United Kingdom invocation of Article 50 of the Treaty on European Union
On 29 March 2017, the United Kingdom (UK) invoked Article 50 of the Treaty on European Union (TEU) which began the member state's withdrawal, commonly known as Brexit, from the European Union (EU). In compliance with the TEU, the UK gave formal notice to the European Council of its intention to withdraw from the EU to allow withdrawal negotiations to begin.
The process of leaving the EU was initiated by a referendum held in June 2016 which resulted in 52% voting in favour of British withdrawal. In October 2016, the British prime minister, Theresa May, announced that Article 50 would be invoked by "the first quarter of 2017".[1] On 24 January 2017 the Supreme Court ruled in the Miller case that the process could not be initiated without an authorising Act of Parliament, and unanimously ruled against the Scottish Government's claim in respect of devolution. Consequently, the European Union (Notification of Withdrawal) Act 2017 empowering the prime minister to invoke Article 50 was enacted in March 2017.
Invocation of Article 50 occurred on 29 March 2017, when Tim Barrow, the Permanent Representative of the United Kingdom to the European Union, formally delivered by hand a letter signed by the prime minister to Donald Tusk, the president of the European Council in Brussels.[2] The letter also contained the United Kingdom's intention to withdraw from the European Atomic Energy Community (EAEC or Euratom). This means that the UK was scheduled to cease being a member of the EU at the end of 29 March 2019 Brussels time (UTC+1), which would be 23:00 on 29 March British time.[3][4] This was extended by two weeks to give the Parliament of the United Kingdom time to reconsider its rejection of the agreement on withdrawal conditions, particularly in the House of Commons. The UK was due to leave the EU at the end of 12 April 2019 (24:00 Central European summer time; 23:00 British summer time), however a further "flexible" extension was granted until 31 October 2019 after talks at the European Council meeting on 10 April.[5] After another extension in October 2019 and subsequent negotiations, a withdrawal agreement was negotiated in late October 2019 and ratified by both parties in January 2020: consequently the UK left the EU at 23:00 on 31 January 2020 and entered the transition period.
Background[edit]
The first ever invocation of Article 50 of the Treaty on European Union was by the United Kingdom, after the Leave vote in the 2016 referendum on the United Kingdom's membership of the European Union.
When David Cameron resigned in June 2016, he stated that the next prime minister should activate Article 50 and begin negotiations with the EU.[6]
At the time of the invocation of Article 50 the United Kingdom had been a full member state of the European Communities / European Union since its accession on 1 January 1973, some forty-four years earlier.
Views on invocation[edit]
Necessity of invoking Article 50[edit]
The British government stated that they would expect a leave vote to be followed by withdrawal, not by a second vote.[7] In a leaflet sent out before the referendum, the British government stated "This is your decision. The Government will implement what you decide."[8]
Although Cameron stated during the campaign that he would invoke Article 50 straight away in the event of a leave victory,[9] he refused to allow the Civil Service to make any contingency plans, something the Foreign Affairs Select Committee later described as "an act of gross negligence".[10]
Unlike the Parliamentary Voting System and Constituencies Act 2011, which contained provisions for an "alternative vote" system which would have become operative only if approved by the voting result in the referendum held under the Act,[11] the European Union Referendum Act 2015 did not state that the government could lawfully invoke Article 50 without a further authorising Act of Parliament.
Following the referendum result, Cameron announced before the Conservative Party conference that he would resign by October, and that it would be for the incoming prime minister to invoke Article 50.[12] He said that "A negotiation with the European Union will need to begin under a new Prime Minister, and I think it is right that this new Prime Minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU."[13]
After a court case, the government introduced a bill that was passed as the European Union (Notification of Withdrawal) Act 2017.
Article 50 process[edit]
Article 50 provides an invocation procedure whereby a member can notify the European Council and there is a negotiation period of up to two years, after which the treaties cease to apply with respect to that member—although a leaving agreement may be agreed by qualified majority voting.[14] In this case, 20[a] remaining EU countries with a combined population of 65% must agree to the deal.[16] Unless the Council of the European Union unanimously agrees to extensions, the timing for the UK leaving under the article is the mandatory period ending at the second anniversary of the country giving official notice to the EU. The assumption is that new agreements will be negotiated during the mandatory two-year period, but there is no legal requirement that agreements have to be made.[17] Some aspects, such as new trade agreements, may be difficult to negotiate until after the UK has formally left the EU.[18]
Renegotiation of membership terms[edit]
Negotiations after invoking Article 50 cannot be used to renegotiate the conditions of future membership as Article 50 does not provide the legal basis of withdrawing a decision to leave.[11]
On the other hand, the constitutional lawyer and retired German Federal Constitutional Court judge, Udo Di Fabio, has stated[19] that
Pre-notification negotiations[edit]
Prior to the British Government's invocation of Article 50, the UK stayed a member of the EU, had to continue to fulfil all EU-related treaties including possible future agreements, and was legally treated as a member. The EU has no framework to exclude the UK—or any member—as long as Article 50 was not invoked, and the UK did not violate EU laws.[27][28] However, if the UK had breached EU law significantly, there were legal venues to discharge the UK from the EU via Article 7, the so-called "nuclear option" which allows the EU to cancel membership of a state that breaches fundamental EU principles, a test that is hard to pass.[29] Article 7 does not allow forced cancellation of membership, only denial of rights such as free trade, free movement and voting rights.
At a meeting of the Heads of Government of the other states in June 2016, leaders decided that they would not start any negotiation before the UK formally invoked Article 50. Consequently, the president of the European Commission, Jean-Claude Juncker, ordered all members of the EU Commission not to engage in any kind of contact with the UK's parties regarding Brexit. Media statements of various kinds still occurred. For example, on 29 June 2016, Tusk told the UK that they would not be allowed access to the European Single Market unless they accept its four freedoms of goods, capital, services, and people.[30] Merkel said, "We'll ensure that negotiations don't take place according to the principle of cherry-picking ... It must and will make a noticeable difference whether a country wants to be a member of the family of the European Union or not".[31]
To strike and extend trade agreements between the UK and non-EU states, the Department for International Trade (DIT) was created by Theresa May, shortly after she took office on 13 July 2016.[32] As of February 2017, the DIT employs about 200 trade negotiators[33] and is overseen by Liam Fox, the Secretary of State for International Trade.
Process[edit]
Initial speculation[edit]
During the referendum David Cameron stated that, "If the British people vote to leave, [they] would rightly expect [the invoking of Article 50] to start straight away",[35] and there was speculation that he would do this on the morning with Eurosceptic MPs calling for caution to assess the negotiating position[36] and Jeremy Corbyn calling for immediate invocation.[37] During a 27 June 2016 meeting, the Cabinet decided to establish a unit of civil servants, headed by senior Conservative Oliver Letwin, who would proceed with "intensive work on the issues that will need to be worked through in order to present options and advice to a new Prime Minister and a new Cabinet".[38]
Conservative Party leadership election[edit]
Instead of invoking Article 50 Cameron resigned as prime minister, leaving the timing to a successor. There was speculation in the UK that it would be delayed,[39] and the European Commission in July 2016 believed that Article 50 notification would not be made before September 2017.[40]
Following the referendum result, Cameron announced that he would resign before the Conservative party conference in October and that it would be for the incoming prime minister to invoke Article 50:[12]
Reversibility[edit]
Differing views have been expressed on whether the UK's invocation of Article 50 can be revoked.[77] In December 2018, the European Court of Justice ruled in the Wightman v Secretary of State for Exiting the European Union case that a country that had given notice under Article 50 to leave the EU could exercise its sovereign right to revoke its notice.[78]
British government lawyers had argued that the Article 50 process could not be stopped.[79] An Irish court case challenging this view was later abandoned.[80] Lord Kerr has asserted that the Article 50 notification can be revoked unilaterally.[81]
British barrister Hugh Mercer QC noted before Article 50 was invoked that: "Though Art. 50 includes no express provision for revocation of the UK notice, it is clearly arguable for example on the grounds of the duties of sincere cooperation between member states (Art. 4(3) of the Treaty on European Union) that, were the UK to feel on mature reflection that leaving the EU and/or the European Economic Area (EEA) is not in the national interest, the notice under Art. 50 could be revoked."[82]
US law professor Jens Dammann argues: "there are strong policy reasons for allowing a Member State to rescind its declaration of withdrawal until the moment that the State's membership in the European Union actually ends" and "there are persuasive doctrinal arguments justifying the recognition of such a right as a matter of black letter law".[83]
EU politicians have said that if the UK changes its mind, they are sure a political formula will be found to reverse article 50, regardless of the technical specifics of the law.[84] According to the German finance minister Wolfgang Schäuble, "The British Government has said we will stay with the Brexit. We take the decision as a matter of respect. But if they wanted to change their decision, of course, they would find open doors."[85]
On 29 March 2017, the EU Commission stated "It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification."[86] Similarly, the European Parliament Brexit committee headed by Guy Verhofstadt has stated that "a revocation of notification [by Article 50] needs to be subject to conditions set by all EU27, so that it cannot be used as a procedural device or abused in an attempt to improve on the current terms of the United Kingdom's membership".[87][88] The European Union Policy Department for Citizens' Rights and Constitutional Affairs has stated that a hypothetical right of revocation can only be examined and confirmed or infirmed by the EU institution competent to this purpose, namely the CJEU.[89]
However, in July 2016 the German jurist Di Fabio argued, on the basis of international law, that a triggering of Article 50 can be revoked: "in EU law, the declaration of intention to leave is not itself a notification of withdrawal; rather, at any time and at least until the Treaty becomes inapplicable, it can be retracted or declared to have become redundant".[90]
In October 2017, barrister Jessica Simor QC of the leading London law firm Matrix Chambers lodged a freedom of information request to the prime minister or disclosure of legal advice which, she claims, states that the UK government can withdraw the Article 50 application at any time before 29 March 2019; she notes that Article 50 provides only for notification of an intention to withdraw and contends that such intention can be changed at any time before actual withdrawal.[91]
In February 2018, a crowd-funded petition by a cross-party group of Scottish politicians for judicial review of the notice was rejected by Scotland's Court of Session, but in March the Court overturned that decision.[92] On 20 November 2018, an attempt by the British government to prevent the European Court of Justice (ECJ) hearing the case failed and on 27 November 2018 the ECJ examined the legal arguments.[93]
On 4 December 2018, the responsible Advocate General to the ECJ published his preliminary opinion that a country could unilaterally cancel its withdrawal from the EU should it wish to do so, by simple notice, prior to actual departure.[94] While not being a formal ECJ judgement, it was seen as a good indication of the court's eventual decision.[95] On 10 December the ECJ decided that a notice of withdrawal can be revoked unilaterally, i.e. without approval by the other EU members, provided that the decision to revoke is made according to the country's constitutionally established procedures.[96] The case now returns to the Court of Session, to apply this ruling. The British Government immediately affirmed that it did not intend to propose revocation.[97]
Article 50 allows the maximum negotiation period of two years to be extended by a unanimous decision by the European Council and the state in question. For Brexit this has been done three times.