Why the Article 50 notification is important

 

25th June 2016

 “Is there any other point to which you would wish to draw my attention?”

 “To the curious incident of the dog in the night-time.”

 “The dog did nothing in the night-time.”

 “That was the curious incident,” remarked Sherlock Holmes.

– The Adventure of Silver Blaze

*

On Thursday 23rd June 2016 there was a historic referendum vote. A clear and decisive majority – though not a large majority – voted for the United Kingdom to leave the European Union.

And the following day, Friday 24th June 2016, something perhaps just as significant did not happen.  The UK did not send to the EU the notification under Article 50 of the Lisbon Treaty on European Union which would have commenced the withdrawal process.

The Article 50 process is the only practical means by which the UK can leave the EU. There are other theoretical means – which would mean effectively the UK unilaterally renouncing its treaty obligations – but as the UK wants to be taken seriously in future treaty making, such approaches would lose credibility.

And so unless and until the Article 50 process is commenced and completed, the UK will stay as a member of the EU.

In short: no Article 50, no Brexit.

It is worth taking a moment to read Article 50, as the detail of its provisions will shape what (if anything) happens next:

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 rejoin, its request shall be subject to the procedure referred to in Article 49.

You will see from Article 50(1) that it is for the Member State to make the notification.  Nobody else can: not the European Parliament, not the European Council or its President, not the European Commission, and not any other Member States.

So unless the Article 50(1) notification is made by a Member State, the provisions of Article 50 do not get triggered to begin with.

And it is entirely a matter for the Member State to choose whether to make the notification and, if so, when.

There is an interesting question as to what “its own constitutional requirements” means in the case of the UK, which does not have a codified constitution: it is the sort of thing about which a thousand constitutional law essays could be written, and no doubt will be.

In my view, it could mean the Prime Minister simply making the notification as an exercise of the prerogative, following the referendum result.  Or it could mean a prior parliamentary vote.  But in either case, it is a matter for the UK.

If it is a notification which can be made by a Prime Minister once the referendum vote result was known, then it was a notification which could have been sent yesterday.

That such a speedy notification would be made was certainly the impression David Cameron sought to give when the referendum was announced back in February:

Then there is the legality. I want to spell out this point very carefully. If the British people vote to leave there is only one way to bring that about – and that is to trigger Article 50 of the Treaties and begin the process of exit.

And the British people would rightly expect that to start straight away.

Let me be absolutely clear how this works. It triggers a 2-year time period to negotiate the arrangements for exit.

At the end of this period, if no agreement is in place then exit is automatic unless every 1 of the 27 other EU member states agrees to a delay.

If you read this carefully, you will spot that it is quite deftly worded: Cameron was not committing himself to making the notification.  It was instead something which would be “rightly expected”.  He did not promise to meet that “expectation”.

But in his (resignation) statement yesterday, Cameron said something different about Article 50:

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.

So Cameron has gone from it being “rightly” expected that the notification be made by him straight away, to it being “right” that the decision be made later by somebody else at the time of their choosing.

The fact is that the longer the Article 50 notification is put off, the greater the chance it will never be made at all.  This is because the longer the delay, the more likely it will be that events will intervene or excuses will be contrived.

There will be those who will say: of course, the notification under Article 50 cannot take place straight away – don’t you realise it is part of a process? The UK should negotiate as much as possible before the notification is made and the two year deadline is triggered.

They may have a point, but pretty soon they will perhaps become self-conscious of explaining away why the notification has not been made quite just yet.  It may dawn on such people that the notification may never be made at all.

And so long as the Article 50 notification is not made, the UK continues to be a full member of the EU as it was before the referendum took place; indeed, as if the referendum never took place at all.

The Article 50 notification also has another side to it: unless and until it is made, there is no obligation on the European Union to negotiate with a Member State about to leave.

As I set out yesterday at the Financial Times, this means there is a stand-off:

Nothing can force the UK to press the notification button, and nothing can force the EU to negotiate until it is pressed. It is entirely a matter for a Member State to decide whether to make the notification and, if so, when. In turn, there is no obligation on the EU to enter into negotiations until the notification is made. There is therefore a stalemate. If this were game of chess, a draw would now be offered.

Stalemates can last a long time.  And unless there is political will to resolve it, this stalemate will not resolve itself.

There is no indication that UK politicians – including those like Boris Johnson and Michael Gove who are possible successors to Cameron – are in any hurry to make the Article 50 notification.

It is not impossible to imagine that the Article 50 notification will never be made, and that the possibility that it may one day be made will become another routine feature of UK politics – a sort of embedded threat which comes and goes out of focus.  The notification will be made one day, politicians and pundits will say, but not yet.

And whilst it is not made, then other ways of solving the problem created by the referendum result may present themselves: another referendum, perhaps, so that UK voters can give the “correct” result, or a general election where EU membership is a manifesto issue, or some other thing.

This will not please Leave campaigners, and rightly so. It means the result of the referendum will be effectively ignored.  But that was always possible, as it was set up deliberately as a non-binding referendum (unlike the Alternative Vote referendum, which was designed to have binding effect if there was a “yes” vote, which there wasn’t).

“Of course, they will respect the popular vote. They would dare not ignore it!” is the cry.

People saying this have a good point, but they should also remember a ship which never did get called Boaty McBoatface.

*

In my view, if the Article 50 notification was not sent yesterday – the very day after the Leave result – there is a strong chance it will never be sent.

If this view is wrong, it remains the case that those with a sincere interest in the issue of UK’s membership – whether Remainers or Leavers – should keep their eyes on the Article 50 notification, regardless of noise and bluster and excuses.

As long as the notification is not sent, the UK remains part of the EU.

And there is currently no reason or evidence to believe that, regardless of the referendum result, the notification will be sent at all.

*

ESTRAGON: Well, shall we Leave?

VLADIMIR: Yes, let’s Leave.

(They do not send the Article 50 Notification.)

**

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128 thoughts on “Why the Article 50 notification is important”

  1. Article 50 applies to a state choosing to leave. Is there a mechanism by which the EU can expel a state? If so, that might be a basis for some of the “no delay” rhetoric coming from EU representatives in the last day or so

    1. In a word, no. There is no mechanism in the treaties to remove a Member State. One imagines that the institutions can try to apply political pressure for the state to leave and that is what they seem to be trying to do (although equally plausible its a negotiation tactic).

    2. No.The draft allowing tbe power to expel a member state was excluded on the principle the EU could suspend rights if the member state was in breach of Treaty obligations.

    3. Yes article 7 allows for expulsion of a member state if a popularist government, ie facist, or similar. And the member state can be seen to be maltreating its citizens or makeing discriminatory laws. If ukip ever start deporting people, that could be grounds for article 7. Obviously this would prevent any trade deals.

  2. This is a fascinating article (as always), with an intriguing conclusion which prompts me to wonder what you – and a thousand others – would have written if the Prime Minister had triggered Article 50 despite (a) indicating his intention to resign as soon as a successor has been identified and (b) the leaders of the successful side in the referendum having said, before the country voted, that Article 50 need not be triggered immediately.

  3. Reassuring words.

    The economic effect of Brexit is already underway: uncertainty is as damaging as the catastrophe itself, and it goes on for longer.

    The chaos in the markets yesterday foreshadows a long decline as everybody disinvests – ‘UK’ companies especially – and redeploys resources in the European Union.

    The political effect in Brussels, without an Article 50 notification, is predictable: there is no longer anything to be gained from engaging with with Britain in the day-to-day politics of negotiation around subsidies and regulations and regional development aid, so we are effectively expelled from Strasbourg and Brussels anyway.

    Picture, if you will, the awkward figure standing on his own at cheese and wine receptions while the conversations and the in-jokes carry on around him, ignored and cold-shouldered by the convivial and collegiate members of the Council of Ministers.

    Tomorrow he will speak in Council, or not: he has nothing constructive to say and the conversations of his betters, when they touch on his existence, are about the need to work around the possibility that he might deploy his veto.

    The legal barrier of Article 50 is real, and we have yet to cross it: but it may end up as a mere recognition of the way we live a year from now.

    1. That is why, it seems to me, the petition for a second referendum currently approaching two million signatures on the YouGov website is so important. Maybe none of our leaders will signal to Brussels that most (as I believe) of the British people wish to remain, but we the people can. And maybe, if Angela Merkel and others see that there is a will here to (re-)engage, despite our leaders, they will make it possible for us.

      1. I agree.We may have reasons in law to go for a general ectkon outside of the 5 year period stilulated by recent legislation.

      2. It’s not really sane to suggest “best out of three”.

        And it doesn’t matter how many million people take part, especially when if you press the “button” and see where the votes are coming from.

        Grow up.

  4. It is entire right that the PM, having decided to stand down in favour of someone who will steer the negotiations, does not set the 2-year time limit running before the new PM is in the saddle. It will be for her to decide whether to negotiate quietly without first notifying or to notify immediately – or the first followed by the second.

    1. Or alternatively, the new PM has been handed a poison chalice – trigger article 50 and also potentially break up the union – not what your average politician would like to be remembered for in the history books

      1. The new PM is likely to be a Brexit campaigner (probably Gove or Boris, assuming they stand), so if it is a poisoned chalice it is one of their own making

  5. Just a point on the wording of Article 50. Clearly 50.1 is not satisfied by a referendum result for “Leave”, but what if a new Conservative administration were to decide to withdraw from the EU (perhaps by Cabinet decision or by Parliamentary vote) so as to appear to satisfy the electorate, but also decided for whatever reason not to give the Article 50 notice to the European Council there and then (perhaps to take time to set up alternative trading arrangements with other countries before doing so, or just to delay the evil day as you suggest in the article)?

    Might not 50.2 be interpreted as a mandatory requirement (“A Member State which decides to withdraw shall notify the European Council of its intention …”), imposing an obligation on the UK to give the notice once the formal decision has been taken, and therefore (even in the absence of a formal Article 50 notification from the UK Government) allowing the other member states and the Commission to treat the decision itself as triggering the negotiations and the set the 2 year period running (particularly in their current mood of wishing to get the process started as early as possible)? In other words “acquis regards as done that which ought to be done” to paraphrase the equity maxim.

    While certainly not acte claire (and how long would it take for the CJEU to decide the issue!), it is possibly a point to bear in mind if the Government decided to try and both appear to satisfy the referendum electorate and delay the start of the 2 year negotiation period.

    1. Surely if 50.2 is a mandatory requirement, the EU’s only recourse would be to declare the UK in breach of the treaty and suspend our membership?

  6. Presumably this leaves the possibility open of an “Association Agreement’ where the UK remains technically/legally part of teh ‘European Union’ [also muted pre negotiation talks earlier this year] – and along the lines of the leaked document from the Germans.

    Or , secondarily, a scenario whereby a second referendum (or general election) to ratify whatever is agreed [informally with some sort of semi-binding comuniqué] has a fall back position of remaining a Member of the European Union if UK voters say no to the new deal.

    Or, or course, the powers that be have judged it apt to keep the EU hanging, for a better negotiation position, and post-elections in France and Germany..

  7. Cameron has been invited to a European Council meeting next week.
    There is no requirement stated for a letter to be sent or a form to be filled in … so … if during the meeting someone asks “Is it intention of UK to leave EU?” and Cameron says “Yes” then is the notification delivered?

    1. Exactly my thoughts. I think the clock could start ticking the moment Cameron alludes to the intention of the UK; Juncker, Tusk and Schultz could then send out their press release that negotiations that the deadline is 28 June 2018.

      1. Notification under 50.2 cannot take place until the member state has decided, under 50.1, to leave. The referendum result is advisory only and, under the constitutional requirements of the UK, the decision must be made by the Government. Until that formal decision to leave is made by the Government, nothing Cameron says or does can constitute notification to the EU under 50.2.

        1. That is right. By the UK’s constitutional arrangements surely a decision to leave can only be made through a vote in Parliament or an Order in Council?

        2. No, the constitutional requirements don’t say that the government has to make the decision. They can easily be interpreted to say the vote itself was the decision to leave, and any talk by Cameron about it to the EU is the implied notification of that decision. After all, the government has never said it doesn’t accept the result of the referendum.

      1. If he could go on holiday to Jamaica. For a while instead. And leave someone behind running the shaw without making decisions!

    2. Realising now what a clever blinder David Cameron played yesterday by swiftly handing the heavy weight of Article 50 and the numbing negotiations which ensue thereafter to Boris et al, I should imagine that his response, if pinned against the wall in such a manner would be along the lines of “as you are no doubt aware, I am no longer in a position to speak for the British people…” To which presumably the equally astute European Council members will respond that they are well aware and await formal notification i.e. Article 50 invocation from his successor… Oh all speculations and per-adventures… but at least there is a glimmer of hope that we can indeed be brought back from this edge of despair! That is sufficient for me for now….

      1. Hmm… international diplomacy would be a bit odd if you could send a representative to meetings who wasn’t authorised to represent the country…

  8. Financial uncertainty.
    Legal uncertainty
    Unreliability of Governmental promises and assurances.
    Uncertainty about key political office holders for longer periods.
    Further loss of trust in governing parties?
    Lame duck PM gives initiative to winning right-wingers. Who – short of an Article 50 notification – have the need to demonstrate “action” in line with the raised expectation of Brexit voters. For example they may look for “soft targets” among immigrant groups. A nastier more closed UK?

      1. I’m unsure, John Burows if you were asking me or Jack of Kent for permission to share. If me, then yes, of course.

        I was extremely worried especially about the possibility raised in my final paragraph: that there will be pressure on Brexit leaders to come up with interim measures which discriminate against particular groups, in order to appease members of the public who expected rapid action to initiate leaving the EU.

        Only one day later we read about Baroness Warsi telling Sky News that race hate crime organisations had reported some “disturbing early results”.
        http://news.sky.com/story/1717862/police-probe-post-brexit-attacks-on-poles

    1. Please can you clarify for me if my thinking is along the lines of what you are saying. In accordance with article 50.1, surely the commission cannot force a nation state to initiate article 50 until they are ready to do so in accordance with their own constitutional requirements. Being that the referendum was advisorary and non-binding then article 50 can not be implemented until a the bill is passed for the UK to leave the EU. So there may be a case to not push the bill through, although what kind of reaction that would receive I dread to think.
      In response to anyone that thinks those who voted did not understand what the x in the box implied I feel that I did. I was asked as a citizen of the UK if I wanted to leave the EU or remain in the EU. The majority vote suggests the will of the people is to leave the EU. The state, as a servant to the people should act upon this will. But so far all we have done is put an x in a box and voice our opinion. We have not left the EU and if some opinions are to be heeded we may not actually leave it. Does Junker have any case to be able to force us to move forward with article 50 yet when as far as I am aware our constitutional requirements are not yet in place?
      Can you really blame the leave voters for having their own opinion? Would the chaos have been reduced if Cameron attempted to lead the nation and reduce mass panic. But then again the panic only serves the remain case.
      An uneducated, 34 year old mother, with a semi-skilled job who does not feel the threat of immigration but rather the tyranny of totalitarianism.

  9. Fascinating article – thank you JoK as always.

    I get the feeling the EU is preparing to play hardball – it seems to be saying, no article 50 = no negotiations whatsoever – you are in (without even the deal from Feb 2016) until you are out and you will comply fully with all your obligations (and don’t expect any favours round the dinner table).

    Two questions (bashed out because I have work to do – sorry for haste).

    1) If article 50 isn’t triggered by the current administration (or forcibly triggered by the EU), could the main parties all pledge not to trigger it in their future election manifestos? (I’m not sure if that is a good thing or not – the potential for the ‘disappointed’ to get angry is quite real). If you want to remain in you vote for MPs who have pledged not to invoke article 50.

    2) If article 50 is triggered – might we opt for Portia’s defence from the Merchant of Venice (a pound of flesh but not a drop of blood)? Since no one appears to have defined what “Leave” actually means, might it be defined as narrowly as possible?

    For instance, does leaving the club mean handing in our membership card and stepping down from the board (no seat at the top table, no commissioners and no MEPs). If it only means that, is there an associate membership on offer: like those gym memberships when you are holiday that give you access to all the facilities but without a say in how they are run?

    Benefits: free movement, environmental protection, access to market in goods and services – inc passport for financial services.

    If so, perhaps this could be resolved in a matter of weeks not months or years. We agree to abide by all the rules and regs – we agree to pay a fee (slightly lower than previously in exchange for going quickly and quietly) – and we commit to holding another referendum in 10 years time when the next generation can decide whether they want to re-enter the club (including at that point the euro).

    We could always agree not to ask for any CAP payments (since many farmers voted for out, they can accept the consequences).

    Thank you

    Huw
    @HuwSayer

  10. Sorry but get real. This is very naive.

    1) the economic damage is done already and the longer this continues the worse it will get. The EU will not allow this to drag out as it is also damaging them. They will force this within the week.
    2) the tory party is dead and buried in the shires if they don’t follow through and they know it. They will either split into 2 or UKIP will murder them and they know it.

    Cameron and Johnson will go down as the men who put party before country and likely brought the premature end to the union. Scotland will now leave irrespective of economic consequences, I would be surprised to see NI follow them.

    The rump state will either try and negotiate a status similar to Switzerland (which wouldnt meet the main objectoves of the brexitors and will cost us more in contributions) or go it alone. If the later what chance the financial services industry ends up refocused in frankfurt and Zurich?

    What a shambles all because the tory party could never sort out its internal differences.

    Referendums are a stupid stupid way to deal with these issues. Enviably ending up as a snap shot in time with complex issues dumbed down to slogans and posters.

    1. I entirely agree. Irrespective of whatever the politicians could technically get away with, the popular press have ensured that the vast majority of the public believe they were promising a very specific thing… OUT!

      There is no turning back here unless the popular groundswell of feeling from latent remainers is so great that playing the technical card then becomes the least inflamatory thing to do.

      As you say, the cost we are going to pay for petty internal party politics.

    2. What rubbish – The Maasricht Treaty is the cause of this referendum.

      Talk of European Armies and common forign policies! Free movement, it’s Ridiculous!

      If I was so inclined and just as happened in Paris, I can move arms, weapons and people with impunity a cross the whole continent of Europe.

      The EU is not a State, it has no population or land mass. Its a ideology and just like religion when you give it bones, it grows, pervades and invades people’s lives.

      I’m not happy with the referendum, we are poorly governed. This issue should of been put to bed in 1993.

      The question that should of been asked. Do you agree to give up national sovereignty and unite with the other peoples of Europe in order to form a United States with Federal Law becoming supreme to State Law. Yes / No.

      I vote No, same result! It could of saved 23 years of silly and ridiculous arguments.

  11. No. Smart ideas, a positive contribution and I wish you would get your way on this, but this isn’t going to happen.

    Look at what major Remain campaigners have said on Twitter, look at the candidates in the last Labour election have said. Umunna, Kendall, Cooper – all have said explicitly that they accept this. Ditto Europhile Tories like Hunt and Nick Hurd. They may not like it, but Labour saw the results in Barnsley and Doncaster – they’re going to go with this.

    Further, the buy-in from Europe isn’t there. Germany’s vision is cauterisation not charm offensive. They would rather have certainty about what will happen- any certainty – than another year of going round in circles à la Grèce. And they’ve put up with years of UK opposition to many of their initiatives for Europe – isn’t, the argument goes, it better that we leave now with at least some kind of dignity than stay and light the fuse for the next explosion?

    This all keeps going round in circles. If we had a stronger economy and a strong pro-EU leader, a Blair or Thatcher (1970s model) in their pomp or someone better still, that person could pull us back from this. But no such person is currently leading a major political party. If they were, we wouldn’t be in this mess.

  12. What if the other EU countries just “deem the Article 50 to have been invoked” without waiting for Cameron or his successor to do anything?

    What could the UK actually do? Go to court and say we don’t want to go after all? This is a court which supposedly the voters have just repudiated.

  13. If Article 50 isn’t triggered, then triggering it will become the hottest issue in the next general election, with UKIP (at least) using it as their platform. At that point, it comes down to whether the anger at being ignored or buyer’s remorse at the economic chaos that’s ensued already proved the stronger influence on those who voted Leave. (And no doubt there’d be attempts to portray that chaos as the result of remaining nebulously half-in – not without cause, I have to grant, as uncertainty is a big driver of economic chaos).

  14. Oh, free caveat – I can think of one obvious Labour leadership candidate to pull this off: Ben Bradshaw. Smart, educated, speaks German, a success in his constituency, not yet publicly said what he will do about it all. I would vote for him if he emerged as the face of this. But as MP for Exeter, he is a man far removed from Labour’s heartlands.

    1. Please can you clarify for me if my thinking is along the lines of what you are saying. In accordance with article 50.1, surely the commission cannot force a nation state to initiate article 50 until they are ready to do so in accordance with their own constitutional requirements. Being that the referendum was advisorary and non-binding then article 50 can not be implemented until a the bill is passed for the UK to leave the EU. So there may be a case to not push the bill through, although what kind of reaction that would receive I dread to think.
      In response to anyone that thinks those who voted did not understand what the x in the box implied I feel that I did. I was asked as a citizen of the UK if I wanted to leave the EU or remain in the EU. The majority vote suggests the will of the people is to leave the EU. The state, as a servant to the people should act upon this will. But so far all we have done is put an x in a box and voice our opinion. We have not left the EU and if some opinions are to be heeded we may not actually leave it. Does Junker have any case to be able to force us to move forward with article 50 yet when as far as I am aware our constitutional requirements are not yet in place?
      Can you really blame the leave voters for having their own opinion? Would the chaos have been reduced if Cameron attempted to lead the nation and reduce mass panic. But then again the panic only serves the remain case.
      An uneducated, 34 year old mother, with a semi-skilled job who does not feel the threat of immigration but rather the tyranny of totalitarianism.

    1. No. The referendum has no legally binding status – it’s just advisory. As things stand it’s an entirely domestic political issue.

  15. Here’s a thought, or rather a question, on a related (legal) issue…

    Do Scotland, N Ireland and indeed Wales have a veto on the extinction of EU law in their devolved areas?

    I was put onto this by Charlie Stross’s blog at http://www.antipope.org/charlie/blog-static/2016/06/constitutional-crisis-ahoy.html.

    See also the HL EU Committee Report 11 of 2015-16, paragraphs 70-71:-

    “70. We asked Sir David [Edward, former Judge
    of the Court of Justice of the European Union and Professor Emeritus at the School of Law, University of Edinburgh] whether he thought the Scottish Parliament would have to give its consent to measures extinguishing the application of EU law in Scotland. He noted that such measures would entail amendment of section 29 of the Scotland Act 1998, which binds the Scottish Parliament to act in a manner compatible with EU law, and he therefore believed that the Scottish Parliament’s consent would be required. He could envisage certain political advantages being drawn from not giving consent.

    71. We note that the European Communities Act is also entrenched in the devolution settlements of Wales and Northern Ireland. Though we have taken no evidence on this specific point, we have no reason to believe that the requirement for legislative consent for its repeal would not apply to all the devolved nations.”

    Any views on this and its potential effects?

  16. That is why, @Nick, a second referendum is necessary with a higher pass threshold for this irreversible change, and conducted without the lies, propaganda and bluster of last week’s event. While canvassing for Remain I met a number of people who next to nothing about the EU, parroted the side of the battlebus and just regarded the whole process as a chance to kick the dysfunctional Westminster establishment, Cameron in particular. The petition that is already at 2 million signatures demands that people look at this again. A second referendum result will overwrite the first referendum result and is, if we were to have had a referendum at all, is the way the first one should have been conducted. Hopefully a new Remain result would see us welcomed back, calm EU residents’ fears and we can move forwards. Meanwhile we are hostage to the stupid way Cameron has conducted this whole affair which was really just to stop the existential threat to the Tory party and placate its media bosses. What a way to run a country.

  17. An incredibly interesting piece. LN, I too would be interested to know if the consent of Parliament would be required to trigger Article 50 – common sense implies it would be.

    Given that a second referendum could reasonably be called if there was a material change in circumstances, does the assumption that both Scotland and Northern Ireland may now break away from the UK count as a material change? Yes, it may have previously been implied, but not explicitly stated.

  18. Depends what is meant by “notification” which is not defined. It could simply be by implication – attending meetings predicated on Brexit.

  19. Hypothesis: The longer the UK government waits with its decision to trigger Article 50 (or not), the more political clout and power it will lose in the EU.

    With bonus points for incompetence if the decisive results in Scotland and Northern Ireland end up blocking the UK’s exit, because the decision to leave needs to be ratified by all parliaments, including the devolved ones.

    1. That summary omits some of the context of the question and response given at the hearing. There is a link to that in the House of Lords document. For a deeper analysis I’ve tracked down a couple of blogs discussing Scotland and Brexit by Professor Sionaidh Douglas-Scott of QMC which I’ve posted links to in a response to orbis above.

  20. Would it be possible to take legal action against Boris and Gove for telling lies? I know people who voted Leave on the basis of what they said – and now they find their vote is based on lies. Is it possible take legal action against someone who misleads or lies to you – causing you harm?

    1. I have said several times recently that as the ASA is proud of reminding us, all forms of advertising should be “legal, honest and truthful” – should this not apply to political advertising too?

      Or is the system predicated on the principle that if one campaigning entity (to be as vague/all-encompasing as possible) makes a claim, it is up to their opponents to counter that claim with arguments of their own (hence the two campaigns having access to leafleting funding)?

      Whilst the Leave campaign was notorious for the number of demonstrably untrue statements it made, the Remain campaign didn’t exactly cover itself in glory.

      Also, wouldn’t any legal challenge of this nature be seen as a challenge to the principle of parliamentary privilege?

      1. I don’t know – but would love to find out. Going onto the ASA website now to make a complaint and see what happens…

        1. https://www.asa.org.uk/Consumers/What-we-cover/Complaints-outside-remit.aspx

          “Political advertising
          All complaints of political bias in TV or radio advertising should be made to Ofcom.

          For reasons of freedom of speech, we do not have remit over non-broadcast ads where the purpose of the ad is to persuade voters in a local, national or international electoral referendum. Complaints about political advertising should be made directly to the party responsible for that advertising.”

          We rarely ever have referendum. I wonder if that was added recently in response to whats gone down? Vote leave wasn’t a political party as such… who would I complain to?

  21. In the absence of the U.K. triggering article 50, and assuming that the EU is unwilling to assert that it has been triggered de facto, we could be in a stalemate. The EU will clearly wish to resolve this quickly, but can’t force the UK to leave.

    However, can the EU take away the various pre-existing opt outs that the UK has won, for example with regard to employment regulations and even Schengen, using majority voting to over-ride the UK? Could they go nuclear and remove the budget rebate? If they can, that gives the EU a very powerful set of negotiating levers – as Leavers will find it very difficult to explain why not only have we not Brexit’d, but we are actually getting more “interference ” from Europe!

    1. No, the EU can’t remove the opt-outs as they are written into treaties and I believe there is a British veto over the form of the rebate. Indeed, the rebate money is never actually passed to EU coffers and is, in effect, just a discount.
      Of course there are plenty of ways that could be used by the EU to make life more difficult for the British government in the interim should things get fraught.

  22. As lots of people pointed out during the campaign, referenda are foreign to the British concept of representative democracy but Cameron deliberately returned Parliament’s rights (previously implicitly abrogated by us) as supreme lawgivers in the land to the electorate and he is therefore limited in his options.

    He has repeated many times that he would take the result of the referendum as an “instruction” , not as advice. So a reading of Art 50 could be that the British people have handed their notice directly to the EU without going via the government. As several commenters in this thread have noted, the EU powers-that-be like to see themselves as pragmatic, and the pragmatic interpretaton of the referendum result given the way it was set up is that the government is obliged to follow the will of the electorate. And that means starting the withdrawal process forthwith, whether or not Cameron sees himself as the person who should do so.

  23. I have changed my mind, and I now think you’ve got a good chance of being right. I also think a lot of remain campaigners will start to do the same.

    It all depends on another election of course. In that election, everything will be the other way round: the remain camp will have had time to regroup, cheer up and propose a united and honest message: you were lied to. They will also have sackfuls of funding from (most of) the City and much higher levels of credibility. The Lib Dems will probably be flavour of the month again. The leave camp will have a huge disagreement – do we leave to be Norway, with free movement and no say in the EU, or Albania, with no free movement and even less say in the EU?

    There are many ways it could fail. First and foremost, Johnson could just have the sense to say no election-and why should he when he’s won and prime minister? Or insist that we can only have an election if he files Article 50 first to bind his successor’s hands. Elite Labour opinion may continue to see Brexit as an inevitability and better done now than deferred. Lammy’s let’s-just-pretend-this-didn’t-happen plan could make the whole idea a laughing stock. Or the EU could do something stupid.

  24. Your argument leaves out the very important detail that it isn’t actually for the Prime Minister to enact Article 50. Under the UK constitution, that right lies with the crown.

    Normally the PM and the Crown are indistinguishable. But on an issue like this the difference is crucial. The decision would have to be taken as an order in council and there is a parliamentary procedure for challenging them. The opposition would certainly force a confidence vote if there was no vote on the terms.

    Nor is Article 50 the only practical route out of the EU. Once a state triggers Article 50 they lose all their negotiating leverage. So the process would be to first come to agreement on the terms and then trigger Article 50 as the means to put them into effect.

    What this means is that a second referendum on the actual exit terms is a virtual certainty. If there is any deal possible at all. And opinion on the exit isn’t static either. Farage offered everyone a pony. Now they are discovering they won’t be getting one.

    Farage himself opened the door to a second referendum when he said that a narrow loss for leave, a 52:48 vote no less! would be justification for a new referendum. Of course now he claims that only the Leave camp was allowed a do-over.

  25. Just a thought or question.
    Could a single person, a normal UK national , a MP or MEP trigger Article 50, by the people for the people on behalf of the people. As is not the UK government on behalf of the people elected by the people etc… therefore anyone who voted for exit of the EU could ask for the Article 50 to be triggered by sending a letter or asking an MEP to trigger it on our behalf, as is not a single person of a state. And part of or governed by the constitution?

  26. As an acute sufferer from post-referendum Blues, an ageing labourite living on the South Coast, and no lawyer, I have been puzzling how to bring Parliament’s apparent majority for Remain into play in this emergency. As I have a passing acquaintance with Jeremy Corbyn I have written him a letter, as below. I am sharing it here since he may never read it, and there may be experts amongst you who can point to a better way.

    ‘Dear Jeremy

    I like the statement in your letter of yesterday’s date which states inter alia

    ‘I will be making clear to both Remain and Leave voters that Labour will fight for the exit negotiations to be accountable to an open, transparent parliamentary process.’

    I would go further than that: can you not establish an open parliamentary process before the exit negotiations begin?

    it’s certainly true that you should respect the outcome of the referendum, in the sense that it gave a snapshot of public opinion on referendum night, and should guide UK policy to the EU as far as practicable: but Parliament was pretty lax in setting the terms of the referendum (when you consider the massive importance of the outcome) and didn’t set any thresholds which would determine whether its result was binding. A requirement of 50% of registered voters voting ‘out’ would have been one possibility; or a two thirds majority of votes cast would have been another. As it is people are calling it a ‘decision’ when only one third of an electorate of over 46 million voted for exit. It’s not surprising there’s a massive petition for a second referendum.

    What worries me is that the shoddily-prepared first referendum is being treated as if it overrides any interest Parliament has in the UK’s national interest (e.g retaining Scotland in the Union, preserving open borders in Ireland). Parliament has an essential interest in both these issues, and has to be satisfied that the scope of the exit negotiations can encompass solutions. Otherwise exit destroys the UK before a word is said in negotiation, or in Parliament. That can’t be right.

    The pressure is on for the UK to trigger Article 50 of the Lisbon Treaty without any reference to Parliament. This is extraordinary when the main argument for Brexit, apart from controlling immigration, is the restoration of parliamentary sovereignty!

    It strikes me that you have an amazing opportunity, in the next few weeks before the recess, to use your position in Parliament at PMQs (and at the PM’s statement on the referendum on Monday), to go on the front foot for Labour and for Parliament, in asking probing questions about the exit process. The PM is a lame duck, but that is no reason for Labour to wait lamely for his successor to turn up: instead you should try to establish Parliament’s control of the process, and its right to decide the final outcome, before the new leader arrives. Labour would gain credit in the process.

    To show you what I mean, I have cobbled together a few questions you could put at PMQ
    Does the Prime Minister share the belief of the member for Uxbridge and South Ruislip (Boris Johnson) that before Brexit takes effect it will be possible to negotiate continuing access to the European Single Market on terms that will be acceptable to HMG?
    Does he agree it would be wise to delay notification under Article 50 of the Lisbon Treaty until assurances have been obtained from the EU that this end-result is attainable?
    Will the PM make a statement to the House of his Government’s objectives in pursuing exit negotiations with the EU, and his proposals for reporting on progress against these objectives to the House?
    Will the Prime Minister undertake that his administration will not activate Article 50 without a resolution of both Houses of Parliament approving that action?

    I’m sure you get my drift, and your team will find better ways of getting the same effect.

  27. With regards to the actions of the popular press. Is there any mileage in appealing to newspaper readers who have lost money as a result of Brexit to join in a suit against said newspapers to sue for breach of contract? I understand that it is an implied term of a contract for services that anyone who holds themselves out as a professional is expected to take ‘reasonable skill and care’ in carrying out thier duties. Could it be argued that the journalists at these papers did not take ‘reasonable skill and care’ to report the facts accurately and therefore they did not fulfill thier obligation to provide a the service? I realise that it’s possibly a thin premise but maybe the news coverage would at least help to highlight to the older generations that, even on important topics such as the EU, the papers often report stories with little regard for verifying the claims of thier sources or indeed the facts in general. I bring this up because I have noticed that in conversation that if I make the point that the papers might not be reporting the facts it often comes up that ‘the law has changed and newspapers aren’t allowed to lie any more’ often with people using similar phrasing so I wonder if there are articles that have been written that could be used as evidence that these papers are holding themselves out as providing a service which they are not actually providing. It is probably fantasy, but if it were possible to get back the money of even 10000 readers for the newspapers purchased in the last year, it would have quite an effect on accuracy of repoting, which is fundamental for a function democracy.

  28. I read with interest all the above comments. I consider myself neither an expert on politics or law, but I was proud to call myself British, a citizen of the United Kingdom which I thought was a democracy. We all know politicians lie for there own means yet we still vote…..because we accept this as part of the system. I was brought up to accept that if I spat my dummy out and stamped my feet after a decision had been made it would make no difference, the decision was final. Are we now showing the younger generation that if we don’t like the result of a democratic vote we act like small children until we get our own way? So I return to my first comment…..I was proud ….was because those of you who unfortunately did not get there own way in this vote have acted not only like small children demanding there own way but have done so with such hate that they considered the vote of the older generation stupid and racist. So what next… get rid of democracy altogether and allow the bullies who shout the loudest to make the rules?

  29. ” Nothing can force the UK to press the notification button”
    Utter bollocks.
    Nothing other than the legally persued and completed democratic election process. This is a democracy. We voted. We adhere to the result,no matter how unpalatable it is to some.
    It’s happening and is going to be completed.
    Get used to it.

    1. You’re probably right Kevin that nothing can be done about it – as it would be political dynamite to go against the result. However, it is also going to be political suicide for the next PM to go through with it, and THIS WASN’T AN ELECTION, it was a referendum with specific caveats designed to ADVISE Parliament on what they should do. Cameron verbally raised the stakes (which Johnson didn’t want), so we’re pretty much now screwed – but not legally. Hence the value in kicking-up a fuss.

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  31. Just to let you know, there’s an article on Vox basically reiterating yours and some of the earlier comments regarding the possibility of Scotland’s veto

  32. Perhaps the remain leaders could be sued. For the many lies they told as reasons to stay in a bloated and unelected union of overpaid and pointless politicians. Why do we have to accept the dictacts of so called supreme court consisting mainly of foreign judges who have had no previous experience in the field of jurisprudence.

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  34. It is also worth reflecting on the Irish experience in 2008 – 2009. Unlike the UK referendum of a few days ago, the Irish were constitutionally obliged to hold a referendum on ratification of the Lisbon Treaty. They rejected it in 2008 causing an EU crisis that – in strictly constitution terms – was great than the current crisis. (As we all know, the UK referendum is not binding on the government so it is possible to proceed with “business as usual” until a UK Government is brave/foolhardy enough to trigger Article 50. In contrast the Irish referendum result was a formal roadblock to ratification of the EU’s plans).

    What happened next? After tempers had cooled down, a few more concessions were given, a new referendum was held 18 months later and the Irish approved the Lisbon Treaty.

    In my view, a similar scenario is quite likely here. After tempers have cooled, pragmatism will force the reopening of discussions between the UK Government and the EU about possible terms of exit/remaining. In the meantime, it is highly unlikely that the UK will trigger Article 50 because it will weaken the negotiation position too much. Therefore, a possible (probable) result is some further (window dressing) concessions in the long term to the UK which will remain in the EU. To act otherwise would be to take too much risk and no government will want to be held responsible for the loss of trade/plummeting pound/fractured trading relationships which will ensue from exit – not to mention the departure of Scotland from the Union which is – ironically – so dear to the hearts of many Brexiters. (It is for these very reasons that prominent Brexiters such as Boris Johnson and Michael Gove have been careful to give themselves enough wriggle room to negotiate without triggering Article 50.)

    The Irish example shows that this scenario could play out, once emotions have cooled and pragmatism comes back to the fore.

  35. A simple question from a spanish (and EU) lawyer:

    What are the UK constitutional requirements to issue Article 50 notification ?

    I would not expect Mr. Cameron giving notice of the results to the Council to be sufficient. But Article 50 appears to imply that the will of the Member State to withdraw cannot be challenged. I am curious to understand what this mean under UK law.

    I am also happily married with an english wife who sadly has been deprived of the vote after residing in Spain for more than 15 years. Is there any way the rights and views of english people living in the EU to be considered before launching this notification ?. It appears the views of a substantial number of british nationals have been ignored in all this process.

  36. “… the buy-in from Europe isn’t there. Germany’s vision is cauterisation not charm offensive. They would rather have certainty about what will happen- any certainty – than another year of going round in circles à la Grèce. And they’ve put up with years of UK opposition to many of their initiatives for Europe …”

    I disagree. The German chancellor is not known for precipitous action. Or rather, she is abundantly well known for letting things develop, often for quite a while, before she gets involved. Mrs Merkel already said in the federal press conference that she sees “no reason for everyone getting very nasty now.” (Quote is from memory, but should be fairly exact.)

    That certainly doesn’t mean there is no room at all for a bit of nastiness (note the very). I think, however, it’s fair to say that the overwhelming majority of Germans, Mrs Merkel included, are saddened by the result of the referendum and that they do not see their priority in making the British public suffer, a thing that the Brits have made very clear they’re taking care of themselves.

    Waiting and seeing how things develop in the UK may be the best cauterisation against other EU countries’ trigger-happiness that can be had.

  37. If you wish to be so legalistic with regard to Art. 50, then it has no applicability to Great Britain because Great Britain has no Constitution.

    And, pray tell, what is so fantastic about submission of your sovereignty to faceless eurocrats? Travel is easier? Convenient monetary conversion? Virtue signaling that you aren’t “racists”? What is so wrong about allowing the British to have their own homeland? I don’t see anyone daming Chad, Iran or Somalia for their lack of “diversity”. That is an incredibly short-sighted and selfish excuse to flush 1000 years of independence down the drain. You should all be terribly ashamed. I suspect

    1. And will people really be that much happier when their lives are still miserable but it appears to be due to some politicians in Westminster instead? (rather, of course than due to the sheer reality of an imperfect world)

    2. It isn’t a question of being legalistic.

      The UK (as with all countries in the world) is required to stick by treaties it signs. The UK signed up to Article 50 and therefore has no option but to go through that process. In simple terms, if the UK ignored Article 50, no country in the world would trust it to stick by any trade deals which it struck. Therefore, the UK would not (post Brexit) be able to sign treaties to obtain favourable access for its goods and services if it tried to ignore Article 50. This would be catastrophic for the UK’s prosperity.

      Of course things were different once upon a time when Great Britain (as it was then) was the most economically powerful country in the world and could more or less do as its wished with lesser parties. (I could cite a number of broken Treaties from the Victorian period in support of this.)

      But times change; a hundred years on UK is dependent on the trust of other nations to trade and compete in a global economy and cannot afford to lose its diplomatic credibility. That is the reality and there is no use pretending otherwise. So, back to Article 50 and stalemate.

  38. PS Mr Altmaier, the minister of the German federal chancellery, has just said: “This question, if and when a member country that wishes to leave does make such a proposal [notification according to article 50], has to be decided by every country on its own. … We should, in my personal view, respect this.” (Source: FAZ)

    The minister wouldn’t have made this statement on public broadcast if his opinion weren’t shared by the chancellor.

  39. Hypothetical situation for consideration by those who’ve studied this:

    Scotland runs Indyref 2, and gets a majority for independence. The EU then declares that it regards Scotland as the successor-state to the no-longer-united Kingdom, and that article 50 notification is now irrelevant; the rump UK will be out of the EU as soon as Scottish independence officially happens, and will need to apply through the usual diplomatic channels if it wants anything.

    Would that fly?

  40. The vote system illegally denied 3 million of we British citizens living outside the UK at this time – especially those living the EU – of our right to vote. The referendum vote must be discarded..Sidney Holt

  41. Would it not be a good idea to negotiate all the replacement bi-lateral trade agreements with non EU countries before ‘triggering’ Article 50?

    1. I think the assumption from Nigel Farage is that countries will be queueing at the door to negotiate trade deals with us. One of the issues with this is that we have only a limited number of experienced negotiators (I’ve seen an estimate of 25 available, primarily based in Brussels, where they work as part of the EU team on CETP and TTIP) versus a very much greater number required (one estimate of 500) to work on simultaneous deals with both the EU and non-EU countries (assuming no straightforward transfer to the EEA). All these deals tend to take years to conclude (and they might not be advantageous given we are a smaller fry with less bargaining power than the EU).

      We could also potentially lose deals we already have with external nations as part of the EU, depending on the wording of treaties (ie they are not explicitly with the UK). I’m sure the EU would not be happy for us, while still a member, to be courting other countries for an extended period before deciding it’s safe to invoke Article 50.

      It’s not quite as simple as sticking a pin in the map and saying “here we are chaps”, as Nigel Farage makes it appear; but then he seems not to care one jot about the damage here and abroad as long as we’re out.

  42. Is it fair to say that from a historic perspective the British political class would never entrust the British public with such an important decision? I assume that throughout the British history many unpopular choices were made by the parliament because it was for the good of the country. I wonder what would have happened if referendums would have been held during the world wars when Britain already lost so much, and the chances to win were bleak

  43. I’m curious to know what you make of the next sentence in 50 (2).

    “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.”

    There is nothing here about how and when the Council will provide “guidelines”, nor what these guidelines should cover – how detailed must they be, what freedom of movement the negotiating team will have and so on. But the wording is imprecise – use of the definite article might lead one to think that these guidelines already exist; if they do not, surely there should be some indication of how they will be determined.

  44. An excellent blog and a fascinating discussion.
    Forgive me if this question as been answered previously (or is too obvious to require an answer). Once a state provides the required formal notice of its intention to withdraw, can it subsequently retract that notification and continue-on as before? From what I read in the press, the EU has made it clear that there will be no negotiations to remain, only to withdraw.

    1. According to David Pannick in The Times, http://www.thetimes.co.uk/article/why-giving-notice-of-withdrawal-from-the-eu-requires-act-of-parliament-dz7s85dmw, and a simple reading of the text of Article 50, there is no possibility of stopping withdrawal once the Decision has been Notified. This claim has been disputed in ensuing correspondence, but it’s fairly obvious that the commission and most EU states would want to read it as meaning that notification was irrevocable.

      The (political) reason for this is that to allow any state to trigger Article 50, negotiate for a time and then give up would encourage others to follow. It is crucial to the stability of the union that these games cannot be played. (And it is crucial to the UK’s negotiating position that for once our politicians try to imagine what they would do if they were on the other side of the table, and plan accordingly.)

  45. Like many, I smelt a Rat from the beginning…

    It seems to me that Mr Cameron and his best chum, Mr Johnson; did a deal prior to the EU Vote as Mr Cameron thought he had the whole thing ‘in the bag’ afterall; who would have ever believed of such a result of the EU vote going the wrong way, right?

    Even the bookies had him as a sure winner!

    And Mr Johnson’s motivation to comply to such a plot? > No.10. Afterall, how could Mr Cameron possibly lose right?

    He and Johnson figured a way in which to appear at ‘odds with each other’ on the Brexit issue when in reality, they were all in it together from the start.

    Mr Cameron was riding on on air, going out in blaze of glory at the next GE – or at least so he thought.

    They successfully played the Media, blinded the Pollsters into thinking they were at war when in reality, they both were feathering their own nests (politically speaking).

    Cameron and friends never, in their wildest dreams placed any consideration on the British Public having ideas of their own and as a result of this conceited ideology, they were buried in their own deceit and lies.

    Soon after, Mr Johnson ‘woke up’ to the reality that in fact that ‘Joe Public’ saw through the charade and BOOM!

    I can only hope that when article 50 is invoked, they (Civil Servants) write the document in such a manner that we (UK) are not subliminally tied to conditions that we will not be able to recede!

    Oh yes, Mr Cameron will be remembered alright by the Historians…but moreso by the UK Public for being such a liar who was caught out!

    No wonder his voice broke in his resignation speech!

    ‘Evil only prevails when good men fail to act!…’

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