United Kingdom invocation of Article 50

The United Kingdom's expected invocation of Article 50 of the Treaty on European Union will be a major step in the UK withdrawal from the EU. In October 2016, the UK Prime Minister, Theresa May, announced that Article 50 would be triggered by "the first quarter of 2017".[1]

Background

The first likely invocation of Article 50 of the Treaty on European Union will be with the United Kingdom, after the Leave vote in the 2016 referendum on the United Kingdom's membership of the European Union.

When David Cameron resigned in June 2016, he stated that the next Prime Minister should activate Article 50 and begin negotiations with the EU.[2]

There is dispute over whether the decision to invoke Article 50 is the prerogative of the government, as the then government argued,[3] or whether it requires Parliamentary approval.[4][5] The Constitution of the United Kingdom is unwritten and the meaning in UK law of the phrase "its own constitutional requirements" is untested. The law firm Mishcon de Reya announced that it had been retained by a group of clients to challenge the constitutionality of invoking Article 50 without Parliament debating it.[6][7] However, Parliament will be able to vote on any new treaty arrangements that emerge from any withdrawal deal that is reached, though rejecting such a deal (or the failure to reach such a deal) would not stop the withdrawal process once Article 50 is activated.[8]

Necessity of invoking Article 50

As with all but one UK referendum, it was an advisory referendum, and so could theoretically be ignored by Parliament.[9] The exception was the United Kingdom Alternative Vote referendum, 2011, which would have become law if there had been a yes vote. However, the Conservative government has committed to invoking Article 50 at some point.

Pre-notification negotiations

As long as the UK Government has not invoked Article 50, the UK stays a member of the EU; must continue to fulfill all EU-related treaties, including possible future agreements; and should legally be treated as a member. The EU has no framework to exclude the UK—or any member—as long as Article 50 is not invoked, and the UK does not violate EU laws.[10][11] However, if the UK were to breach EU law significantly, there are legal venues to discharge the UK from the EU via Article 7, the so called "nuclear option" which allows the EU to cancel membership of a state that breaches fundamental EU principles, a test that will be hard to pass.[12] Article 7 does not allow forced cancellation of membership, only denial of rights such as free trade, free movement and voting rights.

At a meeting of the Heads of Government of the other states in June 2016, leaders decided that they will not start any negotiation before the UK formally invokes Article 50. Consequently, President of the European Commission Jean-Claude Juncker ordered all members of the EU Commission not to engage in any kind of contact with UK parties regarding Brexit.[13] Media statements of various kinds still occurred. For example, on 29 June 2016, European Council president Donald Tusk told the UK that they won't be allowed access to the European Single Market unless they accept its four freedoms of goods, capital, services, and people.[14] Angela Merkel said "We'll ensure that negotiations don't take place according to the principle of cherry-picking ... It must and will make a noticeable difference whether a country wants to be a member of the family of the European Union or not".[15]

Renegotiation of membership terms

There is no established, formal process for holding a second referendum to "confirm" the decision to leave following negotiations. Alan Renwick of the Constitution Unit of University College London argues that Article 50 negotiations cannot be used to renegotiate the conditions of future membership and that Article 50 does not provide the legal basis of withdrawing a decision to leave.[16] In April 2016, David Cameron stated that he would expect a leave vote to be followed by withdrawal, not by a second vote.[17]

Responsibility for notification

The referendum was not legally binding on the government: under the principle of parliamentary sovereignty, government and parliament can choose to ignore the result.[9] If the government decides to leave the EU by invoking Article 50 of the Treaty on European Union, it will have to decide when to do so. Withdrawal from the European Union using Article 50 is an untested procedure with some complexity. In a discussion of this topic, The Guardian provided specifics as to the likely method. "It is entirely up to the departing member state to trigger article 50, by issuing formal notification of intention to leave: no one, in Brussels, Berlin or Paris, can force it to. But equally, there is nothing in article 50 that obliges the EU to start talks – including the informal talks the Brexit leaders want – before formal notification has been made. 'There is no mechanism to compel a state to withdraw from the European Union,' said Kenneth Armstrong, professor of European law at Cambridge University.... 'The notification of article 50 is a formal act and has to be done by the British government to the European council,' an EU official told Reuters."[18]

Timing

As was the case with the Scottish independence referendum two years earlier, the 2016 referendum did not directly require the government to do anything in particular. It does not require the government to initiate, or even schedule, the Article 50 procedure,[16] although David Cameron stated during the campaign that he would invoke Article 50 straight away in the event of a leave victory.[19] However, following the referendum result Cameron announced that he would resign before the Conservative party conference in October, and that it would be for the incoming Prime Minister to invoke Article 50.[20]

A negotiation with the European Union will need to begin under a new Prime Minister, and I think it is right that this new Prime Minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.
— David Cameron[21]

Cameron made it clear that his successor as Prime Minister should activate Article 50 and begin negotiations with the EU.[2] Among the candidates for the Conservative Party leadership election there were disagreements about when this should be: Theresa May said that the UK needs a clear negotiating position before triggering Article 50, and that she would not do so in 2016, while Andrea Leadsom said that she would trigger it as soon as possible.[22]

According to EU Economic Affairs Commissioner Pierre Moscovici, Britain must proceed promptly. "There needs to be a notification by the country concerned of its intention to leave (the EU), hence the request (to British Prime Minister David Cameron) to act quickly."[23] As well, the EU issued a joint statement on 26 June 2016 regretting but respecting Britain's decision and asking them to proceed quickly in accordance with Article 50. The statement also added: "We stand ready to launch negotiations swiftly with the United Kingdom regarding the terms and conditions of its withdrawal from the European Union. Until this process of negotiations is over, the United Kingdom remains a member of the European Union, with all the rights and obligations that derive from this. According to the Treaties which the United Kingdom has ratified, EU law continues to apply to the full to and in the United Kingdom until it is no longer a Member."[24]

After a debate about the planned UK exit on 28 June 2016, the EU Parliament passed a motion calling for the "immediate" triggering of Article 50, although there is no mechanism allowing the EU to invoke the article.[25]

On 2 October 2016, the Prime Minister, Theresa May, announced that she intended to invoke Article 50 by the end of March 2017, meaning that the UK would be on a course to leave the EU by the end of March 2019.[26]

Possible delayed exit

In the UK, it was said in July 2016 that "there is a growing consensus that […] the government should delay invoking Article 50 of the Lisbon Treaty, starting the clock on a maximum two-year divorce negotiation, until early 2017 at the earliest. That is provoking alarm in many European capitals, where there is an equally clear consensus that Article 50 should be invoked as soon as possible."[27]

With the next French presidential election being held in April and May 2017, and the next German federal election likely to be held in autumn 2017, the European Commission was in July 2016 working under the assumption that Article 50 notification would not be made before September 2017.[28]

Legal proceedings against the government

Legal opinions differ on whether the Prime Minister may invoke Article 50 by royal prerogative, or whether there needs to be an explicit Act of Parliament to authorise its invocation. The Constitution of the United Kingdom is unwritten and it operates on convention and legal precedent: this question is without precedent and so the legal position is arguably unclear. The Government argues that the use of prerogative powers to enact the referendum result is constitutionally proper and consistent with domestic law whereas the opposing view is that prerogative powers may not be used to set aside rights previously established by Parliament.[29]

Three distinct groups of citizens – one supported by crowd funding – have brought a case before the High Court of England and Wales to challenge the government's interpretation of the law.[30] Whatever the ruling of the High Court, it is assumed that an appeal will be made to the Supreme Court since the matter (the circumstances in which the royal prerogative may be used) is of great constitutional significance.[31]

On 13 October 2016, the High Court commenced hearing opening arguments. The Government argued that it would be constitutionally impermissible for the court to make a declaration that it [HMG] could not lawfully issue such a notification. The government stated that such a declaration [by the Court] would trespass on proceedings in Parliament, as the Court had ruled previously when rejecting a challenge to the validity of the ratification of the Lisbon Treaty after the passing of the European Union (Amendment) Act 2008 but without a referendum.[32][33] Opening the case for the Plaintiffs, Lord Pannick QC told the Court that the case "raises an issue of fundamental constitutional importance concerning the limits of the power of the Executive". He argued Mrs May could not use royal prerogative powers to remove rights established by the European Communities Act 1972, which made EU law part of UK law, as it was for Parliament to decide whether or not to maintain those statutory rights.[34]

On 3 November 2016, the High Court ruled[35] in R (Miller) v Secretary of State for Exiting the European Union that only Parliament could make the decision on when or indeed whether to invoke Article 50.[36] An appeal to the Supreme Court is due to take place on 5–8 December 2016.[37]

Other bodies

UK Parliament

There is dispute over whether the decision to invoke Article 50 is the prerogative of the government, or whether it requires Parliamentary assent.[4][5] However, Parliament will be able to vote on any new treaty arrangements that emerge from the withdrawal deal, and would have to legislate to repeal the European Communities Act 1972.[8] On 3 July 2016, the law firm Mishcon de Reya announced that it had been retained by a group of clients to challenge the constitutionality of invoking Article 50 without parliament debating it.[6][7] It is also unclear to what extent the devolved Northern Ireland Executive, Scottish Government and Welsh Government will have to be involved in the process; Nicola Sturgeon has said that the Scottish Parliament will not give legislative approval to any act to implement withdrawal from the EU.[38] Government lawyers for the group headed by Oliver Letwin have advised that invoking Article 50 is a government prerogative, but that repeal of the European Communities Act by Parliament is a prerequisite and therefore the legislature is de facto involved.[3]

On 19 July 2016, at a preliminary High Court hearing of a challenge to the government's claim that it could issue the Article 50 notification without Parliamentary approval, lawyers for the government confirmed that the prime minister would not issue any such notification before the end of 2016.[39]

Nicolas J. Firzli of the World Pensions Council (WPC) has argued that it could be in Britain's national interest to proceed slowly in the coming months; Her Majesty's Government may want to push Brussels to accept the principles of a free trade deal before invoking Article 50, hopefully gaining support from some other member states whose economy is strongly tied to the UK, thus "allowing a more nimble union to focus on the free trade of goods and services without undue bureaucratic burdens, modern antitrust law and stronger external borders, leaving the rest to member states".[40]

Prime Minister Theresa May confirmed that discussions with the EU would not start in 2016. "I want to work with ... the European council in a constructive spirit to make this a sensible and orderly departure." she said. "All of us will need time to prepare for these negotiations and the United Kingdom will not invoke article 50 until our objectives are clear." In a joint press conference with May on 20 July, Germany's Chancellor Angela Merkel supported the UK's position in this respect: "We all have an interest in this matter being carefully prepared, positions being clearly defined and delineated. I think it is absolutely necessary to have a certain time to prepare for that."[41]

Scottish Parliament

Some constitutional experts have argued that, under the Scotland Act 1998, the Scottish Parliament has to consent to measures that eliminate EU law's application in Scotland, which gives the Scottish Parliament an effective veto over UK withdrawal from the EU,[42] unless the Scotland Act 1998 is amended by the UK Parliament to reduce the Scottish Parliament's current powers.[43] After the Leave result was announced, on 26 June 2016, First Minister Nicola Sturgeon said she "of course" would ask the Scottish Parliament to withhold consent and thus block the UK from leaving the EU.[44] However, this interpretation of the 1998 Act is disputed. For example, sub-clause 7 of Clause 28 of the Act states that it "does not affect the power of the Parliament of the United Kingdom to make laws for Scotland."[45]

See also

References

  1. ↑ "Brexit: Theresa May to trigger Article 50 by end of March". BBC News. 2 October 2016. Retrieved 16 October 2016.
  2. 1 2 Cooper, Charlie (27 June 2016). "David Cameron rules out second EU referendum after Brexit". The Independent. London, UK. Retrieved 27 June 2016.
  3. 1 2 Claire Phipps and Andrew Sparrow (5 July 2016). "Letwin says government can invoke article 50 without a vote in parliament". The Guardian. Retrieved 5 July 2016.
  4. 1 2 "Leaving the EU: Parliament's Role in the Process". House of Lords Library. 30 June 2016. Retrieved 1 July 2016.
  5. 1 2 "Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 'Trigger': Parliament's Indispensable Role". 27 June 2016. Retrieved 28 June 2016.
  6. 1 2 Mance, Henry (3 July 2016). "Businesses prepare legal challenge over Brexit negotiations". Financial Times.
  7. 1 2 "Article 50 process on Brexit faces legal challenge to ensure parliamentary involvement". Mishcon de Reya. Retrieved 3 July 2016.
  8. 1 2 Unit, The Constitution (24 June 2016). "The road to Brexit: 16 things you need to know about the process of leaving the EU". Retrieved 28 June 2016.
  9. 1 2 Siddique, Haroon (23 June 2016). "Is the EU referendum legally binding?". The Guardian. London, UK. Retrieved 26 June 2016.
  10. ↑ "George Osborne: Only the UK can trigger Article 50". Al Jazeera.
  11. ↑ Henley, Jon (26 June 2016). "Will article 50 ever be triggered?". The Guardian.
  12. ↑ Rankin, Jennifer (25 June 2016). "What is Article 50 and why is it so central to the Brexit debate?". The Guardian. Retrieved 3 July 2016.
  13. ↑ "No notification, no negotiation: EU officials banned from Brexit talks with Britain". 30 June 2016. Retrieved 4 July 2016.
  14. ↑ Heffer, Greg (29 June 2016). "'It's not single market a la carte' Donald Tusk tells UK it's FREE MOVEMENT or nothing". Daily Express. Retrieved 1 July 2016.
  15. ↑ "Merkel tells Britain no 'cherry-picking' in Brexit talks".
  16. 1 2 Renwick, Alan (19 January 2016). "What happens if we vote for Brexit?". The Constitution Unit Blog. Retrieved 14 May 2016.
  17. ↑ Wright, Ben. "Reality Check: How plausible is second EU referendum?". BBC. Retrieved 14 May 2016.
  18. ↑ Henley, John (26 June 2016). "Will article 50 ever be triggered?". The Guardian. London, UK. Retrieved 26 June 2016.
  19. ↑ Staunton, Denis (23 February 2016). "David Cameron: no second referendum if UK votes for Brexit". The Irish Times. Retrieved 21 June 2016.
  20. ↑ "Brexit: David Cameron to quit after UK votes to leave EU". BBC. Retrieved 24 June 2016.
  21. ↑ "EU referendum outcome: PM statement, 24 June 2016". gov.uk. Retrieved 25 June 2016.
  22. ↑ Estelle Shirbon and Paul Sandle (3 July 2016). "Top candidates to lead Britain differ on Brexit urgency". Retrieved 5 July 2016.
  23. ↑ AFP PTI (26 June 2016). "Britain must 'quickly' announce exit from EU: Commissioner". Business Standard. Business Standard Private Ltd. Retrieved 26 June 2016. The nation must notify Brussels of its intention to avoid prolonged uncertainty, EU's economic affairs commissioner said
  24. ↑ "Statement by the EU leaders and the Netherlands Presidency on the outcome of the UK referendum". European Council. European Union. 26 June 2016. Retrieved 26 June 2016. We now expect the United Kingdom government to give effect to this decision of the British people as soon as possible, however painful that process may be.
  25. ↑ Stone, Jon (28 June 2016). "Nigel Farage Mocked and Heckled by MEPs During Extraordinary Speech". Independent. London, UK. Retrieved 28 June 2016.
  26. ↑ "Brexit: PM to trigger Article 50 by end of March". BBC News. 2016-10-02. Retrieved 2016-10-02.
  27. ↑ "Brexit: Breaking Up Amicably Is Hard to Do". The Wall Street Journal. Retrieved 11 July 2016.
  28. ↑ "Sources: European Commission Doesn't Expect Britain to Apply to Leave E.U. Before September 2017". Handelsblatt. 5 July 2016. Retrieved 5 July 2016.
  29. ↑ "Judicial review litigation over the correct constitutional process for triggering Article 50 TEU". Lexology. 13 October 2016. Retrieved 18 October 2016.
  30. ↑ "Mishcons, Edwin Coe and heavyweight QCs line up as key Brexit legal challenge begins". Legal Week. 13 October 2016. Retrieved 18 October 2016.
  31. ↑ "Brexit Article 50 Challenge to Quickly Move to Supreme Court". Bloomberg. 19 July 2016. Retrieved 18 October 2016.
  32. ↑ "Britain ratifies EU Treaty". Telegraph. 18 June 2008. Retrieved 26 October 2016.
  33. ↑ "UK ratifies the EU Lisbon Treaty". BBC News. 17 July 2008. Retrieved 26 October 2016.
  34. ↑ Government cannot trigger Brexit without MPs' backing, court told The Guardian, 13 October 2016
  35. ↑ R (Miller) v Secretary of State for Exiting the European Union (High Court of Justice, Queen’s Bench Division, Divisional Court 3 November 2016). Text
  36. ↑ Setback for Theresa May as high court says MPs must approve Brexit The Guardian, 3 November 2016
  37. ↑ "Brexit court ruling appeal date set for 5 December". BBC News. 8 November 2016.
  38. ↑ "Angus Robertson: UK facing 'constitutional crisis'". 24 June 2016. Retrieved 4 July 2016.
  39. ↑ "Brexit move 'won't happen in 2016' Government tells High Court judge in legal challenge". London Evening Standard. 19 July 2016. Retrieved 21 July 2016.
  40. ↑ "Beyond Brexit: Britain, Europe and the Pension Wealth of Nations". Pensions Age. July 2016. p. 44. Retrieved 11 July 2016.
  41. ↑ Mason, Rowena (20 July 2016). "Angela Merkel backs Theresa May's plan not to trigger Brexit this year". The Guardian. London, UK. Retrieved 21 July 2016.
  42. ↑ "Holyrood may exercise veto". The Times.
  43. ↑ Matthews, Dylan (25 June 2016). ""Bracksies": how Brexit could wind up not actually happening".
  44. ↑ "Nicola Sturgeon: Scotland could veto Brexit". BBC News.
  45. ↑ From United Kingdom European Union membership referendum, 2016: editor, Brian Taylor Political; Scotl. "Could the Scottish Parliament stop the UK from leaving the EU?". Retrieved 28 June 2016.

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