UK Parliament approves notification to EU – and Scotland, facing “brick wall of intransigence,” announces another independence referendum

On Monday, almost nine months after British voters decided by a 52-48 margin in last June’s referendum to leave the European Union, the Parliament completed its consideration of a bill authorizing Prime Minister Theresa May to inform the European Council, in accord with Article 50 of the Treaty on European Union, of the United Kingdom’s intention to withdraw from the EU. She has said she will do that by the end of March.

The government originally planned to notify the EU of its intention to withdraw simply by making use of its “prerogative powers.” But several individuals filed claims before the High Court of Justice challenging the government’s use of those powers for that purpose. They claimed that because the UK’s exit would cause the European Communities Act 1972 to cease to apply, thereby removing rights citizens enjoy under EU law, and because the government can’t use its “prerogative powers” to change domestic law, it was obliged to obtain the approval of Parliament for its notification.

In November, the High Court of Justice ruled in favor of the claimants. The government appealed to the UK Supreme Court and in January that court affirmed the High Court’s ruling by an 8-3 majority and ruled the notification must be authorized by an Act of Parliament.

The government then submitted a short bill authorizing the prime minister to notify the EU. Considered first in the House of Commons, the bill was adopted without amendment by an overwhelming vote – 494 to 122 in the Third Reading on February 8. All but one of the 321 Conservatives as well as more than 160 Labour M.P.s and ten Unionists from Northern Ireland voted for the bill. M.P.s representing the Scottish Nationalists, Liberal Democrats, Welsh Nationalists, Northern Irish Social Democrats and several others opposed it.

But it was a different story in the House of Lords, where there are only 252 Conservatives among the more than 800 peers. On March 1, the Lords voted by 358 to 256 to amend the bill to require the government to bring forward legislation within three months of the notification to ensure that citizens of another EU member state or a country in the European Economic Area and their families who are legally resident in the UK continue to be treated in the same way with regard to their EU-derived rights. 

And on March 7, the Lords voted by 366 to 268 to require the prime minister to obtain the approval of both Houses of Parliament before concluding an agreement on the terms of the UK’s withdrawal from the EU. It also required the prior approval of both Houses of Parliament of an agreement on the future relationship of the UK with the EU. As with the earlier amendment, it was supported by a handful of Conservatives, most of the cross-bench – i.e., independent – peers, and all of the Labour and Liberal Democrat peers.

With the two Houses of Parliament having passed different versions of the bill, the amended bill returned to the House of Commons. On Monday, that house considered and rejected the Lords’ amendments and returned the original bill to the House of Lords, which, notwithstanding its earlier amendments, approved the bill in its original form, thereby completing the process of authorizing the prime minister to notify the EU of the UK’s intention to withdraw.

As that was happening in London, in Edinburgh Scotland’s First Minister, Nicola Sturgeon, announced she will seek the approval of the Scottish Parliament next week for another independence referendum – in a September 2014 referendum, 55 per cent of Scottish voters rejected independence – to take place between the autumn of 2018 and spring of 2019.

Last June, 62 per cent of Scottish voters supported the Remain option and the Scottish government has made it clear ever since that it wants to remain in the EU’s Single Market, an option the prime minister has ruled out. In her sharply-worded announcement, Sturgeon said, “the UK government has not moved even an inch in pursuit of compromise and agreement.  Our efforts at compromise have been met with a brick wall of intransigence.”

Once the UK notifies the EU of its intention to withdraw, the EU will, in the light of guidelines provided by the European Council, negotiate and perhaps conclude an agreement with the UK that sets out the arrangements for its withdrawal and takes account of the framework for its future relationship with the EU. On April 6, the leaders of the EU 27 will meet and formally agree on the guidelines for the negotiation.

The negotiation will be led on the EU side by Michel Barnier, who was appointed chief negotiator by Commission President Jean-Claude Juncker, a designation the European Council endorsed in December. Barnier has previously served as a minister, secretary of state for European Affairs and Foreign Minister in several French governments as well as a member of the European Parliament and for two terms as a European Commissioner.

It is much too early to hazard a guess about the outcome of the negotiations. But two things are already apparent – first, that Article 50 gives the EU 27 a large advantage in the negotiation and, second, that the UK is unlikely to get an agreement along the lines sketched out by Prime Minister May in her Lancaster House address in late January.

The UK’s notification will start a two-year clock, at the end of which the EU treaties will cease to apply to it unless a withdrawal agreement has been negotiated and approved or the European Council unanimously agrees to extend the two-year period. The ticking clock means the EU can insist that the UK accept its terms and let pressure on the UK government mount as the clock runs down and British firms become increasingly fearful of a “cliff-edge” hard Brexit.

In addition, the EU’s hand will be strengthened by the fact that any agreement must have the consent of the European Parliament, which has its own negotiator – former Belgian Prime Minister Guy Verhofstadt – and must be approved by a “qualified majority” of the Council, consisting of at least 20 of the 27 member states comprising at least 65 per cent of the population.

At Lancaster House, Prime Minister May said that, while the UK doesn’t want to retain membership in the EU’s Single Market, it seeks “the greatest possible access” to the Single Market through a new Free Trade Agreement – one that “may take in elements of current Single Market arrangements in certain areas – on the export of cars and lorries for example, or the freedom to provide financial services across national borders.”

It’s highly unlikely a Free Trade Agreement – especially one that is differentiated by sector – can be negotiated in two years.  To avoid the “cliff-edge” scenario, the prime minister proposed a “phased process of implementation” during which the UK and EU 27 would prepare for the new post-Brexit relationship. It wouldn’t be, she said, “some form of unlimited transitional status” but would provide time to phase in the new arrangements for each of the many issues – immigration controls, customs systems, financial services regulations, etc. – involved.  Barnier’s response was short and telling: “Exit first, then we’ll negotiate an FTA.”  An FTA, it should be noted, will require the approval of all of the EU member states, not just a qualified majority.

At Lancaster House, the prime minister also noted that, while the UK doesn’t want to retain full membership in the EU’s Customs Union, it nevertheless wants tariff-free trade with Europe and cross-border trade that is as frictionless as possible: “I do want us to have a customs agreement with the EU. Whether that means we must reach a completely new customs agreement, become an associate member of the Customs Union in some way, or remain a signatory to some elements of it, I hold no preconceived notion.”

There’s no reason to think the EU 27 will allow the UK to enjoy “elements of the current Single Market” for the export of cars and trucks and provision of financial services and tariff-free trade under a new or amended customs agreement without accepting the free movement of EU citizens and the regulations and rulings of the EU institutions. Barnier and Verhofstadt have both made it clear the UK won’t be able to “cherry pick” elements of the Single Market and Customs Union.

The outcome of the negotiation will depend not on what the UK wants but on what the EU is willing to give. And as if that were not enough, Sturgeon’s exquisitely-timed announcement raises the prospect that the prime minister’s vision of a post-Brexit “Global Britain” will give way to a more insular and parochial reality – that of a Little England.

David R. Cameron is a professor of political science and the director of the Program in European Union Studies at the MacMillan Center at Yale.