutional proceedings, including the adoption of EU legislative acts.