The United Kingdom had voted to decide an EU future and thereafter voted to leave the European Union.
The Lisbon Treaty (the Treaty of the European Union 2007) contains a mechanism by which this can be achieved in Article 50. It provides:
“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. 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 the framework for 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.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to re-join, its request shall be subject to the procedure referred to in Article 49.”
In terms of British Constitutional theory there are broadly three ways in which Brexit could be brought about:
i) An act of Parliament repealing the European Communities Act 1972 and declaring the UK is no longer bound by EU law;
ii) An act of Parliament commencing the Article 50 procedure which is then duly communicated to the European Council; and
iii) The Prime Minister exercises the royal prerogative powers bestowed on that office and triggers Article 50 by notifying the European Council without Parliament’s previous permission or instruction.
The first of these options can be dismissed almost immediately; the UK will not wish to act so rashly at a time when it needs to negotiate a great deal more international agreements. The proper method for withdrawal should be used. The remaining two options differ as to whether or not an Act of Parliament is required to “trigger” an Article 50 notification. This is the issue to be resolved in the Brexit hearing currently going through the High Court (as previously discussed here).
One school of thought is that Parliament expressed its will to be bound by EU law by passing the 1972 Act and so this cannot be undone by an exercise of the royal prerogative; the Crown cannot overrule Parliament. The contrasting position is that the 1972 Act, properly interpreted, merely gives effect to EU law in this jurisdiction. Article 50 is a part of EU law and so a prerogative action in accordance with Article 50 is compliant with the will of Parliament as expressed in the 1972 Act.
Which of these legal routes the government decides to take, when Article 50 is notified, will depend on the politics of the time. If a government thinks it can easily pass such an Act it may well wish to adopt that approach to ensure that there are no subsequent challenges. However, if it seems that for some reason it would not be possible to pass such an Act, the prerogative power may be used instead.
We now know that the government will use the prerogative power.
Article 50, paragraph 2, makes it clear that it is up to the Member State to decide if and when to leave and that there is no power enabling the EU to commence the leaving process. It is for the Member State to ‘notify’ the European Council. There are no requirements for the notification other than the Member State notifies the European Council expressing its intention to withdraw. The inclusion of the word ‘intention’ and EU law’s purposive interpretation means that the notification will need to make clear that the UK intends to withdraw from EU membership and that is all.
It is for this reason there has been talk of the EU refusing to negotiate informally until Article 50 is engaged. There is nothing else the EU can do to force the issue. Other than state that the formal comments made by our political leaders have already notified the European Council that the UK intends to withdraw from the EU.
In a short while guidelines will be published by the European Council as to how the negotiations will be conducted. It is their decision and the UK will be excluded from any involvement in deciding the guidelines. The reference to Article 218(3) TFEU does no more than to say that the Commission will adopt the same role in appointing negotiators for these discussions as it does when the Union deals with 3rd party countries.
Thereafter the negotiations will determine both the arrangements for withdrawal and the framework for the Member State’s future relationship with the EU. The agreement reached at the end of these negotiations must be approved by the European Parliament and by the Council.
Once such an agreement is reached and comes into force, according to Article 50, paragraph 3, EU law ceases to apply to the former Member State. Alternatively, 2 years after the notification, EU law will cease to be effective. This period can be extended by unanimous agreement of the European Council and the withdrawing Member State. Unlikely in the UK’s case.
Paragraph 4 provides, quite logically, that the UK and its representatives cannot be included in the Council or European Council for the purposes of these negotiations and votes. The fact that MEPs are not referred to here, suggests that they remain entitled to vote on the terms. Given the European Parliament represents the citizens of EU rather than the Member States or their governments, it seems appropriate that those representatives are still entitled to vote.
The final paragraph states that a former Member State, wishing to re-join must do in the same way as any country seeking to join the EU for the first time. Back too square one. Query - is that behind Turkey?
For such a short legal provision, it is hard to understate its impact on the future of both the United Kingdom and European Union. When Article 50 is notified, there is no going back. Paragraph 3 is written in mandatory words such that after 2 years have elapsed from the notice, the notifying Member State is released from its rights and responsibilities under EU law. This will herald significant constitutional change this side of the Channel and will cause waves across the continent as a new agreement will govern the relationship between the UK and the EU.
But what notification does do is introduce certainty in that there will be a timetable in which the UK government must agree its terms for the negotiations and then sit at the table and negotiate. There is nothing preventing the UK in how it agrees its negotiating terms. They can even be debated in Parliament if people so wish.
As far as the UK voting goes re Article 50, that was completed a long time ago, on election night, 23 June 2016.
© Chambers of Lawrence Power