If we Vote Leave on 23 June, the Government will need a roadmap to implement the policy voted for by the public.
Vote Leave believes there should be 1) a negotiation strategy for the informal talks that will precede the formal negotiations leading to a new UK-EU treaty, 2) immediate legislation in the current session of Parliament and, 3) a framework for legislation and policy decisions between 2016 and 2020 of which the centrepiece is the repeal by 2020 of the European Communities Act 1972 (ECA). We can also start negotiating new trade deals to promote free trade before we have left the EU.
The Government should outline to Parliament the legislative steps needed to give effect to the public’s vote. Flexibility will be vital. There is no need to rush the process. The precise details and the exact timing of the final settlement will only be clear when the Prime Minister’s new negotiating team engages and negotiations begin.
Given the importance of securing a good deal in the national interest and the cross-party nature of the Leave campaign we believe the Government should invite figures from other parties, business, the law and civil society to join the negotiating team. There is a precedent for broad-based representation in talks such as these. The UK delegation which attended talks on the original EU Constitution included a Conservative MP, David Heathcoat-Amory and Labour’s Gisela Stuart MP, now Chair of Vote Leave.
The ECA should, of course, be amended quickly but should not be repealed in full until the formal negotiations are complete and the new UK-EU Treaty is clear. When the ECA is repealed Parliament will decide carefully which areas of existing EU law should a) be kept, b) be amended and c) be removed.
It is only after informal negotiations with both other EU members and the Commission that issues such as whether and how to use Article 50 will be clear. It makes no sense to trigger Article 50 immediately after the 23 June vote and before extensive preliminary discussions.
Funding to organisations from the EU will continue unaffected as the negotiations happen and the Government should continue that funding until the end of the Parliament in 2020.
It will be possible to negotiate a new settlement with the EU, including a UK-EU free trade deal, by the next general election in May 2020. This is mainly because 1) there is already tariff-free trade between the UK and the EU and 2) there is already regulatory equivalence, so the main stumbling blocks to negotiating a trade agreement are absent. It is also in all countries’ economic and political interests for there to be a friendly deal that will increase and improve international cooperation.
Leader of the House of Commons Chris Grayling said:
'After we Vote Leave the public need to see that there is immediate action to take back control from the EU. We will need a carefully managed negotiation process and some major legislative changes before 2020, including taking real steps to limit immigration, to abolish VAT on fuel and tampons, and to end the situation where an international court can tell us who we can and cannot deport. A vote to Leave on 23 June is a vote for action, and the Government will need to respond quickly.'
If we vote to Leave, then Parliament could then enact the following legislation:
European Union Law (Emergency Provisions) Bill. This would be introduced in the current session of Parliament. It would immediately end the rogue European Court of Justice’s control over national security, allow the Government to remove EU citizens whose presence is not conducive to the public good (including terrorists and serious criminals), end the growing use of the EU’s Charter of Fundamental Rights to overrule UK law, and end payouts under EU law to big businesses, saving between £7 billion and £43 billion for public services by 2021. This will amend the European Communities Act 1972 but not repeal it. This action is limited to areas that will not form part of the final UK-EU settlement.
Legislation to be introduced in subsequent sessions will include:
A special Finance Bill. This would abolish the 5% rate of VAT on household energy bills by the date of the next general election by amending the Value Added Tax Act 1994, and will be a major benefit for low income households. This will be paid for by savings from the UK’s contributions to the EU budget.
National Health Service (Funding Target) Bill. This would require that by the next general election, the NHS receives a £100 million per week real-terms cash transfusion over and above current plans. This will be paid for by savings from the UK’s contributions to the EU budget and other savings from leaving (e.g. we will not pay the billions that the ECJ is ordering us to pay to multinational companies trying to avoid UK taxes).
Asylum and Immigration Control Bill. This would end the automatic right of all EU citizens to enter the UK by the next election. We will be able to carry out proper security checks on those entering and refuse entry to known criminals. EU citizens will be subject to UK law rather than EU immigration legislation. The Bill would end the discrimination against non-EU citizens and create a genuine points-based immigration system in which the possession of suitable skills is a key element. The Bill will also end the European Court’s control of the UK’s asylum policy by the next general election. Immediately after the referendum, a process should be established to consider the details of this new system.
Free Trade Bill. This would require that by the next election, the UK leaves the EU’s ‘common commercial policy’. That would restore the UK Government’s power to control its own trade policy. That would create jobs. The UK would take back its seat on the World Trade Organization, becoming a more influential force for free trade and friendly cooperation. After we Vote Leave, we would immediately be able to start negotiating new trade deals with emerging economies and the world’s biggest economies (the US, China and Japan, as well as Canada, Australia, South Korea, New Zealand, and so on), which could enter into force immediately after the UK leaves the EU.
European Communities Act 1972 (Repeal) Bill. This would ensure that by the next general election, the European Communities Act 1972, the legal basis for the supremacy of EU law in the UK, is repealed. The EU Treaties will cease to form part of UK law and the European Court’s jurisdiction over the UK will come to a permanent end. The UK would cease to make contributions to the EU budget. EU law would be transferred into domestic law so there is no abrupt change and Parliament would be able to debate and choose which provisions to keep, which to remove, and which to amend.
Notes to editors
Following a vote to leave the EU on 23 June, nothing changes immediately. The European Union referendum, like the Scottish independence referendum, will have no automatic legal consequences (Moohan v Lord Advocate  UKSC 67, para , link). In particular, there is no duty to trigger article 50 of the Treaty on European Union (TEU), setting in place a two year timetable for leaving the EU, which can only be extended by unanimity (TEU, art. 50, link).
Article 50 is not the sole lawful means of leaving the EU. If this were the case, Greenland could not have left the EU in 1985, but it did. Greenland left under what is now the ‘ordinary revision procedure’, or article 48 of the Treaty on European Union (TEU) (TEU, art. 48, link; Official Journal, 1 February 1985, link). Under international law, it is also possible to leave the EU under article 54 of the 1969 Vienna Convention on the Law of Treaties (Rieder, 2013, link; Dorr, 2012, link).
The EU has also on many occasions ignored its own rules to reach deals that are politically convenient. The recent bailouts and the ‘outright monetary transactions’ programme were both adopted in prima facie violation of provisions of the EU Treaties agreed at Maastricht which were necessary to secure Germany’s agreement to economic and monetary union.
It will be for the Government to decide when, if at all, Article 50 is triggered and the most appropriate means by which the UK leaves the EU. The new UK-EU Treaty will need to be agreed in international law on an intergovernmental basis outside the framework of the European Union institutions and the jurisdiction of the European Court.
Negotiations on the UK’s withdrawal from the European Union will begin immediately after the referendum. There will be informal negotiations, then formal negotiations, and legal changes, both to the EU Treaties and to UK law. The precise details and the exact timing of the final settlement will only be clear when the Government negotiating team engages and develops a framework.
The principles of the new settlement are clear and have been consistently advocated by Vote Leave during the campaign. The settlement will be based on free trade and friendly intergovernmental cooperation. The supremacy of EU law and the European Court’s jurisdiction will be ended. The UK will take back powers over its national security and tax system. Budget contributions to the EU will end. The EU’s control over the UK’s borders and the admission of persons into the UK will end. The UK will leave the EU’s ‘common commercial policy’.
It will be possible to negotiate a new settlement with the EU by the next general election in May 2020. This is because all the main stumbling blocks to negotiating a trade agreement will be absent:
- There is already tariff-free trade between the UK and the EU. The parties will not need to negotiate the tariff lines on which duties will be abolished, only to continue the existing, status quo of tariff-free trade. Under the recent EU-Canada deal, 99% of industrial goods and 97% of agricultural goods will be imported into the EU without tariff duties (European Commission, 2014, link). The UK is a much more important export market than Canada, so will easily be able to achieve the maintenance of the status quo, namely tariff-free trade in goods (NIESR, 2 November 2015, link).
- There is already regulatory equivalence. Detailed negotiations about the mutual recognition of product standards will be not be necessary, since at present, regulations are identical. Since there are currently few non-tariff barriers, there will be no need to negotiate their abolition. Countries such as Australia have Mutual Recognition Agreements that deal with these matters (Official Journal, 17 August 1998, link). The UK will quickly be able to strike a satisfactory deal on mutual recognition.
Past experience shows that three years and ten months is ample time to negotiate the new treaty. This is the period between the referendum on 23 June and the next general election, the date of which is fixed by law (Fixed-term Parliaments Act 2011, s. 1(3)). Experience suggests a free trade agreement can be struck in this time.
- Greenland left the EU in less than three years. Greenland voted to leave the then European Economic Community on 23 February 1982 (House of Commons Library, 2013, link). The Treaty amending, with regard to Greenland, the Treaties establishing the European Communities, was signed at Brussels on 13 March 1984 (SI 1984/1820, 22 November 1984, link). The Treaty entered into force on 1 February 1985 (Irish Ministry of Foreign Affairs, 2010, link). This provided for tariff free access to the EU for Greenland’s principal export, fish (Protocol (No 34) to the EU Treaties, link).
- The average length of time needed to negotiate a free trade agreement is around two years. Oxford Economics has said that ‘an analysis of regional trade deals conducted over the past 20 years found an average duration of 28 months’ (Oxford Economics, 2016, link). There are many examples: the US-Australia free trade agreement (FTA) was concluded in less than two years (Library of Congress, 3 August 2003, link; Australian Government, 2016, link); the Switzerland-China FTA was negotiated in a little over two years (Centre for Security Studies, February 2014, link; Swiss State Secretariat for Economic Affairs, 2016, link); the US-Canada FTA was negotiated in less than two years (Government of Canada, 2016, link); the US-Morocco FTA was negotiated in less than two years (US Diplomatic Mission to Morocco, 2016, link); and the US-Chile FTA was negotiated in two and a half years (Organization of American States, 2016, link).
Domestic law is entirely within the UK’s control. As well as the new UK-EU Treaty which will be agreed on an intergovernmental basis, changes to domestic law will be required. It is an established constitutional position that EU law only has effect in the law of each part of the UK by virtue of the European Communities Act 1972 (Thoburn v Sunderland DC  QB 151, link; Pham v Secretary of State for the Home Department,  UKSC 19, para , link). The 1972 Act will remain in force on 23 June. When this Act is repealed is exclusively a matter for Parliament. Some EU legislation has been incorporated into domestic law via other Acts of Parliament, such as the Data Protection Act 1998. This will remain in force on 23 June, and it will be for Parliament to choose how, if at all, such laws will be amended.
Domestic legislation before the international agreement is finalised will not prevent the UK from reaching a deal. None of the features of the UK’s current relationship with the EU that will be ended by the Bills outlined here, whether immediately or by the time of the next general election, will form part of the new UK-EU relationship. Legislating to end them before the final deal is agreed will not therefore in any way be prejudicial to the UK’s ability to obtain that deal.