What is sufficient to constitute an Article 50 decision to leave the EU?

This blog post is by senior lecturer Scott Styles.

The UK stands on edge of the momentous decision to leave the EU. It is therefore vital that the true meaning of Article 50 is understood. In particular it is my contention that this cannot be triggered by the decision of the PM or cabinet but only by Act of Parliament.

Article 50 begins by noting:

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

There are two essential elements here. Firstly, only the State which wishes to leave may make such a decision. Secondly, authority to make such a decision must be “in accordance with its own constitutional requirements.” So this in turn leads us to consider the requirements of the British Constitution. (Article 50 then goes on to say “A Member State which decides to withdraw shall notify the European Council of its intention.” The issue of notification is a matter not considered in detail here.)

In Britain it is Parliament which is sovereign, not the Prime Minister or even the whole Cabinet. The UK entered the EU by means of the European Communities Act 1972. The repeal of an Act of Parliament may only be done by a subsequent Act of Parliament to that effect. As the effect of an Article 50 notification is to trigger a two year timeline at the end of which that even UK would automatically cease to be an EU Member State that would be to nullify the effect of the 1972 Act as a matter of EU law. But as a matter of British law a statute may only be repealed by another statute. It therefore follows as a matter of British law that to have sufficient authority a Prime Minister would need that authority of an Act of Parliament to that effect giving him the authority to make an Article 50 notification and prospectively repealing the 1972 Act with effect from two years of making the notification.

To be clear, I do not think the authority of the House of Commons alone would suffice. What is needed is a statute passed by both Houses of Parliament (Lords and Commons) plus subsequent Royal Assent. There is of course the not insignificant issue of the pro Leave decision in the referendum of 23 June, but whilst that is politically very significant it is not legally enough. To comply with the EU legal requirement of a request “in accordance with its own constitutional requirements” a Prime Minster needs to get an Act through both Houses. As both Commons and Lords contain large Remain majorities this may prove challenging for any Prime Minster to obtain.

There is no doubt that a refusal by Parliament to give effect to the decision of a referendum would cause huge public outcry, even a constitutional crisis, but that crisis would be political not legal. There is already some evident of “buyer’s remorse” and that many Leave voters regret their decision or that many who abstained regret abstaining. There are two possible ways to square the political circle of a Remain Parliament defying the “will of the people” expressed in the recent referendum.

The first, and easiest, would be for Parliament to pass an Act authorising an Article 50 notification and repeal of the 1972 Act but to make the coming into effect of that Act conditional on it being approved by a post-legislative referendum.  There is a strong precedent for such a provision in the Scotland Act 1978. Indeed some might even go so far as to want to a 40% of the electorate rule as well as was found in the 1978 Act, although I personally think that would be going to far.

The second way to establish if it really is the “settled will of the British people” to leave the EU would be to hold a General Election (subject to the operation of the Fixed-Term Parliaments Act 2011) on the express issue of EU membership with every candidate declaring where they stand on the issue of EU membership. This might even result in candidates standing as “Labour/Conservative/LibDem Leave/Remain” candidates. If a pro Leave majority was returned then obviously such a Commons would happily pass an “Article 50 Act” and the Lords would be obliged to defer to the Commons on application of that Salisbury Principles.

There is also the argument that the consent of the devolved assemblies is needed, but this is a constitutional novelty. (This argument has not attracted the unflinching support of constitutional lawyers, or indeed a prominent Scottish National Party politician.) The strength of the argument I am advancing is that it rests on the classical Diceyan understanding of the British Constitution.

Scott describes himself as “a mere private lawyer”, but he hopes this blog post might add something to the emerging debate around Article 50. Further analysis of Article 50, and Parliament’s role in relation to it, can be found at the UKCLA blog and by David Allen Green.

Editor’s note: the initial title of this blog was “What is sufficient to constitute an Article 50 notification to leave the EU?” It was edited on 28 June 2016 to change “notification” to “decision”.

 

 

Advertisements

15 thoughts on “What is sufficient to constitute an Article 50 decision to leave the EU?

  1. Clicky Steve June 28, 2016 / 12:21 pm

    Interesting stuff, but you’ve overlooked the Royal Prerogative, which is what Cameron seemed to be intimating he would use before the vote. There’s no need for Parliament to pass or repeal anything to give the Article 50 notification sadly.

    Like

  2. Clicky Steve June 28, 2016 / 12:22 pm

    Interesting stuff, but you’ve neglected to mention the Royal Prerogative, that it was widely understood would be used in this case. There isn’t a need for Parliament to pass anything for Article 50 to be invoked, sadly.

    Like

  3. Clicky Steve June 28, 2016 / 12:48 pm

    Damn, looks like I double posted my comment… Sorry!

    Like

  4. Scott Styles June 28, 2016 / 1:12 pm

    The Royal Perogative is used for international treaties. When Heath signed Treaty of Accession in January 1972 that was an international treaty. But when subsequently Parliament passed the European Comminities Act 1972, commons into force in 1/1/73 Community law became part of UK domestic law and no longer subject to the Perogative.

    Domestic law is subject to the Courts and the sovereignty of Parliament.
    If the executive trigger Article 50 they would be acting ultra vires for two reasons.

    Firstly, community law is domestic law and so not subject to the pergogative.

    Secondly, an Act of Parliament can only be revoked by a subsequent Act to that effect. Once Article 50 us triggered there is an automatic count down to end of UK membership of EU. If this happened without an act of Parliament that would lead to the absurd position that as a matter of domestic law the UK was still a member of the EU even though as a matter of EU law we would have been expelled. So as the de facto and de jure consequences of an Article 50 application would be to revoke ECA 1973 it seems to me that that is a violation of the sovereignty of Parliament. Such a blantant violation of the British grundnorm of Parliamentary sovereignty would be fully justiciable in both UK courts. Also because it would violate Article 50 (1) it would be justiciable before CJEU. Any interested party: MP, devolved govts, private citizens would have suffice locus standi to raise such an action and so whole Article 50 would be stopped pending judicial decision.
    That is legal argument but as a political argument it seems to me that British Sovereignty is a key principle of Brexit supporters and that means Sovereignty of Parliament I do not see how politically any Brexit minded Goverment could contemplating violating that sovereignty they hold so dear by trying to “Go 50” without first obtaining the consent of Parliament by enacting the prospective repeal of ECA 1973.

    Like

  5. scott June 28, 2016 / 10:05 pm

    Is there any law in place that would cover The General Public being deliberately misled by senior politicians in the lead up to a referendum/election.? It surely cannot be legal to make bold claims in the run up , and then immediately after the result distance yourself from such claims saying they were a ‘mistake’.

    Like

  6. Anders Smyth June 29, 2016 / 11:41 am

    You shouldn’t put yourself down as “a mere private lawyer”. This is a good set of musings on the issue. You did very well.

    Like

    • scott June 30, 2016 / 7:20 pm

      Is there any legal route to follow if the electorate has been misled or lied to , in order to secure votes in a uk or scottish referendum. since the result was announced prominent leave campaigners have sought to distance themselves from any pledges or promises made. Now i know this appears to be common place during elections but i do feel strongly that in this referendum it has been plainly obvious the uk public were lied to. Can it be ‘legal’ to win by these means. Any information would be greatly appreciated.

      Like

  7. Thomas Lam July 13, 2016 / 11:58 am

    I read the following news article

    “A separate group of lawyers advising the British government has said the prime minister does not need parliamentary approval to start the process. The government has also rejected a petition for a second referendum.”

    Do you know what the next step for the lawyers after submitting the letter to parliament?

    The conservatives seems to be adamant that they do not require parliament approval, and brexit means brexit?

    Cheers for this news article

    Like

  8. Donald Rennie July 14, 2016 / 3:33 pm

    As has been correctly identified, Article 50 of the Lisbon Treaty provides that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

    The reference to “constitutional requirements” is intended primarily to relate to states that have a written constitution. In the United Kingdom we are fortunate not to have a written constitution so that our “constitutional requirements” can vary flexibly to meet changing political circumstances.

    The classical argument is that the enforcement of treaties or their repudiation is a matter for the royal prerogative but that the United Kingdom’s membership of the E.U.was achieved by the European Communities Act 1972. An Act of Parliament trumps the royal prerogative and therefore another Act of Parliament is required before Article 50 can be triggered.

    But legislation is already in place to allow notice under Article 50 to be given. The legislative authority for the referendum to have taken place is the European Union Referendum Act 2015.

    Section 1(1) of that Act provides, “A referendum is to be held on whether the United Kingdom should remain a member of the European Union.”

    Nothing is said in the Act that to suggest that the Referendum is advisory only. The clear meaning of the Act is that Parliament has legislated that direct instead of representative democracy would decide whether the UK would remain in the Union or would leave it.

    The people voted by a majority of over a million to leave the EU. From this it follows that the Government has received a mandate from the people to give notice under Article 50 and no further legislative action is required.

    The European Communities Act 1972 and much subsequent legislation will require to be repealed but that is nuts and bolts and does not affect the fundamental principle that the people have decided in accordance with the delegation to them enshrined in legislation

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s