Rose Slowe: Article 50 Notice and Implied Conditionality

7 April 2017 by Guest Contributor

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 Further, there are compelling legal arguments as to why such notice can be unilaterally withdrawn once given.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)