We’ve spent 4 needless months discussing the process, not the outcome of the Brexit deal. We’ve taken a look at the political systems of other EU countries to see whether the same would likely happen elsewhere.
Since the vote to leave, the national debate on the EU has focussed mainly on the arcane details who has the legal authority to start the formal exit process. Can the government, using archaic powers whose origins come from the divine right of the monarch, revoke rights of UK citizens unilaterally? Or does Parliament have to approve the decision? But why was the question of who could trigger article 50 so opaque in the first place?
Thanks to our unwritten (or technically ‘uncodified’) constitution, there are simply no hard rules for how such an enormous change is implemented. Only four other countries in the world lack a written constitution, including Saudi Arabia with its absolute monarchy.
It was the same unwritten constitution that allowed David Cameron to pass a referendum that made no provisions for how the outcome would be implemented. The rules are set each time in isolation to suit the political needs of the government of the day.
Article 50 of the Lisbon Treaty says that in order to leave, a member state must satisfy its own constitutional arrangements before starting the process. If virtually any other EU country voted to leave, the process they’d have to follow is made much clearer thanks to their written constitutions.
So how would other countries leave the EU? Let’s look at a few examples:
Membership of the EU is enshrined in the country’s federal constitution. In practise this means two thirds of both the Bundestag and the Bundesrat would need to vote in favour of leaving. So, it’s very clear what would need to happen to start the process, Angela Merkel could not unilaterally trigger Article 50. But what about negotiating an exit deal?
The German constitution places limits on what can be decided in a binding referendum, and EU membership isn’t on the list . If a vote was held, the public would have to lobby their representatives to vote in large enough numbers to vote for withdrawal.
When it comes to whether Germany stayed in the Common Market, kept free movement or other issues, the Government is given the views of the Bundestag on a negotiation position which it has to follow or explain why it has deviated from it during negotiations.
Denmark joined the EU at the same time as the UK. Their constitution requires a referendum in order to transfer sovereignty to international bodies, and the Danish voted in favour of entry.
Like Germany, Denmark’s EU membership is mentioned in its constitution, but the Folketing can repeal treaties with a majority vote. This means that it could effectively take the country out of the EU by repealing the treaty establishing EU membership.
So, it would be much easier to leave than in Germany, but what about an exit deal? The Folketing has a powerful European Affairs Committee which can reject the responsible Minister’s proposed negotiating position. If Denmark were to leave, this is where the real power would lie, in the 29 members of the committee, not just the government or one person.
3. The Netherlands
Like the Germans, the Dutch cannot vote in binding referendums, but advisory ones have been held on the Lisbon Treaty. Like Denmark, the States General could vote to repeal the European treaties in order to leave the EU.
Again like Germany, the Dutch have parliamentary committees that ministers are required to report to before European summits. That committee or Parliament itself will make its views known, and will form a de-facto negotiating position. Legally this is weaker, but it is uncommon for Ministers to go against these mandates.
Now is the time for a written constitution
As we’ve seen, the UK is the only EU country whose constitution provides such little clarity on how to leave the EU. When it comes to how much power the government has over a proposed exit deal, things vary widely. But should any other country decide to leave, we can safely assume that the debate would be about what kind of country they wanted to be outside of the EU, not getting bogged down for months about who has the power to do what.
With a new political settlement for the UK in the making, now is the time to start work on a new written constitution that makes the people sovereign, clarifies our rights and responsibilities, and disperses power to a local level.