This post has been contributed by Professor Andrea Biondi, Module Convenor for EU law.
In June this year, the British public voted to leave the European Union (EU) in a landmark referendum. The result took many by surprise, not least the UK government, who are now faced with navigating an unprecedented withdrawal from a Union that has informed the domestic legal machinery for the last 43 years. As the Brexit aftermath plays out, some of the consequences are emerging, but we are mostly left with questions as to what the economic, political and legal landscape will look like after the (in) famous article 50 of the Treaty on European Union (TEU) has been triggered.
Article 50 sets out the procedure by which a Member State (MS) can withdraw from the EU. It is somewhat vague, as it merely provides for a set of procedural rules but does not say anything about the substantive conditions of withdrawal. The three essential procedural steps are (1) the notification of withdrawal; (2) the negotiation of a withdrawal agreement; (3) either the conclusion of such an agreement or – failing that – automatic exit of the withdrawing Member State. Article 50(1), moreover, states a Member State may decide to withdraw from the Union ‘in accordance with its own constitutional requirements’. The interpretation of such an expression has given rise to fierce legal debate.
In Miller -v- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) the sovereignty of Parliament, constitutional law and democracy were at issue. The judges agreed with the claimants that the scope of Government powers (the Royal Prerogative) is not wide enough to cover triggering article 50 because withdrawal would change domestic law and effectively remove or limit the rights created by EU law. Thus intervention of the Parliament is always necessary. The government appealed, and the case is currently before the Supreme Court (UKSC). We wait for this pivotal judgement with bated breath.
One issue that may arise in the case before the UKSC is whether article 50 is irrevocable. In Miller, the government did not challenge the claimants’ assertion that it is. If the point arises before the UKSC there is a strong legal argument that they will be forced to refer the question to the Court of Justice of the European Union (CJEU), see this blog. This would probably delay the Court’s decision beyond March 2017, leading to more political instability.
The High Court judgement was met with a malicious reaction in some of the press (here) that led to some very robust defence of the role of the courts. Lord Hope a former Law Lord branded these attacks as ‘ bad for democracy and in danger of diminishing the independence of the judiciary’.
The Miller case is really about the sovereignty of Parliament. Withdrawal from the European Union would affect a myriad of rights and allowing the executive to proceed without consulting Parliament is a dangerous prospect. Parliament would have a limited role in the negotiation process once the notification has been served and the pressure to complete the process within two years means that Parliament will not be in a strong position if it decides to reject the agreement reached. There is a sad irony in the use of direct democracy to wield more executive power.
Article 50 will be triggered by the end of March 2017, so claims Prime Minister Theresa May while this looks unlikely it is difficult to predict anything. What we can be sure of is that the impact of article 50, triggered or untriggered, will have consequences ranging further than the withdrawal of membership in the European Union.
Para 3 article 50 goes on to say ‘unless the European Council, in agreement with the member state concerned, unanimously decides to extend this period [2 years].’ Interestingly it does not give a time limit to the extension and therefore the negotiation could go on indefinitely. My interpretation of this is that it is wrong to say that there is a strict limit of 2 years to the negotiation and then you are out regardless of any agreement being reached.