The motivations for and mechanics of a “Brexit”

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           On June 23, British[1] voters will make the most important decision on the United Kingdom’s (“UK”) sovereignty in more than forty years:[2] whether it will remain a member of the European Union (“EU”) or withdraw in a so-called “Brexit.”[3] The wheels were set in motion in January 2013 when Prime Minister David Cameron vowed to renegotiate Britain’s position in the EU and hold an in-or-out vote by 2017 if his Conservative Party, also known as the “Tories”, won re-election in 2015.[4] Cameron believed a united Tory cabinet would permit a spirited debate on the topic, squash the anti-EU movement, and move on.[5] However, following his successful re-election bid, Cameron faced unexpected opposition from London Mayor Boris Johnson, a fellow Tory, on the issue.[6] Johnson’s outspoken support for a Brexit has prompted several cabinet members[7] to defy Cameron and join the campaign to leave the EU.[8] The stage has thus been set for UK citizens to decide in a few months if their future lies within the EU.

Why Brexit?

           Brits’ deep-seated wariness of involvement with the Continent was reflected in Prime Minister Neville Chamberlain’s policy of appeasing Nazi aggression,[9] Labour Party leader Hugh Gaitskell’s view that joining the European Economic Community in the 1950s would “mean[] the end of a thousand years of history,”[10] and now in eurosceptics’[11] argument that a Brexit would be like a prisoner escaping jail.[12] This most recent bout of euroscepticism has produced numerous arguments that withdrawal is in the UK’s best interest. The ability to re-negotiate trade deals more favorable to the UK; removing regulations harmful to businesses and workers; and saving money by discontinuing contributions to the EU’s budget[13] have all been raised as credible motives.[14]

Cameron and Johnson
British Prime Minister David Cameron (right) with London Mayor Boris Johnson at
the World Economic Forum's annual meeting in January 2012. Both are members
of the U.K.'s Conservative Party. While Cameron wants to renegotiate the U.K.'s
position within the European Union, Johnson and several other leading Tories
want to leave the EU altogether. Photo via WikiMedia Commons.

           Yet, the most significant issues appear to be migration and sovereignty.[15] One key point is that the EU’s freedom-of-movement policy allows migrant workers to compete in the labor market against British citizens.[16] The Conservative government has tried to stem the tide of migrants with little success.[17] Two million EU nationals work in the UK, twice as many as in 2007.[18] While immigration from outside the EU has been reduced, inflows of EU nationals are near an all-time high.[19] Estimates indicate 257,000 EU nationals moved to the UK in the past twelve months, up 11,000 from the previous twelve-month period.[20] However, Brexit critics point to the fact that 58% of those immigrants moved due to offers of employment, while the remainder came looking for work.[21] They further counter that the UK’s low unemployment rate of 5.1% allows both immigrants and British citizens to find work.[22]

           Two main counter-arguments have been proffered by the campaign against a Brexit. First, opting out of the EU’s ‘freedom of movement’ pillar would probably result in the remaining member states expelling Britain from the EU’s single market system.[23] This would disrupt trade relations with the UK’s largest export market.[24] Additionally, immigration constraints would create a complicated situation for UK expatriates living in EU countries. For example, the EU’s liberal immigration policies allow nearly 800,000 British citizens to reside in Spain alone.[25] Consequently, Brexiters’ desire to leave the EU to halt “one of the greatest movements of people in human history”[26] would have far-reaching implications beyond that of immigration.

           Regaining control over Britain’s sovereignty is another of the eurosceptics’ goals.[27] They argue that a Brexit would free the UK’s domestic policy from the control of European bureaucrats and the European Court of Justice.[28] One downside is that the UK would still be affected by EU policy but less able to influence it.[29] While Brexit proponents will argue the UK should not be intimidated by the EU’s power, the fact remains that the EU will persist as Britain’s main trading partner and will therefore have to comply with some EU regulations.[30] For example, the EU’s recent trade agreement with South America contains provisions on sustainable development that includes adherence to labor and environmental standards; the prudent use of natural resources such as timber and wildlife; as well as corporate social responsibility.[31]

Textual Requirements for Withdrawal from EU

           Should the majority of British citizens vote in favor of exiting the European Union on June 23, certain procedural requirements must be followed. First, a Brexit would trigger an application to withdraw from the EU under Article 50 of the Treaty on the European Union (“TEU”).[32] The Treaty of Lisbon added article 50 to the TEU in 2007.[33] Article 50(1) allows any EU member state to withdraw “in accordance with its own constitutional requirements.”[34] Article 50(2) then provides that: 

A Member State which decides to withdraw shall notify the European Council of its intentions. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.[35]

           For purposes of Article 50(2), a “qualified majority” means a bloc of nations comprising (1) “at least 55% of the members of the Council” (2) whose inhabitants represent “at least 65%” of the EU’s approximate population of five hundred million people. [36]

Polling Data
    Should I stay or should I go?
    Euroskeptics have closed the gap in UK popular opinion as the June 23 referendum
    approaches, though a substantial portion of the population remains undecided.
    Graphic via WikiMedia Commons.

           Article 50(3) sets out the timing parameters for a withdrawal.[37] The UK would cease to be an EU member state on the earlier of the date a withdrawal agreement enters into force or two years, unless the European Council and the UK unanimously agree to extend the two-year period.[38] During this negotiations period, the UK would not be allowed to participate in European Council discussions.[39]

           Finally, Article 50(5) stipulates that a member state that seeks to rejoin the EU after triggering the Article 50 exit clause must follow the procedures for new-member admission proscribed in Article 49.[40]

Article 50’s Practical Implications

           Article 50’s first and most important feature is that of timing. The Treaty provides that a nation invoking Article 50 shall cease to be an EU member state after the passage of two years or a withdrawal agreement has been approved, unless the remaining member states unanimously acquiesce to an extension.[41]

           One timing problem not explicitly addressed in the Treaty is the possibility of rescinding a withdrawal notification. Since Article 50(1) makes a withdrawal subject to a member state’s Constitutional requirements, it could be argued that the Treaty leaves it to the State’s judiciary to decide.[42] On the other hand, the more plausible interpretation appears to be that Article 50 only provides two alternatives to delay withdrawal once notification has been given: an extension of the two year time limit by unanimous vote or a different date stipulated in the withdrawal agreement.[43] Article 50(2) clearly states that negotiations shall discuss the terms for “withdrawal,” not about Treaty amendments or changes to other forms of EU law.[44] While it is highly probable the remaining member states of the EU will agree to separate treaty amendments if the UK does in fact withdraw (at the least, to delete Great Britain’s name), the plain language of the Treaty indicates Article 50 was meant for the sole purpose of withdrawal and not renegotiation of EU membership or bargaining leverage to amend treaties.[45]

           From a political standpoint, triggering Article 50 for the purposes of renegotiation would put the UK in an even more difficult predicament. Because Article 50(2) specifies that a withdrawing nation only has two years to agree to exit terms unless all remaining nations vote to extend, the remaining countries would have all the leverage in a negotiation setting to force Great Britain to sign an agreement in their favor.[46] Therefore, pro-Brexiters who suggest employing Article 50 as a tactical weapon to gain bargaining power over the EU “must actually have the objective of ensuring the UK leaves the EU.”[47]

           The other key aspect of Article 50 regards the content of the negotiated withdrawal agreement. The plain language of Article 50(2) indicates a withdrawal agreement, rather than a deal on the UK’s future relationship with the EU, will be negotiated after the exit clause is triggered.[48] Practically speaking, however, the specifics of a withdrawal agreement and treaty establishing a future relationship will likely be closely connected. Yet, although Article 50(2) specifies negotiations will take “account of the framework for [Britain’s] future relationship with the Union,” there is no legal obligation for the remaining EU member states to sign a free trade agreement with the UK.[49] This raises the politically and legally significant point that a new treaty between the UK and the EU would require unanimous approval by the remaining EU member states, even though the withdrawal agreement itself would require only the “qualified majority”.[50] The unanimity requirement would certainly impose additional complications on Britain’s desire to retain their access to the EU’s single market will suspending some elements of the Union’s freedom of movement policy.[51]


[1] In this article, the term “British” refers to all United Kingdom citizens, including residents of both Great Britain and Northern Ireland. See, e.g., John Darby, Scorpions in a Bottle: Conflicting Cultures in Northern Ireland 135 (1997) (citing a poll of national identity showing protestants in Northern Ireland are more likely to consider themselves “British” than their Catholic counterparts).

[2] See The EEC and the Single European Act, Parliament para. 1, http://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/parliament-and-europe/overview/britain-and-eec-to-single-european-act [perma.cc/A6WL-53AM] (last visited March 7, 2016) (discussing UK accession to the EU’s forerunner, the European Economic Community, on January 1, 1973, and the 67% support for remaining in the EEC in a 1975 plebiscite).

[3] A background guide to “Brexit” from the European Union, Economist para. 1 (Feb. 24, 2016), http://www.economist.com/blogs/graphicdetail/2016/02/graphics-britain-s-referendum-eu-membership [perma.cc/RF7H-H5EN] [hereinafter “A background guide”].

[4] Id. at para. 2.

[6] Id.

[7] See Id. at para. 3 (listing pro-Brexit cabinet members Michael Gove, the justice secretary; Iain Duncan Smith, the work and pensions minister; and Chris Grayling, the leader of the House of Commons).

[8] Id.

[9] Neville Chamberlain (1869–1940), BBC para. 4, http://www.bbc.co.uk/history/historic_figures/chamberlain_arthur_neville.shtml [https://perma.cc/R9ZH-9XU8] (last visited March 10, 2016).

[10] Your favourite Conference Clips, BBC para. 16 (Oct. 3, 2007), http://news.bbc.co.uk/2/hi/programmes/the_daily_politics/6967366.stm [https://perma.cc/A3D6-DDW7].

[11] “Eurosceptic” is often used as shorthand for Brits now in favor of leaving the EU, but it has also referred to those who have opposed the successive stages of EU integration since the 1950s.

[12] Ben Riley-Smith, Boris Johnson: Leaving EU would be like ‘prisoner escaping jail’, Telegraph para. 1 (Mar. 6, 2016 8:00 PM GMT), http://www.telegraph.co.uk/news/newstopics/eureferendum/12184958/EU-referendum-Boris-Johnson-outlines-case-for-Brexit-on-Andrew-Marr-Show-live-updates.html [https://perma.cc/S24V-FKKZ].

[13] The UK sends approximately £18 billion to the EU annually. A background guide, supra note 3, at para. 5.

[14] Id. But see The Brexit Delusion, Economist paras. 10–25 (Feb. 27, 2016)http://www.economist.com/news/briefing/21693568-david-cameron-will-struggle-win-referendum-britains-eu-membership-if-he-loses [perma.cc/C5BD-BQK2] (arguing Brexit will endanger the long-term economic future of Great Britain).

[15] The Real Danger of Brexit, Economist paras. 4–5 (Feb. 27, 2016), http://www.economist.com/news/leaders/21693584-leaving-eu-would-hurt-britainand-would-also-deal-terrible-blow-west-real-danger [perma.cc/SC5F-B7AZ].

[16] Sarah O’Connor, Brexit debate unnerves continent’s service workers in UK, Fin. Times para. 4 (Mar. 7, 2016)http://www.ft.com/cms/s/0/5db877f2-d0a9-11e5-831d-09f7778e7377.html [https://perma.cc/Z8G3-WFU6]; see Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance), Celex No. 304L0038, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF [https://perma.cc/DR77-MWDQ].

[17] The Real Danger of Brexit, supra note 15, at para. 3.

[18] O’Connor, supra note 16, at para. 2.

[19] Id.

[20] Gonzalo Vina, UK net migration falls for first time in two years, Fin. Times para. 9 (Feb. 25, 2016)https://next.ft.com/content/62d7a802-dba8-11e5-a72f-1e7744c66818 [https://perma.cc/KY7D-KEWP].

[21] Id. at para. 10.

[22] O’Connor, supra note 16, at para. 17.

[23] See The Real Danger of Brexit, supra note 15, at para. 6.

[24] The Brexit Delusion, supra note 14, at para. 12 (noting that 50% of the UK’s exports go to EU countries).

[25] Brits Abroad, BBC News para. 1http://news.bbc.co.uk/2/shared/spl/hi/in_depth/brits_abroad/html [https://perma.cc/T93C-ZRJF] (last visited Mar. 11, 2016).

[26] See Josh Lowe, Brexit Camp Welcomes Archbishop Immigration Comments, Newsweek para. 3 (Mar. 11, 2016) (discussing assertion by Archbishop of Canterbury Justin Welby, who leads the Church of England, that fears of mass immigration should not be dismissed lightly)http://www.newsweek.com/archbishop-canterbury-immigration-justin-welby-iain-duncan-smith-brexit-435804 [https://perma.cc/CL2L-AN2V].

[27] The Brexit Delusion, supra note 14, at para. 25.

[28] Id.; The Real Danger of Brexit, supra note 15.

[29] Id.

[30] Id.

[31] Sustainable Development, Eur. Comm’n para. 8, http://ec.europa.eu/trade/policy/policy-making/sustainable-development [https://perma.cc/PA47-Q4DF] (last visited Mar. 21, 2016).

[32] The Brexit Delusion, supra note 14, at para. 7; see Eur. Council, Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights of the European Union (Jan. 2015), available at http://data.consilium.europa.eu/doc/document/ST-6655-2008-REV-8/en/pdf.

[33] The Brexit Delusion, supra note 14, at para. 7, see Treaty of Lisbon, Amending the Treaty on the European Union, Dec. 13, 2007, 2007 O.J. (C306) art. 50(1).

[34] See Treaty of Lisbon, supra note 33, at art. 50(1).

[35] Id. at art. 50(2).

[36] Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2012 O.J. (C326) at Article 238(3)(a), available at http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012E/TXT&from=EN [https://perma.cc/5SVM-CMTP] (indicating a blocking minority must include at least four Council members “representing more than 35% of the population of the participating Member States). See also Living in the EU, Eur. Union para. 2http://europa.eu/about-eu/facts-figures/living/index_en.htm [https://perma.cc/88KD-FTFP] (showing that the populations of Germany, France, Italy,and Spain, the four largest remaining member states, would be able to prevent a “qualified majority”).

[37] Treaty of Lisbon, supra note 33, at art. 50(3).

[38] Id.

[39] Id. at art. 50(4).

[40] Id. at art. 50(5).

[41] Id. at art. 50(2).

[42] Steve Peers, Article 50 TEU: The uses and abuses of the process of withdrawing from the EU, EU L. Analysis para. 11 (Dec. 8, 2014)http://eulawanalysis.blogspot.com/2014/12/article-50-teu-uses-and-abuses-of.html [https://perma.cc/TV7A-474H].

[43] Id.

[44] Treaty of Lisbon, supra note 33, at art. 50(2).

[45] See Peers, Article 50 TEU, supra note 40, at para. 13.

[46] See Treaty of Lisbon, supra note 33, at art. 50(2).

[47] Peers, Article 50 TEU, supra note 40, at paras. 14–15.

[48] Treaty of Lisbon, supra note 33, at art. 50(2).

[49] See id.; Peers, Article 50 TEU, supra note 33, at paras. 17–18.

[50] See Peers, Article 50 TEU, supra note 40, at paras. 19–20.

[51] Id.


Posted by Joseph A. Fleishman on Mon. March 21, 2016 10:21 PM
Categories: European Union, Reports (longer, analytical blog posts), United Kingdom

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