Monday, 25 July 2016

Brexit - now let the legal arguments commence

As readers will by now be aware Article 50 is a notification to the European Council that a member state intends to withdraw from the EU.  However, there are two pieces of legislation that deal with this:  first the European Communities Act, 1972 which means that any legislation created by the EU automatically becomes part of UK Law.  As an Act of Parliament, it can only be reversed by Parliament.  Article 50 of the Lisbon Treaty is the statement of the process of withdrawal and, because it is a treaty obligation controlled by international law it can be exercised by the Government under its Royal Prerogative without recourse to Parliament.  Given this 'constutional arrangement, we now have a wonderful opportunity for legal chaos.  Here is why:  legal Advice sought and received by the House of Lords is firm in its opinion that Article 50 is reversible.  Given that, any state declaring under Article 50, has two years to negotiate a deal and at that point would be deemed to have withdrawn.  Here is the text of Article 50:

A member state that decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

The key point to note here is that a declaration under Article 50 is only a statement of intent to withdraw - it is not the act of withdrawal.  The advice given to the House of Lords was provided by:  Sir David Edward KCMG, QC, PC, FRSE, a former Judge of the Court of Justice of the European Union and Professor Emeritus at the School of Law, University of Edinburgh; and Professor Derrick Wyatt QC, Emeritus Professor of Law, Oxford University, and also of Brick Court Chambers.  This is what their advice said (taken from Busines Insider, July 21, 2016): 

We asked our witnesses whether it was possible to reverse a decision to withdraw. Both agreed that a Member State could legally reverse a decision to withdraw from the EU at any point before the date on which the withdrawal agreement took effect. Once the withdrawal agreement had taken effect, however, withdrawal was final. Sir David told us: “It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government.” Professor Wyatt supported this view with the following legal analysis:
“There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a State withdraws, it has to apply to rejoin de novo. That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind.”
... There is nothing in Article 50 formally to prevent a Member State from reversing its decision to withdraw in the course of the withdrawal negotiations. The political consequences of such a change of mind would, though, be substantial.

Given this, any state could serve notice of intention to withdraw under the Royal Prerogative but would only be able to actually withdraw at the end of two years if, and only if, Parliament agreed to repeal the 1972 Act.  If Parliament refused to do that, then presumably the Government would be forced to reverse its decision under Article 50, otherwise, we would be in the ridiculous position of not being a member of the EU whilst still being bound by EU law under the continuing 72 Act.   It is bizarre but entirely feasible that the UK government declared under Article 50 and entered into a lengthy negotiation resulting in an agreement (say) to stay within the single market with a 7-year emergency break on EU migration into the UK.  The Tory 25 MP's who will only accept 'hard-Brexit' (a state of affairs where the UK - or at least England and Wales - is unmoored from Europe and dragged into the middle of the Atlantic Ocean), side with the opposition parties and Parliament refuses to repeal the 72 Act.  The Government, then in a legal bind, is forced to reverse its position and announce that the UK no longer wishes to withdraw under Article 50.

There is no doubt that Article 50 was a hastily constructed and ill-thought-out addition to the Lisbon Treaty.  As it will be the first time it will be tested there is bound to be a long and difficult legal process to sort out how a state can actually withdraw from the EU.  What fun, popcorn futures might be a great investment at the moment.

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