So much has changed since the United Kingdom voted to leave the European Union on 23 June. The Prime Minister has resigned, Boris has decided to spend more time with his hairdresser and the shadow cabinet is but a shadow of its former self. Even the England manager has resigned after a European exit all of his own.
And yet at a bigger level nothing has really changed at all. We are still members of the European Union. We are still paying our contribution (and receiving funding in return). European law still applies and we can still go to the European Court of Justice to enforce it.
It appears that negotiations will not even start until the government has triggered Article 50, the provision in the EU Treaties which permits a Member State to leave – and the government currently appears to be in no hurry to do so.
Article 50 states that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. It goes on to say that “a Member State which decides to withdraw shall notify the European Council of its intention…”.
Once that notification is given, it triggers a two year process for negotiating the terms of withdrawal. If no agreement is reached within that period then (unless it is extended by unanimous agreement) “the Treaties shall cease to apply to the State in question” meaning that in effect it is out of the European Union with no agreement as to its future relationship or trading arrangements.
Considering the enormous impact of the process of withdrawal, Article 50 is quite brief and somewhat lacking in clarity. Perhaps this was deliberate, maybe the uncertainty was designed to discourage any Member State from triggering the process. Or perhaps the Article was included for political comfort to show that it was in theory possible to leave the European Union, but without any real belief that any Member State ever would.
Already the provisions of the Article are giving rise to some heated debates.
For example, is the decision to trigger the process solely in the hands of the United Kingdom now that the referendum has resulted in a vote to leave? David Cameron chose not to trigger Article 50 immediately, saying instead that the timing should be a matter for his successor. This led to debate about whether in fact the United Kingdom was now compelled by Article 50 to notify the Council because, via the referendum, it had “decided” to withdraw.
Like so many good legal arguments, this turned partly on the meaning of the word “shall” – does it imply “must”? It also raised the question of what is meant by “decides” – did the referendum, which was legally non-binding, constitute a decision by the United Kingdom or merely an instruction from the electorate that this was the decision that it wanted the United Kingdom government to make in due course? There was even some speculation about whether Cameron could “accidentally” trigger Article 50 merely by mentioning the referendum result at the European Council meeting held last week.
It does now seem to be accepted by all sides that the decision on when (if?) to trigger Article 50 rests solely with the United Kingdom (and that it has to be done formally, so no danger of the Prime Minister doing it by accident!). The other Member States and the EU Commission might want it to happen sooner rather than later, and might encourage or pressure the United Kingdom to get on with it, but they cannot force it to do so.
Although some of the leading Leave figures, such as Andrea Leadsom, appear to favour triggering it as soon as possible, other potential successors to Cameron such as Theresa May and Michael Gove, along with most on the Remain side, seem inclined to wait. The biggest danger of triggering it early is that the two year clock starts to run, potentially weakening the United Kingdom’s bargaining position, especially when it still seems very unclear what kind of outcome we will actually want from the negotiations.
Another question raised by Article 50 is more of an internal one for the United Kingdom. What are, in the words of the Article, our “own constitutional requirements”? Who actually has the power to trigger the mechanism? Is this something which the Prime Minister alone can do (presumably after getting the approval of the Cabinet) in exercise of the Royal Prerogative? Or does it require the approval of Parliament? One of the arguments for the latter is that our membership of the European Union, and the applicability of the Treaties and European Union law, is enshrined in the European Communities Act 1972. The argument runs that if the government took the decision to withdraw without parliamentary approval, this would be a breach of the 1972 Act and therefore invalid. Again the point is made that the referendum result does not itself technically have any legally binding force. The eminent QC Lord Pannick has already given an opinion stating that he believes that the approval of Parliament would be necessary before Article 50 may be validly triggered. The significance of this is that the majority of MPs were in favour of remaining (and the members of the House of Lords possibly even more so) and so such approval cannot be guaranteed, although most MPs do seem to be of the view that the referendum result must be respected. On the other hand, some argue that since the 1972 Act brought the Treaties into our law, they also brought Article 50 into our law, thus empowering the government to invoke it.
Over the weekend, the city law firm Mishcon de Reya has announced that a group of its clients have instructed it to seek a ruling from the courts to the effect that such parliamentary approval is indeed required and to stop the government taking action without first securing such approval. Lord Pannick is to conduct the case on their behalf.
The Financial Times writer David Allen Green (Twitter: @DavidAllenGreen) has written extensively on the issues surrounding Article 50, and his thoughts are well worth reading for anyone interested in the topic. Interestingly, his view prior to the referendum was that if Cameron did not trigger Article 50 immediately in the event of a Leave victory, then the likelihood was that it would never be triggered, a view that he seems to hold with increasing conviction as time has gone on since the result. He writes from a neutral perspective on the Leave/Remain question itself.
A final question arising from Article 50 (for the purposes of this post at least – there are bound to be many more!) is what happens if we trigger it and then don’t like what is on offer from the other Member States when the withdrawal terms are being negotiated? If we don’t want to risk reaching the two year deadline with no agreement in place, can we withdraw our notice of withdrawal? The Article is silent on the point. And would the government feel comfortable leaving the decision on that question to the European Court of Justice…?
The fact that even the mechanism for telling the European Union that we want to leave raises so many difficult issues is the clearest possible demonstration of the legal and political minefield which lies ahead, whichever side of the Leave/Remain debate one favours. One way or another, this will affect all of us. At Gardner Leader, we will be doing our best to keep up with the issues over the days, weeks, months and years ahead and giving our clients as much guidance as we can.