A Sloppy Divorce: BREXIT and Article 50 of the EU

Charter

(NOTE: This Article was published by speakingthreads.org, which is a student run blog
at University of Austen, Texas)

In a tremulous vote on 23 June 2016, the British people clearly expressed their will to leave
the European Union. The outcome was unexpected, even by the proponents supporting the
leave campaign; hence with no coherent proposal of the future, it would not be naïve to say
the British Government was ‘caught with its pants down”. The “leave” side’s victory has had
a significant impact on the Financial Services sector of the British Economy. Scotland, in the
aftermath of the result, is rethinking the choices its people made in its own freedom
referendum. And to top it up, in the face of serious economic and political challenge, a new
legal crisis emerged.

The crisis came in the form of five obscure paragraphs of 260 words in the EU Charter-
Article 50. Never has such abstruse piece of literature held such massive value in geo-
politics before. Article 50 of the EU charter governs the exit mechanisms for an EU nation
that might, voluntarily, want to leave the union. As per the Former Italian Prime Minister
Giuliano Amato, the enlightened gentlemen who happens to have drafted Article 50, the
clause was incorporated with forethought that it would never be invoked.

Relevant part of Article 50 reads-

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.

It is safe to conclude that two things are essentially vital in the process of invoking article
50, firstly that the decision to withdraw must be made by the nation state its prescribed
constitutional procedure. Secondly, intentions to leave must be notified to the European
Council.

On 24th January 2017 UK Supreme Court gave a landmark ruling prohibiting Prime
Minister Theresa May from using the prerogative powers of her cabinet to begin the process
of Brexit, instead directed that the Brexit process shall be routed through the parliament.
This decision was hailed by many as a resounding defence of parliamentary democracy,
with no precedent before.

EU charter mandates that a nation can initiate the exit process as per its constitutional
prescriptions but the significant issue arising here is that when it comes to United Kingdom
there are no constitutional imperatives in a codified form that one would find in an easy
glance. When Prime Minister Theresa May took over the reins from David Cameroon in July
2016 and she was certain to initiate the notification requirement by March 2017, to begin
negotiations in the earnest. In order prevent the process from delay possessed by
dissenting Labour Party and rouge MPs of her own party, PM May made an attempt to
notify European Council by the means of her royal prerogative. This caused more
complications than ever, especially when the UK Supreme Court, on 24th January 2017,
ended up throwing a spanner in her exit schedule.

It is crucial for one to understand the nature of royal prerogatives as political tools. A. V.
Dicey defines royal prerogative as “the name for the residue of discretionary power left at
any moment in the hands of the Crown, whether such power be in fact exercised by the King
himself or by his Ministers”. They are a set of powers that are endowed upon the Prime
Minister and the cabinet to make decisions without involving the Parliament. Royal
Prerogative paradigm has in its ambit certain domains of foreign affairs and defense.

But there are certain inherent limitations when it comes to prerogatives, the authority
initiating an act under the prerogative is answerable to the Parliament for any complication
that may arise as the result of the prerogatives. Prerogatives can also be subject to judicial
scrutiny, as ruled by Lord Denning in Laker Airways Ltd v. Department of Trade, if the
power so exercised unjustly impinges the rights held by the British Citizens.

In its ruling on Brexit, the UK Supreme Court held that the Brexit could be made only be
implemented by the way of changing the law which happens to be the function of the
Legislation, instead the executive headed by the PM May and her cabinet. The rationale
behind it lay in the 1972 European Communities Act. The Section 2 of the act provides that,
whenever EU institutions make new laws, those new laws become part of UK law unless
they are expressly rejected by the British Parliament. Hence if UK withdraws from the EU,
the British legal realm would lose a source of law that it has in EU. Supreme Court
emphasized that cutting off a source of law is equivalent to alteration of law, which in turn
comes under the operational domains of the legislature rather than the executive powers
vested in the cabinet. It effectively stated that the royal prerogatives empowers the cabinet
to change treaties but using that tool without applying mind would affect the rights of the
British people.

This seems like a major setback for Prime Minister May’s plan to begin the negotiations by
March 2017. The ruling although has plummeted schedules into disarray, it did infact
remove the ambiguity involving the exit mechanisms. Greater accountability has also been
imposed since the process is now subject to full parliamentary mechanism. The judgment is
also a sigh of relief for Scotland and Northern Ireland, voters from these two regions
formed the core of the “Stay” campaign. In the light of the judgment they have options for
active intervention.
Now the main challenge before the government lies in the fact that a quick legislation is
required. Post judgment there was claims of a short straight-forward bill being introduced.
But that can be slurred by the three quarters of MPs who voted in favour of remaining.
Although the labour party has agreed to work with the conservatives in Brexit,
nevertheless dissenting voices were many. There were also worries about a scenario where
the bill gets passed despite these challenges, but gets stuck in the House of Lords. The
government has no majority or apparent control in the house of lords. House of Lords may
not curtail Brexit, but their intensive scrutiny would undoubtedly delay the process. Labour
Party majority in the House of Lords also means that there may be temptations to amend
the bill. If in any scenario there are amendments made by the House of Lords, it will again
be send to the lower house for discussions and voting.

Article 50 is a one way street, if UK makes a notification for exit, the clock starts ticking. If
no negotiations are concluded before the stipulated time of two years the Britain may end
up getting all its treaties with European Union nullified. In Brussels it’s a totally different
ball game, for the EU the agreement would be negotiated by the European Commission
acting by a qualified majority after obtaining the consent of the European parliament. This
would add other unpredictable factors to the equation. Even if no deal is concurred with
the EU, Britain still has a more difficult way out through WTO, since Britain had been
operating at WTO through EU. Independent operations would mean coming up with its
own tariffs and quotas which is a lot more difficult than it sounds. In the face of it, this is
going to be a long messy divorce.

(This article can be found at- http://speakingthreads.org/2017/02/20/a-sloppy-divorce-brexit-

and-article-50/ )