Rose Slowe: Article 50 Notice and Implied Conditionality

7 April 2017 by

England Europe

More substantive than the 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), which was passed by Parliament on 13 March, the Prime Minister’s 6 page letter of notice, issued under Article 50 TEU, is lacking in one crucial respect. This post asserts that, as a matter of UK constitutional law and in accordance with the EU Treaties as well as customary international law, conditionality should be inferred into this notice. Such conditionality manifests in the requirement of domestic Parliamentary approval at the end of the Article 50 negotiation process.

On Wednesday 29 March, shortly after the UK’s Article 50 notice had been delivered to Donald Tusk, Theresa May told the House of Commons that it was a ‘historic moment from which there can be no turning back’.

That premise is disputed. As a matter of law, it is far from certain that notice issued under Article 50(2) is indeed irrevocable. Further, there are compelling legal arguments as to why such notice can be unilaterally withdrawn once given. The arguments in favour of revocability are difficult to dispute, finding their basis in the UK constitution, EU Treaties and international law.

Article 50(1) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The Supreme Court confirmed in Miller that, as a matter of UK constitutional law, only Parliament can authorise, and give effect to, changes in domestic law and existing legal rights. The majority held that the European Communities Act 1972 has rendered EU law a source of domestic law, and now that it has acquired that status, getting rid of it is a matter for Parliament and not ministers relying on the relics of the Royal prerogative.

The Notification Act, enacted in response to Miller, fails to satisfy this constitutional requirement as it merely permits the Prime Minister to give notice under Article 50(2). As set out in the so-dubbed Three Knights Opinion, the only way that the Act could serve as the legislative basis for the UK’s withdrawal from the EU is if it was ‘read as an exceptionally wide enabling law, handing to the Executive power to decide which legal rights may be given away or lost through negotiations with the EU, or by leaving the EU without an agreement.’ To do so would fly in the face of the Supreme Court’s ruling in Miller, in which paramount constitutional importance was placed upon express statutory authorisation.

It follows that, pursuant to Parliamentary sovereignty and the principle of legality, statutory authorisation will be required to give legal effect to the UK’s decision to leave the EU upon conclusion of Article 50 negotiations, once the terms of Brexit are known.

Current concessions by the Government regarding Parliament’s role at the end of the Article 50 process fall short of meeting the UK’s constitutional requirements. Promising that Parliament will have ‘a vote’ on the terms of withdrawal negotiated with the EU does not meet the need for statutory authorisation as set out in Miller. Parliament passing the proposed ‘Great Repeal Bill’ is also insufficient. First, it will prove incapable of transposing all rights currently enjoyed under EU law, some of which are incapable of replication at domestic level. Second, pursuant to Miller, Parliament’s role is not merely to give legal effect to whatever ministers negotiate on the international plane. While the Government’s White Paper asserts that Parliament will determine the content of the legislation, its scope and substance will largely be pre-determined by the terms of any agreement reached with the EU, or lack thereof.

If, as argued above, an Act of Parliament at the end of the negotiation process is a UK constitutional requirement, it follows that Article 50 must be read as allowing a decision to leave the EU to be conditional on that requirement being satisfied and, by extension, unilaterally revocable if this constitutional requirement is not subsequently satisfied at the domestic level.

The conditionality and revocability of notification under Article 50 was not raised in Miller as an issue requiring determination. It was common ground between the parties that Article 50(2) notice could not be qualified or withdrawn once given, and the Court chose to proceed on this agreed assumption. The failure to raise or address the issue was indisputably politically motivated as opposed to stemming from an absolute consensus on the interpretation of Article 50 (see my earlier blog post on this issue).

The assumption of irrevocability appears to stem from a strict textual interpretation of Article 50(3), which specifies that ‘The treaties shall cease to apply to the State in question… two years after the notification referred in paragraph 2’ (emphasis added), with only an option for bilateral extension of the negotiation period provided. However, there are compelling counter arguments as to why Article 50 ought to be interpreted so as to permit notice to be given in conditional terms and to be unilaterally withdrawn once given.

First, analysis of the text of Article 50 suggests that revocation is permissible. Pursuant to Article 50(1), a decision to withdraw must be in accordance with the Member State’s constitutional requirements, however, for the reasons set out above, these requirements cannot necessarily be satisfied at the time when notice is given. Article 50(1) and (2) should therefore be read concurrently as opposed to sequentially, meaning a Member State’s constitutionally compliant decision to leave the EU does not have to be effective before notice under Article 50(2) is given. This is supported by the language of Article 50(2), namely the use of ‘intention’ and the present tense ‘which decides’, rather than ‘has decided’. The absence of any provision precluding revocation indicates that this is otherwise permitted. In addition, Article 50(5) addresses the situation where a Member State has withdrawn from the Union but later changes its mind and asks to re-join, but there is no comparable provision for a Member State that changes its mind prior to withdrawing indicating that no formalities apply and membership status is simply retained. In evidence given to the House of Lords Select Committee on the European Union in March 2016, Professor Derrick Wyatt noted that it would be illogical if a Member State was not allowed to change its mind and revoke its notice after a year of thinking about it, but before it had withdrawn, as it would then have to wait another year, withdraw and subsequently apply to join again.

Second, it would be incompatible with the EU Treaties for Article 50 to have the effect of ejecting a Member State against its will, or contrary to its own constitutional requirements. Article 50 is a mechanism for voluntary withdrawal, not expulsion. It is, in fact, inconsistent with the fundamental principles and aims of the EU for a Member State to be expelled. Even Article 7 TEU, the most nuclear sanctioning mechanism the EU has at its disposal, stops short of ejecting a Member State found to be in breach of the Union’s founding values.   Further, Article 50 is premised on respecting a Member State’s constitutional requirements. If, in accordance with its constitution, a Member State changes its intention to withdraw, it would be inconsistent with the Treaties’ integrationist rationale and their emphasis on shared democratic values for Article 50 to be interpreted so as to not permit this.

Third, international law and practice warrants consideration. Almost all supranational organisations require a ‘cooling off’ period between announcement and effective withdrawal, thereby providing a timeframe within which the withdrawing state can change its mind. In addition, Article 65 of the Vienna Convention permits a party to give notice of withdrawal from a treaty, which Article 68 provides may be revoked at any time before it takes effect. This law of treaties influenced the development of Article 50, and the latter therefore ought to be interpreted compatibly with the former.

Fourth, when interpreting Treaty provisions the consequences must be born in mind. As Professor Craig explains, to read Article 50 as not allowing for the possibility of substantive change in circumstances in a withdrawing Member State within the negotiating period would potentially give rise to severe consequences.

While a change in domestic circumstances seems like a remote political possibility at present, what about two years down the line? Scotland could hold a referendum in which its independence option is made subject to the contingency that the UK has not revoked its Article 50 notice. The economic impact of leaving the EU on the terms of the agreement offered during Article 50 negotiations, or lack thereof, may have become clear. The infeasibility of the promises made by the Leave campaign in the lead up to the referendum could have come to light. The far-reaching social implications of Brexit – from food standards to workers’ rights – might be made apparent. One must also not overlook the fact that there will be a change in the electorate; those who were too young to vote in 2016 will have become eligible, and many of those in the predominantly leave older demographic will have passed. A general election or a second referendum is not beyond the realms of possibility, and a difference in public and/or Parliamentary opinion ought not to be ruled out.

The question then arises as to the consequences if the constitutional requirement of Parliament’s express statutory approval is not satisfied upon conclusion of Article 50 negotiations. The Three Knights Opinion contends that, if Parliament is unwilling to consent to the negotiated agreement, or approve of withdrawal without any agreement in place, the notification issued under Article 50(2) would either lapse or could be unilaterally withdrawn. In such circumstances Article 50(3) would not automatically expel the UK as no Member State can be forced to withdraw otherwise than pursuant to a voluntary decision taken in accordance with its own constitutional requirements.

If follows that, as a matter of law, one must read the UK’s notice of intention to withdraw from the EU as containing an inferred clause of constitutional compliance conditionality. To do otherwise could have the effect of the UK being expelled from the Union in contravention of its unwritten constitution, the EU Treaties and customary international law and practice.

 

Rose Slowe is a Research Intern at the Bingham Centre for the Rule of Law and is co-author of Greer, Gerards and Slowe, Human Rights in the Council of Europe and European Union: Trends Challenges and Achievements (Cambridge University Press, to be published 2017)

1 comment;


  1. Fraser says:

    Keith,

    Maybe you know someone who would like to read this. Personally, I don’t care if a reversal of Brexit is legally possible — since it’s pretty obviously politically impossible.

    Muriel

    ________________________________

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: