16th March 2017
Today the Bill giving the Prime Minister the legal power to make the Article 50 notification will be given royal assent. The Bill will become an Act.
(Contrary to popular belief, including some news outlets, the Queen does not give the royal assent in person. No monarch has done this since 1854. The elaborate process employed instead is under this 1967 Act.)
The Act will provide:
The Prime Minister may notify, under Article 50(2) of the Treaty on European
Union, the United Kingdom’s intention to withdraw from the EU.
Paragraphs 1 and 2 of Article 50 provide:
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.
So the notification leaves the (no doubt academic but still interesting logical prior) question: when exactly was the decision under Article 50(1) that the United Kingdom would decide ‘from the [European] Union in accordance with its own constitutional requirements’?
The Miller litigation largely sidestepped this issue, no doubt wisely.
(This no doubt is because a decision to notify is a more solid act (or omission) for a court to decide whether there is ‘vires’ (ie, legal power) or not.)
The Supreme Court’s appeal decision mentions Article 50(1) in passing a few times but does not (it seems to me) determine the question. But (as far as I can tell) their declaration concerns Article 50(2)
When and where can we locate the Article 50(1) decision? One needs to be taken, else what is to be notified under the new Act.
It cannot be the referendum, as that was not legally binding.
Can it be a decision under the prerogative? If so, when was that made and in which form? Has it yet been made?
Or is it the new Act, giving legal authority to make the Article 50(2) notification? Has parliament made the decision? If so, is this not rather circular?
Is the giving of the notification itself by the Prime Minister also the prior decision? Is it one and the same?
I am not suggestion anything serious rides on this question – but as a matter of constitutional law, when precisely was (or will be) the decision by the United Kingdom ‘to withdraw from the [European] Union in accordance with its own constitutional requirements’?
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