Brexit: The Mechanism of Article 50 Explained

Brexit: The Mechanism of Article 50 Explained

On the morning of the 24th June 2016, hundreds of thousands of people woke up shocked and in awe to the climactic result of United Kingdom’s Referendum: a majority of people, fifty-two percent (52%), had voted in favour of leaving the European Union (EU). While many of the polls, during the polling, had suggested that the UK would come out unscathed and remain part of the EU, the final result spoke differently. In the hours that followed, the consequences of ‘Brexit’ (the name the movement had gained over the course of time) followed and caused shockwaves across businesses in the UK: the stock markets around the globe felt the impact of the result as the UK’s financial market tumbled and banks scurried to prevent a new economic recession. To this day, the impacts of Brexit resound in the political and financial landscapes of Britain.

The process of UK’s withdrawal will take several years. One must note that the European Union is like the human anatomy and the severance of UK from EU must be done carefully so as to ensure the proper functioning of every mechanism and institution that had a link with the EU before the 24th of June 2016. The ability to withdraw from the EU is a fairly new concept and was incorporated in the Lisbon Treaty in 2007 as the now infamous Article 50 of the Treaty on the Functioning of the European Union (TFEU).

This Article provides that,

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

The steps to withdraw from the European Union are fairly simple: a notification is issued by the United Kingdom to the European Council declaring that they wish to withdraw from the EU, which is followed by an extensive negotiation process, one which will continue for several years to ensure every minute detail is chalked out, at the end of which the United Kingdom will formally be a non-EU state.

It must be noted, however, that the moment a notification is issued, a two-year grace period begins after which all EU related treaties stop having a legal effect on the United Kingdom. One way to extend this ‘two-year grace period’ is for the EU Council to vote unanimously for the period to be extended. If it does so, the UK continues to be bound by the EU treaties and law as well as remain a member of it. However, it is doubtful that the EU would make such a vote, for doing so, the UK could still become the President of the EU Council (as it originally intended to be), and such a result would put the EU in quite an awkward position: having a Member State that has decided to withdraw from the EU, becoming the President of the EU! However, Theresa May, the Prime Minister of UK had made her intentions clear and had told the (current) European Council President, Donald Tusk, that the UK shall relinquish it’s right to the EU Presidency in 2017. As the year comes to a close, it appears that the United Kingdom remains loyal to the idea of an EU-divorce.

Such an attitude indicates the seriousness of Brexit and UK’s commitment to see it through. By not faltering and remaining resolute in its stand, the United Kingdom may get a favourable response during the negotiation process, with the remaining EU states knowing that the UK remains serious about leaving the EU.

The negotiation process is conducted by the EU governments under a mandate decided by the EU Ministers who “act by a qualified majority, after obtaining the consent of the European Parliament”. A much complex situation arises if the UK decides to cut across policy areas and negotiate FTAs (Free Trade Agreements) with various Member States; such an agreement will be termed as a ‘mixed agreement’ and will require additional ratification by every national parliament in the EU. The EU treaties themselves would need to reflect the withdrawal of the United Kingdom and would, therefore, be in need of amendment.

All of this may seem black and white but there are various aspects of the process that have come under scrutiny. While the general view remains that the new Prime Minister, Theresa May, will be the one to issue the notification to EU to start the withdrawal process, there are academics and experts who believe that any such notification should come once it has been debated and approved by the House of Commons. The matter was laid to rest in the infamous and seminal case of R (Miller) v Secretary of State for Exiting the European Union, where the UK Supreme Court ruled that the UK government (the executive) could not initiate the withdrawal from EU by formal notification, without an Act of UK Parliament being passed permitting the government to do so.

Clearly, the latter mechanism alluded to the fact that the House of Commons may have rejected the idea of withdrawal through formal notification, thereby ending all hopes of Brexit and bringing some stability to UK’s tumbling economy. It is unlikely that the European Union, or the United Kingdom for that matter, would go down the latter path, as to do so would make Article 50 a mere illusion without any actual legal effect. In less than two days after the Miller case, the UK Parliament empowered the Prime Minister to give Council of the European Union the formal notice of withdrawal through the European Union (Notification of Withdrawl) Act 2017. The Bill passed through Parliament unamended, although various attempts at amendment were made in the House of Lords, which were rejected by the House of Commons.

Since this is the first time that a country has chosen to opt out of the European Union and led to the debate surrounding Article 50 of TFEU, we must all wait and watch, as the political and legal landscape changes every step of the way.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Humza Mehbub

The writer is a law graduate with plans to pursue an LLM and a Doctorate. He has keen interest in Intellectual Property and Cyber Law.



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