Article 50 and the Brexit process explained

Article 50 and the European Communities Act 1972 need some explaining. What does not need explanation is, "Brexit means Brexit". We must hold Theresa May to her word

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Matthew Ellery
On 15 July 2016 11:39

On Thursday 23rd June the people of the United Kingdom voted to leave the EU. Since then, there has been plentiful discussion about how exactly we leave the EU.

There is a near constant mention of Article 50 without ever explaining what it is or its impact. In this piece we at Get Britain Out would like to provide clarity about this mechanism for leaving the EU.

Article 50 of the Treaty on European Union sets out the process by which an EU Member State withdraws from the union under EU law. This provision is very clear. Article 50 is implemented by the member state in question informing the European Council it is invoking Article 50.

This can be effective as soon as the withdrawal agreement is finalised, if the Member State wishes, or, failing this, 2 years after notification. The 2 year period can be extended if all EU member states agree.

EU law would still apply to the UK while exit negotiations take place. UK budgetary contributions would, thus, continue along with all the onerous regulations, directives and decisions.

The exit deal which is eventually struck would only be subject to a vote by a qualified majority of EU Member States (not unanimity), and the agreement of the European Parliament, unless the deal impacts areas which are determined by individual member states as well as the EU.

In such a situation it would be considered a ‘mixed agreement’ and would need to be signed off by every EU Member State.

Some claim the UK could bypass Article 50 altogether, by simply repealing the UK’s own European Communities Act 1972, which is the UK’s domestic legislation to join the EU.

This is not desirable in any sense. Firstly, the UK would consider itself as having left, with UK courts no longer applying EU law. However, in the EU’s eyes the UK would not have left the EU. This would result in the UK leaving the EU after having its membership cancelled by the EU -- due to a fundamental failure to comply with EU law.

Secondly, it probably isn’t a good negotiating tactic to snub the organisation you are trying to forge a deal with immediately before entering negotiations.

Finally, failing to withdraw by using Article 50 would also breach international law, unless all member states agreed. This is set out in Article 54 of the Vienna Convention on the Law of Treaties, rendering the avoidance of Article 50 pointless.

We have also heard talk of a legal challenge to ensure Article 50 is debated in Parliament before Article 50 is invoked as a matter of law. This has gathered the support of 1,000 barristers, but has also been criticised by many in the legal profession too. It is likely this challenge will not succeed, and even if it did, the new Prime Minister, Theresa May, has said “Brexit means Brexit” and therefore would force British withdrawal through Parliament.

The signing of an international treaty is a Royal Prerogative power. In other words, a power which is used by the Prime Minister in the Queen’s name, without the consent of Parliament. It’s an archaic but simple concept.

However, the Ponsonby rule -- a constitutional convention dating back to 1924 -- requires the government to present an international treaty (in this case UK membership of the EU) to be signed before Parliament, at least 21 days before the agreement is ratified. (This was encoded in law with the passing of the Constitutional Reform and Governance Act 2010.)

Under section 25 of this Act it is likely this would only apply to the ratification of treaties and not the notification of our withdrawal (as occurs with Article 50). Therefore, a debate in Parliament would not be necessary, as the UK is not signing, amending or replacing a treaty -- simply complying with it to leave the organisation.

We have also heard suggestions Article 50 must now be debated in Parliament, since it would neuter the European Communities Act (described above) as the Act would become an empty shell once the UK withdraws from the EU. It is correct the Act would become pointless, but this is no reason for the Act to be put before Parliament.

Parliament has not had to agree to any EU regulation before it was effective in the UK. This all stems back to the fact the UK is a member of the EU and subject to all the rights and obligations of membership under EU law, and not because of domestic legislation.

We at Get Britain Out have been highly critical of the Government’s EU propaganda leaflet to every house in the country at the cost of £9.3 million to the British taxpayer. However, we agree with one extract from it: “This is your decision. The Government will implement what you decide.”

The politicians must stick to this promise. There’s a first time for everything, and we will endeavour to hold the new Prime Minister, Theresa May, to her word.

Matthew Ellery is a Research Executive at Get Britain Out

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