Article 50 Treaty on European Union

Unlike the US Federal Constitution, withdrawal from the EU is a legal and political option. The irrevocability of state membership of the United States was effectively determined by the American Civil War in which the United States militarily defeated the breakaway Confederate States. It was formally confirmed by the US Supreme Court shortly afterward.

On 23rd June 2016, the United Kingdom voted in an advisory referendum to leave the European Union by a margin of (approx.) 52 percent to 48 percent. Northern Ireland voted 56 percent to 44 percent to remain. Scotland voted 62 percent to 38 percent to remain. Wales voted 52.5 percent to 47.5 percent to leave. England voted 53.4] percent to 46.6 percent to leave.

Until the Treaty of Lisbon in 2007, there was no formal mechanism for an EU State to leave the European Union. The Treaty on European Union provides in Article 50 that

“any member states may decide to withdraw from the Union in accordance with its own constitutional requirements …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. The agreement shall be concluded on behalf of the Union by the Council acting by a qualified majority with the consent of the European Parliament.”

It is provided that the Treaty 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 to withdraw, unless the European Council in agreement with the member state concerned, unanimously decides to extend this period.  For the above purposes, the member of the Council representing the state concerned shall not participate in the discussions of the Council or decisions concerning it.

The Miller Case

In the absence of a written constitution in the United Kingdom, the UK Government at first sought to exercise the withdrawal as an act of the executive, using the residual state or prerogative power. This was successfully challenged in the High Court in November 2016 in the Miller case. An appeal to the Supreme Court upheld the challenge and ruled that UK  Parliament’s content was required to trigger Article 50.

The UK Supreme Court reasoned (by 8 to 3) that the European Communities Act 1972 (under which the numerous orders had been made giving effect to European Union Law) had been enacted by Parliament in which ultimate sovereignty resided and that this legislation could not be displaced through the exercise by the Government of prerogative powers alone, without an act of Parliament.

Parliamentary Authorisation to Leave

In consequence of the Supreme Court ruling, the UK Government introduced a short bill to give effect to the notice of withdrawal. This was passed by a large majority in the House of Commons but was amended in the House of Lords with a provision which seeks to protect the rights of EU citizens living in the UK after withdrawal.  The House of Commons rejected the House of Lords amendments and the House of Lords backed down, withdrawing the amendment.

The European Union (Notification of Withdrawal) Act 2017 authorised the Prime Minister to give notice under Article 50 of the Treaty on European Union, of the United Kingdom’s intention to withdraw from the European Union. On March 29, 2017, the Prime Minister by letter given to the President of the EU Council, invoked Article 50.

The Supreme Court accepted in the Miller case that Article 50 is irrevocable and thus cannot be made conditional. The Vienna Convention on the Law of Treaties provides specifically that the notification to withdraw from a treaty may be revoked at any time before it takes effect. However, the balance of opinion holds and the parties to the High Court and Supreme Court in the Miller case accepted, that the withdrawal request was irrevocable.

The United Kingdom’s withdrawal from the European Union is to take effect when the withdrawal agreement, which is contemplated, provides. Otherwise, the EU Treaties cease to apply two years after the date of notification i.e. 29th March 2019 or such later date as the European Council, (i.e. the Heads of Government) agree.

 Article 50 and New Basis for Former EU Law

The effect of Article 50 is that in the absence of a withdrawal agreement or consent to an extension, the Treaties are to cease to apply as a matter of European Union law to the United Kingdom on 29th March 2019 (may also apply to new exit date on 31 December 2020) .

The United Kingdom Government has proposed a (Great) Repeal bill to continue European Union Law in force. It will rest the existing body of EU law exclusively on the basis on this new UK legislation. The Bill proposes very extensive powers to change and modify the frozen body of European Union law,  by orders in Council or other executive or ministerial order.

The provisions of European Union law would continue to apply only so far as supported by UK law after that date. The European Union’s institutions would have no further law-making powers in relation to the UK. The European Court of Justice would have no further role in interpreting and giving effect to the legislation. The supremacy of EU law in the United Kingdom would end.

After the enactment of the  Repeal Bill, EU legislation, in particular, that which has taken direct effects such as EU Regulations would be frozen in time on the date of withdrawal, and thereafter amended by the UK Parliament or more controversially and more likely by numerous orders made under the Act’s enabling powers.



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