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

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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.

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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.

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ESTRAGON: Well, shall we Leave?

VLADIMIR: Yes, let’s Leave.

(They do not send the Article 50 Notification.)

**

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Five legal points about the Leave victory

24th June 2016

1. The EU referendum result, by itself, has no legal impact.  It was an advisory not a mandatory referendum. (See my FT post here.)

2. All UK law – including that drawn from the EU  – remains in place today just as it was yesterday. Nothing in yesterday’s result affects the applicability or enforceability of any UK or EU law.

3. The legally significant thing is not the referendum result but any Article 50 notification.  There is no indication any UK politician is in any rush to press that “red button”.  Once pressed, that will give a two year period before the UK leaves the EU (unless EU Member States unanimously agree otherwise).  Any fundamental legal change as a result of the Leave vote will not (and cannot) be until 2018 at the earliest.

4. It is perfectly possible the Article 50 red button is never pressed – for example if there is a “new deal” and a second referendum.  There is, after all, a tradition of EU-related referendums being repeated in Member States until there is the “correct” answer.

5. On available information, there is no plausible legal challenge to the referendum result.

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How to ban referendums: the Referendum Banning Act 2016

21st June 2016

Here is my modest proposal for a short Act of Parliament for banning referendums.  You will see how it would make such a ban irreversible.

 

Referendum Banning Act 2016

1. The holding of a referendum is hereby prohibited.

2. This Act can only be repealed by a referendum.

That should do the trick, shouldn’t it?

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The UKIP MEP using Brussels privilege to frustrate a UK court process and an Act of Parliament

23rd May 2016

In a High Court judgment handed down last week we have the splendid irony of a UKIP MEP using the privileges of the European Parliament so as to stay a case in the English courts where the court is applying an Act of Parliament.

The case is one about libel damages and the statutory provision is that which governs “offers to amend” under the Defamation Act 1996.

One would think that this is exactly the sort of Brussels interference with national legal sovereignty – the court process and the effect of primary legislation – that UKIP would be against.

But no.

 

POSTSCRIPT

This was tweeted by the MEP as she actively sought the European Parliament privilege which meant UK law would not apply to her.  Compare the date of the tweet with the dates in the postscript of the judgment.

 

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Law and policy round-up: Theresa May’s call for the UK to leave the ECHR

26th April 2016

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech yesterday which included a call for the United Kingdom to leave the European Convention on Human Rights.

The speech is set out in full at ConservativeHome, and (as it appears to be a statement on behalf of her department) it is also now on the Home Office site.

The statement is, of course, more about the politics of Brexit and succession to the Tory leadership than anything serious about law and policy.  It is a sort of counter-balance to her position on the UK remaining in the European Union.

For a number of reasons, not least that the Good Friday agreement requires the ECHR to have continual legal effect in Northern Ireland, this demand will go nowhere.

(I set out the seven hurdles for repeal of the Human Rights Act and for UK leaving the ECHR – including the problems presented by Northern Ireland and Scottish devolution –  in a post here last May.)

Given the office Theresa May holds, it is worth taking a moment to look at the Northern Ireland point, for the UK to leave the ECHR would require the UK to reopen and renegotiate the Good Friday agreement.

Any change to the agreement would, in turn, require fresh referendums in Northern Ireland and the Republic of Ireland.

It would also risk alienating the nationalists who accepted the Police Service of Northern Ireland only as long as it was subject to the ECHR.

It is, in all, a remarkable demand for a serving Home Secretary to make, and it is also extraordinary for the Home Office to post the statement on their own site as if it is government policy – and here it should be noted that policy on the Human Rights Act is (supposedly) under the Ministry of Justice, and not the Home Office.

This does not seem thought through. One suspects the Home Secretary does not realise (or does not care) about the implications of the UK leaving the ECHR – perhaps her desire to send a political signal to Tory back-benchers and the popular media is too great.

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A word-switch, not a phrase-insertion: “back of the line” is an Obama rhetorical staple

23rd April 2016

The contention is being (seriously) made that President Obama’s use of “back of the queue” in a speech about Brexit shows that the phrase was inserted by his UK hosts.  This contention rests on “queue” not being a word Americans use. They use the word “line” instead.

Politicians, like all of us, tend to use rhetorical staples. And a quick search of Obama’s public statements over the last few years shows that “back of the line” is indeed one of his rhetorical staples. He seems to have used it nine times since 2013.

And not only has he used it in formal speeches, but in unscripted press conferences. It is a phrase he readily uses, and if you look at the examples, he uses it to make similar points to the one being advanced in his Brexit comments.

So all that needs to be explained is not the insertion of the phrase, but a switch of a word.

It is a word he is recorded as using anyway.  The word switch may well be his own, or from his advisors or script writers. Who knows.

But all that needs any special explanation is the word, and not the phrase.

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The Boaty McBoatface Party

20th March 2016

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“The British public are trying (and succeeding) to have a £200 million boat named Boaty McBoatface.” (A viral tweet)

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This is not a party-political blog – there is good and bad, and liberal and illiberal, in all main UK parties.

But domestic politics, especially in Westminster, seem to be in a state of chaos.  The Conservative Government, in the days after Duncan Smith resigned, is imploding; Labour provides no effective Opposition; and the post-Coalition Liberal Democrats are a discredited irrelevance.

Shambles everywhere.

One may well sneer at American Trumpery – but we can’t be that far off having a similar ‘anti-politics’ mood here.

It would then just take a charismatic genius to start a populist, say, Boaty McBoatface Party and our political class would be buggered.

The usual barriers to populist extremism in UK politics – the parliamentary system and first-past-the-post voting – are not absolute protections.  It is not inevitable that populists will somehow always be kept away from power.

Ultimately, democratic politics is about legitimacy – particular politicians exercise power when it is legitimate for them do so, and those politicians in turn obtain (and lose) power within a wider system which has its own legitimacy.

But legitimacy – like any other form of belief – can disappear when minds change.

Unless the main parties get their respective acts together, then there is no inherent reason they will be the parties which the greater number of voters will vote for.

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Estragon’s boot: the Conservatives delay the repeal of the Human Rights Act

27th February 2016

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Estragon, sitting on a low mound, is trying to repeal the Human Rights Act.

He pulls at it with both hands.

He gives up, rests, tries again.

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According to a news report today, the Conservative government has “shelved” the proposals to repeal the Human Rights Act and replace it with a “British Bill of Rights”.

This is not a surprise. It was never going to be an easy task.

In the last week or so, the proposals – as well as a daft and dappy “Sovereignty Bill” proposal – have been nothing other than tokens in a political game between the Prime Minister and other Conservative politicians about supporting and opposing Brexit.  But the tokens turned out to have no value and no purchase in this game.

Last May this blog set out the “seven hurdles” for repeal of the Human Rights Act.  These hurdles included the facts that the Good Friday Agreement requires the European Convention on Human Rights to have local effect in Northern Ireland and that Scotland would have a veto on the replacement legislation.

These were real hurdles, and they could not be wished away in a game of tokens.

The hurdles are still there.

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The Human Rights Act is not likely to be repealed this Parliament.

Even if the Conservatives could agree on the proposals, and somehow had solutions to the problems presented by Northern Ireland and Scotland, the parliamentary arithmetic is against them: it is an issue which divides the Conservatives and would unite the opposition parties in both houses.

The Act is not a perfect piece of legislation, even for supporters of human rights law.  It actually does not do a lot which could not be done by courts drawing on other, domestic case law; but it does enough.

And the Conservatives have begun to realise that it is not worth the time and the effort of repealing and replacing it.

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Estragon with a supreme effort succeeds in pulling off his boot. He peers inside it, feels about inside it, turns it upside down, shakes it, looks on the ground to see if anything has fallen out, finds nothing, feels inside it again, staring sightlessly before him.

“Nothing.”

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With apologies to Samuel Beckett.

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Being neutral about Brexit

20th February 2016

I used to be a Eurosceptic and in large part I remain one; I am now just as wary of the bullshit from Westminster and Whitehall as I ever was of the bullshit from Brussels.

There is a lot for a small “l” liberal to dislike about the European Union.

Whatever “internationalist” credentials it has, they are off-set by its protectionalism against the rest of the world.  Its decision-making and policy-making have no transparency, and nobody seems ever responsible for anything. There is nothing “democratic” in any meaningful sense about any part of the EU which has genuine power. [**]

And, as I set out in the New Statesman in 2012, the EU has the habit of taking the credit for what has been achieved by other international arrangements, such as NATO and the ECHR.

It has always seemed strange that the big “l” and big “d” Liberal Democrats ever found anything liberal or democratic about the EU.  Perhaps it is all behind the scenes (which rather defeats the point).

But those (supposedly) in favour of UK “sovereignty” are often full of bullshit as well.

The current prime minister promotes the sovereignty of parliament whilst, in practice, encouraging departments to push through as much legislation as possible (and certainly not just EU-related legislation) as statutory instruments and other secondary legislation, which will rarely have any proper scrutiny.

In the UK, especially in England, most legislation is executive-driven, and at speed; the parliamentary stages are as much ceremonial window-dressing as the royal assent.  Even legislation which affects fundamental rights is just forced through, and only then if officials cannot get away without legislating.

And it is next-to-impossible to shift the public policy of any government department. Whoever wins the general election, the same senior civil servants (and those who influence them and have access to them) remain.  Things rarely change, as ministers come and go.

It is all an illiberal and undemocratic mess.

The only sensible response, it seems to me, is to strengthen the rights of the individual against the “state” – whether it be domestic or EU – both in being able to challenge decisions and laws in the courts, and to have access to a transparent policy-making process.

And so it is difficult to care ultimately about Brexit.  Both sides are alarmist, and both can pick out the weak spots in the other side’s positions whilst being blind to their own.

This is why this blog is neutral – as long as UK remains part of NATO and the ECHR.

It is not that I don’t know or care about UK and EU law and policy – I follow it all carefully and even advise on both domestic and EU law. I just cannot see what real difference the result will be from a liberal perspective. The illiberal – and undemocratic – misuses of public power will remain.

And to those in favour of Brexit who say ‘at least it will be “our” politicians who will make the decisions, and we can turn them out’, I reluctantly reply that this may be mere sentimentality. One can wish this is true, but sadly it is not.

In practice, policy-making and law-making in Whitehall and Westminster is just as illiberal – and undemocratic – as it is in Brussels and, if you take liberalism seriously, there is nothing to choose between them.

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**An earlier version of this post made a statement about the EU’s accounts not being signed-off by auditors; I have been told this is a “zombie fact” and so I have deleted it whilst I look at it again.