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Article 50 – How do we Brexit?

After the referendum there’s been a lot of speculation on how we invoke Article 50 of the Treaty of Lisbon. Article 50 (see below) is the provision for a member state to leave the EU. 

Article 50

Here is Article 50 of the Lisbon Treaty. It helps to know what it is before giving an opinion. 

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which 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.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49

Invoking Article 50

The key part for how we invoke Article 50 is (1). It needs to be a deliberate act by our Government that the UK constitution recognises. This is important, primarily because the referendum wasn’t it, because it’s legislation didn’t make it binding on the government. That’s not to say that the government is free just to ignore it, that would be political suicide. 

 The UK does have a constitution, but unlike every other nation in Europe you can’t just point at a document. The British Constitution is spread over dozens of pieces of legislation and with case law and precedent sprinkled on top. So even our constitutional experts disagree on what we need to do to invoke Article 50. 

The crux of the problem is that we are in the EU because of an Act of Parliament. Foreign policy, especially treaty negotiating, is usually done using Royal Prerogative. As you would expect there are limits on the use of Prerogative powers. Specifically the Prerogative cannot be used to overturn an Act of Parliament. Where this becomes a problem is Article 50 (3) which provides for automatic exit without agreement. So triggering Article 50 using Prerogative powers could directly lead to an Act of Parliament being overturned.

However, there are several interpretations of the situation 

  1. The PM can invoke Article 50 using Prerogative powers and Parliament will act afterwards to amend or repeal the relevant Acts when the negotiating is done.
  2. Parliament needs to vote on a motion authorising the government to trigger Article 50 (similar to declaring war).
  3. The Queen could announce the intention to withdraw at the State Opening of Parliament along with the Bills being brought forward.
  4. Parliament needs to amend the 1973 European Communities Act to give government powers to withdraw.

There are likely more permutations than that. However they are the ones I’ve heard most. Apart from the idea of a second, binding, referendum. 

What is Reasonable?

Good question. I’m not a lawyer, but I do watch what the government does quite closely. I’ve also got a bit of understanding of Judicial Review processes. The test is whether a reasonable person, presented with the same evidence, could have come to the same decision. So I’ll try that here. 

Some key assumptions 

  • Politicians like to be re-elected more than they like to be right
  • Government likes to minimise the chance of a successful legal challenge 
  • We’re looking to leave the EU rather than avoid triggering Article 50

Given those assumptions, the most likely option is 2 above. It covers the parliamentary sovereignty issue but also time limits the inpact of Parliament. It will all be done in a day, rather than the drawn out process of primary legislation. 

Most likely the new Prime Minister will table a government motion for invoking Article 50 in October. The pragmatic option is not to whip the vote, but members of the government would vote for it. Other MPs could vote as it appears to them their constituents demand. Although most MPs are against leaving personally I believe a small majority would support the motion. The rationale for this is that those MPs want to continue after the next general election, and they won’t want to be seen as against the will of the people that they represent. 

London MPs, Scots MPs and the non Unionist NI MPs will all vote against, as might the Lib Dems and many Labour. However most constituencies will have a majority for leave given the 52:48 splisplio with the govt all voting for, and the MPs voting the way their constituents went, it should pass. 

Once it does the constitutional Gordian knot is well and truly sliced in two.

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