Article 50: where are we now?

Law and politics are separate things, and they do not often overlap.  It is rare that politics is driven, or even shaped, by legal process or any legal issue. But it does happen sometimes, and it is happening in the United Kingdom at the moment.

The legal issue is about a provision in a European Union treaty known as Article 50, which deals with Member States leaving the EU. The provision has a binary nature, in that the provision is either invoked (or activated, or whatever verb you want) or it is not. That is a legal question. If the provision is invoked, then there are certain legal consequences, and if it is not invoked then there are not those legal consequences.

Until a couple of weeks ago few people in the UK, and almost no politicians or pundits, knew or cared about Article 50.  What was important for them was instead something which had no real legal significance (even if politically significant), a non-binding referendum on whether the UK should remain part of the EU.  That referendum also had a binary nature: you either voted Remain or Leave.  As it happened, a couple of days ago, the clear (if not large) majority of voters voted Leave.

Now a problem in UK politics comes from a mismatch – a disconnection – between the result of the referendum vote and the invoking of Article 50. One has not automatically led to the other, and it may not do so.

The supporters of Remain campaign did not think about this, because they thought they were going to win.  But the supporters of the Leave campaign also did not think much about this, as it seems they regarded winning the referendum as an end in itself to bring about their desired “Brexit”.

It appears that few if any people involved in the campaigns on either side thought about what would come next in the event of a Leave vote.

On the day the result of the referendum became known, the Prime Minister David Cameron did not do something, and I believe the omission was significant (I have discussed this here).

In essence, Cameron did not invoke Article 50: no notification was sent to the European Union.  In my view, the failure to send the notification on the very day after the referendum will mean that there is a strong chance it will never be sent at all.

Since the referendum result there has been considerable media and political discussion and speculation about Article 50.  This post examines a few of the contentions which have been made about Article 50 – in particular the first two paragraphs of the Article – and sets out whether they seem good points or bad points.

The best place to start is the provision itself.  Article 50 contains a sequence of stages which are separated out as numbered paragraphs.  I will set out the Article as a whole, and I will then go through paragraphs one and two in particular.

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.

So, to begin with, let’s look at paragraph one of Article 50:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

What does this mean? I think there are two key elements to this.  The first is “decide” and the second is “in accordance with its own constitutional requirements”.

The reference to “decide” is crucial. It means there has to be a decision.  Without a decision, nothing else follows. It is the Marley’s Ghost of Article 50.

The provisions which come afterwards in Article 50 do not even become engaged unless there is a decision.

So what is a decision?

In my view a decision in a UK context may be one of a number of things:

– a decision by the Prime Minister in accordance with the “royal prerogative” (that is, in accordance with the legal fiction that the Prime Minister can exercise powers on behalf of the Crown);

– as above, but the decision being made by the Prime Minister either in consultation with his or her cabinet, or after a vote of cabinet (or conceivably the same but with consulting the Privy Council instead);

– a decision by the Prime Minster following a resolution or motion in either House of Parliament or by both houses;

– a decision not by the Prime Minister but one embedded somehow in a new Act of Parliament (or a special statutory instrument or “order in council”), or a decision made in compliance with an existing statutory or similar regime; or

– any of the above following consultation with – or even the consent of  – the devolved governments of Scotland, Wales, and Northern Ireland.

Any of these would be a decision for the purposes of Article 50(1). And each would be decision it would be fair and plausible to say is “in accordance with [UK’s] own constitutional requirements”.

The UK does not have a codified constitution.  Some would say it has not got a “written constitution” (though my view is that the UK constitution is (largely) written down, it is just not written down in one place; it is instead spread out over many texts and legal instruments).

But what the UK constitutional does not have, at least not in any explicit way, are prescriptive “constitutional requirements” – where one could point to a text and say: A-ha! That is how to make a decision to exercise a power under an existing treaty!

Without such a helpful provision, one can only look at how formal decisions can be made by those with political power in the UK, and the five examples set out above seem to all meet the Article 50(1) wording: they are “decisions” made “in accordance with [UK’s] own constitutional requirements”.

What does not meet the Article 50(1) wording, either as a “decision” or something made “in accordance with [UK’s] own constitutional requirements” is the mere result of a non-binding referendum.

The referendum on EU membership was advisory not mandatory. It was deliberately drafted by Parliament not to have any legal consequences.  (The last UK-wide referendum, on the AV voting system, did have such a binding provision, but this time Parliament chose not to include one).

As such, the result of the poll has no more legal standing than the result of a consultation exercise.  It was a glorified opinion survey, and that is what Parliament intended it to be.

The result is not a “decision” for the purposes of Article 50(1) and, on this basis, the other provisions in the provision are not engaged.

(For more on this, see this excellent post by Professor Mark Elliott.)

In my opinion, it could have been open to the Prime Minister on Friday, either on the basis of the royal prerogative or after involving the cabinet or the Privy Council, to have made the “decision”.  It was not even a decision to enter a new international treaty but to exercise a power within an existing one; in other words, it is the sort of decision a Prime Minister can usually make.

When the Prime Minister chose not to make that decision, that was a matter for him; and he in turn said it is a matter for his successor.

There is also a point about the devolved governments of Scotland, Wales, and Northern Ireland.  If the governments of any of the devolved states chose to (somehow) formally to object to the Leave decision then that opens the issue of whether the decision to Leave “in accordance with [UK’s] own constitutional requirements”.  

This is not to say there would be a legal bar – but in an un-codified constitution, force is given to “conventions”, as well as laws.  It would seem that many believe it is arguable that there is a convention at play here – that there should be consent by the devolved governments, even if not an absolute legal requirement.

As Article 50(1) talks vaguely of constitutional requirements”  it seems to me that a convention may be as capable of being a constitutional requirement as any statutory provision.

In other words: say if the Scottish government chose to formally object to a Leave proposal then it may make it harder to make out that the “in accordance with [UK’s] own constitutional requirements” element of Article 50(1) has been satisfied.

This is not (strictly) a legal point – as Professor Elliott explains in another post – but I still think it can still be significant in terms of Article 50(1): for if a convention is breached then a constitutional requirement cannot have been met.

But in any case, it certainly will be significant in terms of politics.  Not a formal veto perhaps – but important.

We now come to Article 50(2):

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.

Remember this paragraph only even matters if there has been an Article 50(1) decision – if there is no decision, Article 50(2) falls away.  In effect, we don’t get past the fifth word of this rather wordy paragraph.

But it is not the fifth word which has been much-discussed over the last couple of days; it is the ninth – “notify“.

Once a decision has been made – which is not the case – then the decision shall be notified: there will be a notification.

What is a notification?

It has been suggested (including by those who should know better) that there could be a notification by accident or by informal means – a situation of “whoops I made a notification“.  This could be by the mere presence of the Prime Minister at a council meeting, or by an admission of the referendum result, or even one imposed upon the UK by another Member State or organ of the European Union.

Much of this speculation is utter twaddle.

The thing about words in formal legal document is that they must mean something and cannot mean anything.  A “notification” – especially of something which would have fundamental and (it would seem) irreversible legal consequences – is not something to be taken lightly, but should be taken reverently and responsibly in the sight of any number of lawyers.

In particular, the notification would have to be (a) formal and (b) intended to be communicated: that is what “notify” means.  There has to be no doubt (or room for doubt) as to what the statement means and that it was intended to be communicated as such.

One would think this was obvious.  But this has not stopped the “all depends” mongers coming with ingenuous hot-takes on what “notification” means.

But in any case, a spokesperson for the European Union has now put it beyond doubt:

“The notification of Article 50 is a formal act and has to be done by the British government to the European Council,” the spokesman said. “It has to be done in an unequivocal manner with the explicit intent to trigger Article 50.”

Indeed.  There will be no “whoops we notified the Council”.

The spokesperson’s statement also expressly confirms what was the position all along: that the if and when of the Article 50 notification is entirely a matter for the UK government.

It is up to the UK whether to make the notification and, if so, the timing of it.  This in turn means that the notification may never be made.

There is nothing – nothing at all – which the EU can do at law to force the UK to make that notification.

It may be an irony, but this is what sovereignty looks like.

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