Article 50.1 TEU, The Constructional Requirements

Introduction

Article 50 TEU (hereinafter Article 50) is the only legal mechanism, under EU law, for a Member State of the European Union (EU) to leave the Union. It sets out the steps a country needs to go through to withdraw from its treaty obligations. Article 50.1 states that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. In June 2016, the UK organised the UK-EU membership referendum, more commonly known as the Brexit referendum. Article 50 will be required to be triggered. For the first time in EU history, an independent European Member State has decided to withdraw from the EU. This paper is attempting to evaluate Article 50 as a mechanism for withdrawal from the EU, focusing on Article 50.1 by a brief assessment of the UK constitutional requirements to conclude as to whether or not Article 50 succeeds the reason for its existence. 

Article 50 Treaty European Union (TEU)

Article 50 is a clause in the TEU that outlines the steps to be taken by a country seeking to leave the bloc voluntarily. Invoking Article 50 kick-starts the formal exit process and serves as a way for countries to officially declare their intention to leave the EU. 

On March 29, 2017, the British Prime Minister invoked Article 50, following British voters decision to pursue the UK's exit from the EU in a referendum on June 23, 2016. Brexit is the first example of a member state leaving the EU by means of Article 50. 

The right of a Member State to withdraw from the EU was introduced for the first time with the Lisbon Treaty. Before the Lisbon Treaty, the question of the right of withdraw was arguable. Nevertheless, the Lisbon Treaty adopted Article 50, giving an important political signal to anyone inclined to argue that the EU is a rigid entity which it is impossible to leave. This signal was, in particular, important for the new Eastern European Member States which joined the EU after, and with thanks to the collapse of the Soviet Union. Moreover, several constitutional courts saw a unilateral right to withdraw from the EU as necessary in order to preserve national sovereignty.  

Since Article 2 TEU states that the Union is founded on the values of respect for, among others, freedom, democracy and the rule of law, it is logical that Member States shall have the right to withdraw from the EU. In addition, the inclusion of a right to withdraw from the EU under the treaties is deemed appropriate. It provides the EU with a legal mechanism to deal with withdrawal situations based on EU law rather than being dependent on the general principles of international law. 

It is notable that Article 50 does not set down any substantive conditions for a Member State to be able to exercise its right to withdraw, rather it includes only procedural requirements. In other words, a Member State can exercise its right to withdrawal from the EU without giving any reasons for its decision. Prima facie the absence of substantive conditions indicates the vulnerability of the EU. Nonetheless, the Brexit process solidifies the power of the EU. Brexit proves that it is recommended for Member States themselves to impose substantive conditions before exercising their right to withdraw and invoke Article 50.

The legal consequence of a withdrawal from the EU is the end of the application of the EU Treaties (and the Protocols thereto) in the state concerned from that point on. EU law ceases to apply in the withdrawing state, although any national acts adopted in implementation or transposition of EU law would remain valid until the national authorities decide to amend or repeal them. A withdrawal agreement would need to address the phasing-out of EU financial programs and other EU norms. 

After this brief contextual illustration of Article 50, this paper will focus on one of the procedural requirements, namely, whether or not the UK Government, by invoking of Article 50, complied with its own constitutional requirements. 

Constitutional requirements in the UK 

Questions arise as to who has the right to trigger Article 50 in the UK constitutional law? Did the UK Government comply with the requirements of Article 50.1 while first compiling with its domestic constitutional law? Would a decision by the United Kingdom to withdraw from the European Union require an Act of Parliament?

The UK Government’s view is that the Prime Minister can take the decision to trigger Article 50 in accordance with the ‘royal prerogative’ over foreign affairs. This view has been the subject of several legal arguments between legal experts who argue that the Parliament must consent to the triggering of Article 50. Some argue that a vote on a substantive motion would be sufficient, while others argue that primary legislation is required and experts believe that the Government can use its royal prerogative and trigger Article 50.1. 

This paper is evaluating the arguments of both views, but first it is important to examine what does royal prerogative actually mean? 

Royal/Crown prerogative

Royal/Crown prerogative, as is described on the website of the UK Parliament, is the term used to describe powers held by the Monarch or by Government Ministers which may be used without the consent of the Commons or Lords. The concept of prerogative powers stems from the medieval King acting as head of the kingdom. The Royal Prerogative is one of the most significant elements of the UK’s government and Constitution. It enables Ministers, among many other things, to deploy the armed forces, make and unmake international treaties and to grant honours. Royal prerogatives related to foreign affairs are the power to acquire additional territory; the making of treaties, the declaration of war and the making of peace; restraining aliens from entering the UK and the issuing of passports. 

It is notable that the Constitutional Reform and Governance Act 2010 restricts this prerogative power by giving the Parliament a veto over treaty-making powers in some circumstances. Under the provisions of the Act, most treaties must be laid before Parliament and may not be ratified unless 21 sitting days pass without the House of Commons resolving that the treaty not be ratified, whether or not the House of Lords does so. The Government has the option of continuing to ratify a treaty if only the House of Lords resolves that the treaty should not be ratified. 

No Royal/Crown prerogative in Brexit 

According to Barber, King and Hickman, the UK Prime Minister is not entitled to invoke Article 50 without having been first authorised to do so by an Act of the United Kingdom Parliament. 

Invoking of Article 50 without Parliament authorisation would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself. The rational of their argument is based on facts such as the parliamentary democracy in the UK, in the sense that it is Parliament and not the Government that has the final say about the implications of the referendum, the timing of an Article 50 invocation, membership of the Union, and the rights of British citizens that flow from that membership. 

Withdrawal from the EU is changing the UK constitutional arrangements, therefore it is the Parliament and not the Government who should decide whether or not to trigger Article 50. Their point of view is that the prerogative power the UK Government claims to have is not absolute. The Government cannot take away rights given by Parliament and it cannot undermine (i.e. frustrate the will of Parliament as expressed in a statute) a statute. The statute in the case of Brexit is the European Communities Act 1972. This act provides (citizen) rights, powers, liabilities, obligations and restrictions and is aimed at providing EU Treaties an effect in UK law. The European Communities Act 1972 is recognized by the common law as having constitutional status. A constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. 

The Government could not use its prerogative power to trigger Article 50, whereby all statues made or created based on European Communities Act 1972 would cease to apply in the UK. When the government uses a prerogative power to withdraw rights incorporated by statute, the court can, and should, issue a declaration that this is unlawful. 

Arvind et al believe that the European Union Act 2011 created a new mechanism for changes to the relationship between the EU and the UK. Section 2 (1)(b) of the European Union Act 2011 states that a treaty which amends or replaces TEU or TFEU is not to be ratified unless the treaty is approved by an Act of Parliament or, in certain instances, through a binding referendum. Arvind et al argue that the invocation of Article 50 by prerogative power is a recipe for constitutional crisis, as the withdrawal will change the current relationship between the UK and EU. 

O’Cinneide argues that a good case, from a political point of view, can be made that Parliament should have the opportunity to debate the contents of any negotiation strategy before Article 50 is triggered due to the fact that in the end the Parliament is going to approve or reject the deal. Parliament has sovereignty over Government and cannot be bound by it. The decision about the UK's future properly belongs with Parliament. 

In addition, questions also arise over the Scottish issue and the devolved matters governed in the UK legal order. It is accurate that the membership of the EU is not a devolved matter. However, since the outset of devolution in 1999, the UK Government established what came to be known as the Sewel or ‘legislative consent’ Convention. This states that Westminster normally legislates on devolved matters only with the consent of the Scottish Parliament. This was given legal standing in the Scotland Act 2016. 

Much of the Scottish devolved matters are regulated in accordance with EU law. Brexit is going to affect these devolved matters as the UK Parliament is planning to replace EU law with domestic law. The implementation of UK law in Scottish devolved matters requires the legislative consent of the Scottish Parliament (constitutional convention). Given the referendum results in Scotland and the current political parties context, neither the Scottish Government nor the Scottish Parliament are inclined to ease the Brexit process. A legal dispute related to the Scottish issue is most likely to occur.  

Can the UK trigger Article 50 in accordance with its own constitutional requirements since removing references to EU law from the devolution legislation would require the consent of the devolved assemblies?? 

The UK Government can use prerogative power to trigger Article 50 

Gardner suggests that it is up to the British Government alone to decide whether and when to “trigger” Article 50. It may ask for Parliament’s approval, but isn’t legally required to. What Parliament can do is force the government to resign or force an election. 

Fairclough argued that the European Communities Act 1972 merely replicated the UK international obligations in the domestic sphere. The UK negotiated and joined the European Union through the Royal Prerogative, and the UK will negotiate and leave the European Union through the same. Fairclough seems to neglect to provide an answer over the acquired rights based on the European Communities Act 1972. This rational is shared by Mark Elliott. The Act, according to him, assumes binding EU obligations, it does not make them permanent or transfer the executive’s function in contracting those obligations to Parliament. Elliott argues that triggering Article 50 by the UK Government does not in itself change any part of the common law, or statute law, or the customs of the realm??? 

What with the Court’s decision that the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. 

 This paper suggests that because of these rights, the relationship with the EU is no longer a series of international obligations transposed into the domestic sphere. It becomes part of the domestic sphere. 

Taylor in his view conclude that the power to trigger Article 50 and withdraw from the EU remains legally with the Government under the Royal Prerogative, and not with Parliament. 

Unlike most countries, the United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law. The UK constitutional arrangements have developed over time in a pragmatic, as much as in a principled way, through a combination of statutes, events, conventions, academic writings and judicial decisions. 

According to Taylor, a constitutional convention would provide the only means by which Government could be compelled to consult Parliament before withdrawing. He added that the existence of any such convention appears unlikely as the existence of any convention regulating the Government’s use of Article 50 is dependent upon its acceptance by the Government. This acceptance is based on political rather than constitutional grounds. He suggested that the British constitution, by lack of codified constitution, is politically governed, not by clear constitutional laws, but by everyday politics conducted. This explains why the discussion over who will trigger Article 50 occurred after the referendum.

Armstrong questions the role of parliament triggering Article 50. According to him, direct democracy (referendum) trump’s representative democracy (Parliament). This point of view is questionable itself. Armstrong neglected to acknowledge that the referendum was only advisory. He neglected to mention that the facts used during the campaign were not checked. According to him, the referendum was advice to the Government that the decision of the electorate that the UK should leave the European Union was advice to government which it should act upon. It can be agreed that the position of referendums is somewhat unclear in UK constitutional law, but there is no authority that they can override parliamentary sovereignty. The referendum vote provided no mandate for the government to override rights provided by UK statute without first obtaining parliamentary authority.

Millar Case

The legal and academic dissimilarity over whether or not the Government is, by using her prerogative power, entitled to trigger Article 50 led to judicial review. 

The case of Miller v Secretary of State for Exiting the European Union is considered to be the constitutional case of the century.  

A starting point for the argument is that the UK enabled its accession to the (then) EEC through the ratification of the European Communities Act 1972. Under British law, a statute may only be repealed by another statute, and not by the exercise of prerogative power. 

The actual effect of Article 50 notification would be to trigger a 2 year timeline at the end of which the UK would cease to be an EU Member State (unless extended by unanimity of all EU Council members). The inevitable result of triggering Article 50 would be that a whole set of citizens’ EU-law rights would disappear into thin air. In other words, the prerogative cannot be exercised in a manner which would turn a statute into what is, in substance, a dead letter, or cut across the object and purpose of an existing statute.

In the legal decision of Miller v Secretary of State for Exiting the EU, the Supreme Court ruled that, while the Government can use prerogative power to make and withdraw from international treaties, whenever treaty changes require a change to domestic law, the Government must always seek the sanction of Parliament. It would not be legal for the Government to use prerogative powers to trigger Article 50, instead primary legislation was required. 

After this brief review regarding the constitutional issues related to the UK constitution, it is important to note that this paper is not focusing on the analyses of the UK constitutional rules nor discussing or assessing the Miller case. This paper is aimed at reviewing whether or not the UK triggered Article 50 according to its constitutional requirements. 

This paper aims to evaluate Article 50 as a mechanism for withdrawal from the European Union. To link the above-mentioned review with the aim of this paper, it can be said that connecting the decision to withdraw from the EU, to be done in accordance with the constitutional requirements of the Member State, is concrete measurement. It arrests that the decision to withdraw from the EU is applied and done by political instruments such as Government/Parliament decisions. Withdrawal from the EU requires compliance with constitutional requirements. Constitutional requirements are not light exercise which can be done in a fast process. 

Article 50.1 provides enough protection against a populist government or a parliament with populist majority to lightly trigger Article 50. 

In Brexit case, however, the European Court of Justice could well be asked to verify that the UK has acted ‘in accordance with its own constitutional requirements’. It could examine the British EU Referendum Act 2015, which legislated that a referendum ‘is to be held’ on whether the UK should remain a member of the EU. No threshold was set either for turnout or for a qualified majority. However, one of the arguments used during the Brexit campaign was the intervention of the EU or EU institutions in domestic affairs. 

Conclusion 

The right to withdraw from the EU (Article 50) was, by its introduction, arguable. It was a political signal to anyone inclined to argue that the EU is a rigid entity which is impossible to leave. Not many believed that a Member State would actually plan to trigger Article 50 and start a withdraw process. Article 50.1 states that any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. In Brexit case, discussions were raised regarding who would have the authority to trigger Article 50, while also complying with the constitutional requirements mentioned in said Article. The Government, by using its prerogative powers, or the parliament? Since the UK does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law, the Supreme Court ruled that it would not be legal for the Government to use prerogative powers to trigger Article 50, instead primary legislation was required. This paper evaluated Article 50 as a mechanism for withdrawal from the European Union by reviewing the constitutional requirements of the UK. 

It can be concluded that Article 50.1 passed its first test, in the sense that the withdrawal decision cannot be lightly used by a Member State as it needs to comply with its own constitutional requirements. The EU institutions in Brexit case did not interfere with the process regarding complying with its constitutional requirements. However, a clear role of the EU regarding controlling the appliance of Article 50.1 (EU Law) can be arrested. 

Bibliography 

European Union, Consolidated Version of the Treaty on European Union, 13 December 2007, 2008/C 115/01.

European Union Act 2011

The Institute for Government. “Brexit Brief: Article 50.” <https://www.instituteforgovernment.org.uk/brexit/brexit-brief-article-50>

Armstrong, K., “Push Me, Pull You: Whose Hand on the Article 50 Trigger?” (27 June 2016) UK Constitutional Law Association

Arvind, T. and Kirkham, R., “Article 50 and the European Union Act 2011: Why Parliamentary Consent Is Still Necessary” (1 July 2016) UK Constitutional Law Association

Barber, N., Hickman, T., and King, J., “Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role” (27 June 2016) UK Constitutional Law Association 

Bartlett, G. and Everett, M., “The Royal Prerogative” (17 August 2017) House of Commons Library, Briefing Paper No. 03861

Blackburn, R., “Britain's unwritten constitution” (13 March 2015) The British Library

Coppola, F., “Parliament and Brexit” ECONOMICBLOGS ( 4 JULY 2016)

Craig, R., “Triggering Article 50 Does not Require Fresh Legislation” (8 July 2016) UK Constitutional Law Association 

Creelman, G., “The Relevance of Thoburn to the Article 50 “Trigger” Debate” (7 September 2016) UK Constitutional Law Association

Douglas-Scott, S., “Miller: Why the Government Should Still Lose in the Supreme Court (Even with New Arguments” (15 November 2016) UK Constitutional Law Association

Douglas-Scott, S., “Removing references to EU law from the devolution legislation would require the consent of the devolved assemblies” The Constitution Unit Blog (13 June 2016)

Duff, A., “Everything you need to know about Article 50” euractiv (5 July 2016)

Eleftheriadis, P., “No PM should invoke Article 50 without parliament’s approval” InFacts (29 June 2016)

Elliott, E., “On why, as a matter of law, triggering Article 50 does not require Parliament to legislate” (30 June 2016) Public Law for Everyone 

Elliott, M., “The Government’s case in the Article 50 litigation: A critique” (30 September 2016) Public Law for Everyone 

Fairclough, T., “Article 50 and the Royal Prerogative” (8 July 2016) UK Constitutional Law Association

Fairclough, T., “Judicial Review and Article 50: Some Preliminary Issues” (6 July 2016) UK Constitutional Law Association

Gardner, C., “Article 50, and UK constitutional law” Head of Legal (27 June 2016)

Gordon QC, R., “The UK’s ‘constitutional requirements’ under Article 50 TEU” (19 July 2016) Brexit Law

Kenton, W., “Article 50” Investopedia (25 June 2019)

O’Cinneide, C., “Why Parliamentary Approval for the Triggering of Article 50 TEU Should Be Required as a Matter of Constitutional Principle” (7 July 2016) UK Constitutional Law Association.

Paun, A., “Can Scotland avoid Brexit?” Sceptical Scot. (11 July 2016)

Phillipson, G., “Brexit, Prerogative and The Courts: Why Did Political Constitutionalists Support The Government Side in Miller?.” (2017) Vol. 36, Iss. 2 University of Queensland Law Journal at 311

Poptcheva, E.M., “Article 50 TEU: Withdrawal of a Member State from the EU” (18 February 2016) European Parliament Think Tank

Rankin, J., Rice-Oxley, M., and Borger, J., “What is article 50 and why is it so central to the Brexit debate?” the Guardian (25 June 2016)

Ryk-Lakhman, I., “A Referendum with no Legal Effect?” UCL Journal of Law and Jurisprudence Blog (9 June 2017)

Smith, E., “What Would Happen if the Government Unlawfully Issued an Article 50 Notification without Parliamentary Approval?” (30 June 2016) UK Constitutional Law Association

Taylor, R., “Constitutional Conventions, Article 50 and Brexit” (15 July 2016) UK Constitutional Law Association.