After Brexit, Is It Time to Review Article 50’s Withdrawal Process?

From disaster springs opportunity and this particular disaster provides an opportunity to look at the Article 50 process and ask ourselves: in the aftermath of Brexit, can and should Europe implement a more structured withdrawal process? None of us desire another member to leave our family of nations, but if they do, in the interests of stability and peace, what steps can and should be taken to ensure a non-Brexit-like departure for said Member State?

For Stability and Peace

Is such a change even necessary? With the decision of the ECJ affirming that Member States can revoke Article 50 just as unilaterally as they invoke it, fears have arisen that this process could be abused by Member States seeking better membership circumstances or conditions. Is the solution therefore to simply not negotiate with a departing member, thus forcing them into a disastrous no-deal exit and eliminating all incentive to abuse the Article 50 process? This eliminates the possibility of any amicable split in future, and it is impossible to say there will never be a situation in which both a departing Member State and the Union itself will both be better off with a different, less entwined, relationship.

It should not be left until the last minute to prepare for such an event, and as the utter incompetence of the UK government in these negotiations has shown, it cannot be left up to the departing state to ensure a stable and peaceful transition. The Union must be ready for possible exits in the future, under amicable or hostile circumstances.

The Cascading Integration Negotiation: A Step-by-Step Process

The simplest way to streamline and organise the secession process would be for it to be reorganised into a step-by-step process. Before negotiations even begin, the EU should lay out the possible future partnerships for the departing state, much like it did with the slide showing possible relationships that was shown to EU leaders during Brexit negotiations.

The EU and the departing state’s negotiating teams would proceed through the list in descending magnitude of integration, starting with EFTA and EEA membership, onto Single Market and Customs Union membership, all the way down to a clean break.

There are multiple advantages to such a framework. Any possible attempt by departing Member States to cherry pick the good and sidestep the sub-optimal aspects of Union membership in a bespoke deal would be completely nullified. There would be a clean process for the entirety of negotiations. A broad agreement on the future relationship between the two parties could be achieved within months of a vote to leave, depending on the speed with which the parties can decide their preferred option, leaving ample time for discussion of details and ratification of any agreement.

By following such a framework, a broad agreement that both sides find palatable can be reached quickly and decisively. Brexit is clear evidence of the need for such a process. From the beginning, the Brexit negotiations were hectic and muddled. It was not agreed what order the negotiations would take; there were negotiations about negotiations on future negotiations. So much valuable time was wasted not only through British governmental incompetence, which surely was an essential component of the debacle, but also because there was no agreed structure. Ordering negotiations in a cascading scale of integration provides a clarity, efficiency, and speed that have been sorely lacking through the current Brexit catastrope.

The Prior Legislature Approval Test

What commentators from both sides of the political divide, from across Europe, and from either side of the Brexit debate can agree on, is that former Prime Minister Theresa May’s foremost cardinal negotiation sin was not going to the EU with a negotiation plan that could get parliamentary approval.  In fact, so ardent was Theresa May in her dismissal of parliamentary assent to her actions that her government had to be taken to court to assure Parliament would even have a say on triggering Article 50, and her government was forced to allow a parliamentary vote on her deal as a concession.

A Prior Legislature Approval test provides a simple solution to ensure such a situation could never occur again. The EU agrees to never begin negotiating a withdrawal or future partnership agreement until a withdrawing Member State’s government’s negotiating position receives the assent of the Member State’s legislature. By insisting on such prior approval, the EU can assure it will never again be in the position of reaching agreements with rogue governments that cannot pass the agreement in their legislature.

Such a test will likely avoid the need for constant extensions: it will ensure stability of the process, and will also maintain the EU’s dedication to democracy by ensuring that all democratic representatives of the departing member state, not just those of the government, have a voice in crafting the future relationship with the EU. This approach, by including all parties of the departing Member State in the process, also reduces the risk of the departing state reneging on the deal in future after an election and change of power.

Disputed Citizen’s Assembly

The recent tragic murder of journalist Lyra McKee in Northern Ireland, the deployment of armed Republican Dissident volunteers on the streets of Derry by the New IRA, and that same group’s bombing campaign of the UK, all throw into stark light the likelihood of a return to violence in Northern Ireland. Blood has already been spilled in a potential conflict that threatens both the UK and the Republic of Ireland. If another Member State with contentious or disputed territorial issues were to leave, while none of these issues are likely to result in bloodshed like in the instance of Northern Ireland, similar if less extreme circumstances could arise.

For example, were Italy to depart from the EU under a nationalist government, with the population of Austrian decent in Süd Tirol voting to remain in the EU, the independence or re-unification campaign in the region could cause headaches for negotiators. Perhaps the biggest risk would be if a Member State were to withdraw from the EU on a nationalist or revanchist platform, claiming territory of former fellow Member States.

These scenarios are, admittedly, unlikely to cause much more than minor negotiable disputes at the present moment. However, if the EU were to expand into the Balkans or Caucasus and then one of the new Members were to withdraw, more serious issues could arise. As the Italo-Austrian example of Süd Tirol shows, even supposedly “settled” territorial issues can continue to cause trouble down the road.

To avoid this, the EU could integrate into the Article 50 and future departure process the requirement for local people in disputed regions to be actively involved in decision-making on their future. Critics of this idea may argue that this could lead to a small minority of people in one particular region having a disproportionate say in the future of their entire country. However, as is the case with those in Northern Ireland now, those resident in areas of potential conflict bear a far higher price for the decision to depart from the EU than those in the rest of the country, and their views are therefore of far more importance.

The Secessionist Threat: Brexit Round Two?

Secessionism is not popular with the EU bureaucracy, and arguably rightly so. Our Union is about bringing the peoples of Europe together, not driving them apart. This dedication to unity becomes difficult however, in the scenario of a Member State choosing to leave the Union, while a decidedly European majority in a potentially secessionist region opts to remain. One does not need to look hard to see the obvious example in the case of Brexit.

As the results of the 2016 referendum, and the 2019 EU parliamentary elections amply demonstrate that Scotland, and to a lesser but clear extent Northern Ireland, both seek to remain in the EU and are being taken out of our Union against their population’s will. In such circumstances, with the separatist movement in one and the unification movement in the other so adamant in their desire to remain in the EU, the standard European opposition to needless secession becomes untenable.

In these circumstances, should the EU’s general opposition to separatism continue? Were France to depart the EU with Corsica and Brittany seeking to remain, should other European states oppose their right to remain through separatism? While this may be a topic too large and divisive to address here, it is clear that the EU must consider the possible circumstances around, and benefits of, allowing or even encouraging local secession of regions from departing Member States into the union; and to integrate whatever policy it decides on into departure negotiation policy.

Those who do not learn from history…

Brexit is a tragedy, primarily for the British people but also for the dream of a united Europe. Yet it is also a chance to learn, and to prepare. By ensuring prior legislative approval for one of a range of step by step choices on a future relationship, by ensuring the voices of all in the departing state are heard, by refusing to abandon those who wish to remain European, the EU will be far better suited for any future departures. One thing the Union was meant to be built on is lessons from the past, with a goal of ensuring peace and prosperity for all Europeans. Should we fail to learn from Brexit, our Union will be failing in both regards.