Andrew Agnew is an LL.B. (Hons) Dual Qualifying Scots & English law graduate of the University of Dundee. Having specialised in European Union law at Honours level, Andrew submitted his dissertation on the interpretation of Article 50 in March 2015, being awarded a 1st Class for the thesis. Outwith academia, Andrew has undertaken placements in Brussels, Westminster, the Civil Service and local government.
Today marks the beginning of the long, unprecedented and tumultuous journey to fulfil the referendum mandate delivered by the people to politicians on 23rd June 2016: The United Kingdom is withdrawing from the European Union.
Following a high-profile judicial battle through the High Court and concluding with the Supreme Court’s judgement in R (Miller) v Secretary of State for Exiting the European Union[1], that parliamentary consent is required before the Executive can trigger Article 50 of the Treaty on European Union, ‘Brexit’ is a public lawyer’s dream. The legal implications and requirements of Article 50, alone, should not be underestimated.
Articulating Article 50
Article 50 has five subsections. Theresa May has already undertaken the first subsection of Article 50, with assistance from their Lordships’ judgement in Miller, that a Member State may “withdraw from the Union in accordance with its own constitutional elements.”[2] This was provided through June 2016’s referendum and the European Union (Notification of Withdrawal) Act 2017 which was given Royal Assent on 16th March 2017.
Today, Theresa May completes the next step in the Article 50 saga – the United Kingdom shall notify the European Council of its intention to withdraw from the European Union, per the requirements of Article 50(2).[3] This will be in the form of a written letter to be delivered to the Council, followed by Mrs May providing a statement to the House of Commons in the afternoon informing Parliament and setting out the aims and future relationship the British Government wishes to negotiation with the European Union. European Council President, Donald Tusk, will respond to the UK’s withdrawal notice within 48 hours of it being received. This response will be expected to include the guidelines and framework for negotiations.[4] Article 50(2) also establishes that a potential Withdrawal Agreement will be negotiated in terms of Article 218(3) of the Treaty on the Functioning of the European Union – this deals with negotiations between the EU and third parties.[5] Any Withdrawal Agreement will be concluded by the European Council, acting by a qualified majority, and after the agreement of the European Parliament.
One myth that has stemmed from the recent attention on Article 50 is the ‘two-year deadline’ to negotiate a Withdrawal Agreement. This is not completely factual. Article 50(3) states that membership “shall cease to apply…from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification…unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”[6] Membership, and the EU Treaties, shall cease on the date that any negotiated Withdrawal Agreement comes into force. Article 50(3) does not stipulate that a Withdrawal Agreement must be reached within two years; only that if no agreement is reached then membership shall cease two years to the date that the withdrawal notification is issued to the Council. UK politicians have been repeatedly, and wrongly, stated that withdrawal will take two years – due to the complexity of withdrawal, this is extremely unlikely. This myth is perfectly highlighted in the Daily Telegraph’s recent article entitled What is Article 50? The only explanation you need to read, where it states that “The process is supposed to take two years but many people believe that it could take longer.”[7] Article 50 is silent on the duration of withdrawal negotiations, only that if no Withdrawal Agreement is to be reached then the membership ceases after two years. However, this can also be postponed if an agreement to extend the period of negotiation is reached between the Council and the UK.
Article 50(4) prohibits the UK from participating “in the discussions of the European Council or Council or in decisions concerning it.”[8] This clearly establishes that a notification to withdraw from the EU, under Article 50, provides a semi-transition for the UK from a Member State to a third party, for the purposes of all decisions and matters relating to the withdrawal. The United Kingdom can still participate in the work of European Union in all other areas, although it is unlikely that the UK Government will continue to participate in votes of the European Council.
Following the ‘termination’ of the UK’s membership of the EU if Mrs May, or any future British Government, were to follow David Cameron’s recent utterance on Arnold Schwarzenegger’s snapchat of “I’ll be back”[9], they could reapply for membership of the EU under Article 50(5) which allows for former Member States to return under Article 49. However, if the UK were to reapply following withdrawal, this would not come with the current opt-outs and preferential treatment that has been provided under our current membership…
Concluding Remarks
“…there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know.”
Donald Rumsfeld, 13th and 21st United States Secretary of Defense
12th February 2002[10]
It has been 280 days since the United Kingdom voted to leave the European Union. Today Prime Minister Theresa May will trigger Article 50 of the Treaty on European Union.
This “we know, we know.”[11]
The United Kingdom will immediately begin work to negotiate a Withdrawal Agreement with the EU. However, there is no guarantee of a successful Withdrawal Agreement being concluded and there is currently no guidelines as to how a Member State can leave without one.
This is a “known unknown.”[12]
Lastly, the terms of a potential withdrawal agreement, post-Brexit UK-EU commitments and Britain’s future relationship with the international community cannot be predicted, even amongst legal commentators.
This is an “unknown unknown.”[13]
References
[1] [2017] UKSC 5
[2] Consolidated Version of the Treaty on European Union [2012] C 326/13, art 50(1).
[3] BBC, ‘Article 50: Theresa May to trigger Brexit process next week’ (BBC, 20 March 2017)< http://www.bbc.co.uk/news/uk-politics-39325561>, last accessed 23 March 2017
[4] Cynthia Kroet, ‘Donald Tusk: EU to respond within 48 hours of Brexit notification’ (Politico, 8 March 2017) <http://www.politico.eu/article/donald-tusk-eu-to-respond-within-48-hours-of-brexit-notification/>, Last accessed 23 March 2017
[5] Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47
[6] Consolidated Version of the Treaty on European Union [2012] C 326/13, art 50(3)
[7] Michael Wilkinson, ‘What is Article 50? The only explanation you need to read’ (The Daily Telegraph, 23 March 2017) <http://www.telegraph.co.uk/news/0/what-is-article-50-the-only-explanation-you-need-to-read/>, Last accessed 23 March 2017
[8] Consolidated Version of the Treaty on European Union [2012] C 326/13, art 50(4)
[9] Helena Horton, ‘‘I’ll be back’: David Cameron speaks in Arnold Schwarsenegger Snapchat video’ (The Daily Telegraph, 3 February 2017) <http://www.telegraph.co.uk/news/2017/02/03/back-david-cameron-speaks-arnold-schwarzeneggersnapchat-video/>, Last accessed 23 March 2017.
[10] Donald Rumsfeld, ‘Department of Defense News Briefing’ (The Pentagon, Virgina, 12 February 2002) <http://archive.defense.gov/transcripts/transcript.aspx?transcriptid=2636> last accessed 30 March 2016.
[11] [Ibid]
[12] [Ibid]
[13] [Ibid]