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Letter from Theresa May invoking Article 50

The United Kingdom's invocation of Article 50 of the Treaty on European Union was an action which formally began the United Kingdom's "withdrawal from the European Union (EU), commonly referred to as "Brexit. The invocation of "Article 50 (2) is the act of giving formal notice to the "European Council of a member state's intention to withdraw from the EU to allow withdrawal negotiations to begin, as required by the "Treaty on European Union.

The "process of leaving the EU was initiated by a "referendum held in June 2016 which favoured British withdrawal from the EU. In October 2016 the "Prime Minister of the UK, "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 by a majority 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 by the United Kingdom occurred on 29 March 2017, when "Sir Tim Barrow, the "Permanent Representative of the United Kingdom to the European Union, formally delivered by hand a letter signed by Prime Minister Theresa May 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 will cease to be a member of the EU on 30 March 2019, unless an extension to negotiations is agreed upon by the UK and EU.[3]

Contents

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.[4]

Views on invocation[edit]

Necessity of invoking Article 50[edit]

The UK government stated that they would expect a leave vote to be followed by withdrawal, not by a second vote.[5] In a leaflet sent out before the referendum, the UK government stated "This is your decision. The Government will implement what you decide."[6] Although Cameron stated during the campaign that he would invoke Article 50 straight away in the event of a leave victory,[7] 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."[8]

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,[9] 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.[10] 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."[11]

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 – although a leaving agreement may be agreed by "qualified majority voting.[12] In this case, 20[a] remaining EU countries with a combined population of 65% must agree to the deal.[14] Unless the "Council of the European Union unanimously agrees to extensions, the timing for the UK leaving under the article is two years from when the country gives official notice to the EU. The assumption is that new agreements will be negotiated during the two-year window, but there is no legal requirement that agreements have to be made.[15] Some aspects, such as new trade agreements, may be difficult to negotiate until after the UK has formally left the EU.[16]

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.[9]

On the other hand, the constitutional lawyer and retired German Supreme Court judge "Udo Di Fabio has stated[17] that

A February 2016 briefing note for the European Parliament stated that a withdrawal from the EU ends, from then on, the application of the EU Treaties in the withdrawing state, although any national acts previously adopted for implementing or transposing EU law would remain valid until amended or repealed, and a withdrawal agreement would need to deal with phasing-out EU financial programmes. The note mentions that a member withdrawing from the EU would need to enact its own new legislation in any field of exclusive EU "competence, and that complete isolation of a withdrawing state would be impossible if there is to be a future relationship between the former member and the EU, but that a withdrawal agreement could have transitional provisions for rights deriving from EU citizenship and other rights deriving from EU law that the withdrawal would otherwise extinguish.[18] The "Common Fisheries Policy is one of the exclusive competences reserved for the European Union; others concern customs union, competition rules, monetary policy and concluding international agreements.[19]

In oral evidence to a Select Committee of the House of Lords in March 2016, one of the legal experts ("Sir David Edward) stated that the German text of Article 50 could be taken to mean that the structure of future relations between the UK and EU will already have been established at the point when withdrawal takes place, which could be taken as a difference from the English text "the Union shall negotiate and conclude an agreement with the withdrawing state setting out the arrangements for its withdrawal and taking account of the framework for its future relationship with the Union".[20]

Arguments for moving slowly[edit]

Nicolas J. Firzli of the "World Pensions Council (WPC) argued in July 2016 that it could be in Britain's national interest to proceed slowly in the following months; "Her Majesty's Government might want to push Brussels to accept the principles of a free trade deal before invoking Article 50, hopefully gaining support from some other member states whose economy is strongly tied to the UK, thus "allowing a more nimble union to focus on the free trade of goods and services without undue bureaucratic burdens, modern antitrust law and stronger external borders, leaving the rest to member states".[21]

Prime Minister Theresa May confirmed that discussions with the EU would not start in 2016. "I want to work with ... the European council in a constructive spirit to make this a sensible and orderly departure", she said. "All of us will need time to prepare for these negotiations and the United Kingdom will not invoke article 50 until our objectives are clear." In a joint press conference with May on 20 July, Germany's Chancellor "Angela Merkel supported the UK's position in this respect: "We all have an interest in this matter being carefully prepared, positions being clearly defined and delineated. I think it is absolutely necessary to have a certain time to prepare for that."[22]

Scottish Parliament[edit]

In February 2017 the "Scottish Parliament voted with overwhelming majority against invoking Article 50.[23] After the UK Government had nevertheless chosen to invoke Article 50, the Scottish Government was formally authorised by the Scottish Parliament to seek to hold a "second Scottish independence referendum.[24]

Pre-notification negotiations[edit]

Prior to the UK Government's invocation of Article 50, the UK stayed a member of the EU, had to continue to fulfill 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.[25][26] 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.[27] 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 UK parties regarding Brexit.[28] Media statements of various kinds still occurred. For example, on 29 June 2016, European Council president "Donald 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.[29] Angela 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".[30]

To strike and extend trade agreements between the UK and non-EU states, the "Department for International Trade (DIT) was created by Prime Minister Theresa May, shortly after she took office on 13 July 2016.[31] As of February 2017, the DIT employs about 200 trade negotiators[32] and is overseen by "Liam Fox, the "Secretary of State for International Trade.

Subjects of negotiation[edit]

Since Article 50 has been invoked, the United Kingdom will negotiate with the "European Union the status of the 1.2 million UK citizens living in the EU, the status of the 3.2 million EU nationals living in the UK. Issues relating to immigration, "free trade, the "freedom of movement, the "Irish border, intelligence-sharing and financial services will also be discussed.[33]

Process[edit]

Initial speculation[edit]

During the referendum David Cameron pledged to invoke Article 50 on the morning of a Leave vote,[34] and there was speculation that he would do this on the morning with Eurosceptic MPs calling for caution to assess the negotiating position[35] and Jeremy Corbyn calling for immediate invocation.[36] 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".[37]

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,[38] and the "European Commission in July 2016 was under the assumption that Article 50 notification would not be made before September 2017.[39]

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:[40]

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.[41]

Cameron made it clear that his successor as Prime Minister should activate Article 50 and begin negotiations with the EU.[4] Among the candidates for the "Conservative Party leadership election there were disagreements about when this should be: Theresa May said that the UK needed a clear negotiating position before triggering Article 50, and that she would not do so in 2016, while Andrea Leadsom said that she would trigger it as soon as possible.[42]

EU views[edit]

According to EU Economic Affairs Commissioner "Pierre Moscovici, Britain had to proceed promptly. In June 2016 he said: "There needs to be a notification by the country concerned of its intention to leave (the EU), hence the request (to British Prime Minister David Cameron) to act quickly."[43] In addition, the remaining EU leaders issued a joint statement on 26 June 2016 regretting but respecting Britain's decision and asking them to proceed quickly in accordance with Article 50. The statement also added: "We stand ready to launch negotiations swiftly with the United Kingdom regarding the terms and conditions of its withdrawal from the European Union. Until this process of negotiations is over, the United Kingdom remains a member of the European Union, with all the rights and obligations that derive from this. According to the Treaties which the United Kingdom has ratified, EU law continues to apply to the full to and in the United Kingdom until it is no longer a Member."[44]

An EU Parliament motion passed on 28 June 2016 called for the UK immediately to trigger Article 50 and start the exit process.[45] There is no mechanism allowing the EU to invoke the article.[46] As long as the UK Government has not invoked Article 50, the UK stays a member of the EU; must continue to fulfil all EU-related treaties, including possible future agreements; and should legally be treated as a member. The EU has no framework to exclude the UK as long as Article 50 is not invoked, and the UK does not violate EU laws.[47][48] However, if the UK were to breach EU law significantly, there are legal provisions to allow the EU to cancel membership of a state that breaches fundamental EU principles, a test that is hard to pass.[49] These do not allow forced cancellation of membership, only denial of rights such as free trade, free movement and voting rights.

Prime Minister Theresa May made it clear that discussions with the EU would not start in 2016. "I want to work with ... the "European Council in a constructive spirit to make this a sensible and orderly departure." she said. "All of us will need time to prepare for these negotiations and the United Kingdom will not invoke article 50 until our objectives are clear." In a joint press conference with May on 20 July 2016, Germany's Chancellor "Angela Merkel supported the UK's position in this respect: "We all have an interest in this matter being carefully prepared, positions being clearly defined and delineated. I think it is absolutely necessary to have a certain time to prepare for that."[50]

The Miller Case[edit]

The Supreme Court ruled in "the Miller case that an explicit Act of Parliament is necessary to authorise the invocation of Article 50.

The Constitution of the United Kingdom is unwritten and it operates on convention and "legal precedent: this question is without precedent and so the legal position was thought to be unclear. The Government argued that the use of prerogative powers to enact the referendum result was constitutionally proper and consistent with domestic law[51] whereas the opposing view was that prerogative powers could not be used to set aside rights previously established by Parliament.[52][53][54]

"I am writing to give effect to the democratic decision of the people of the United Kingdom. I hereby notify the European Council in accordance with Article 50 (2) of the Treaty on European Union of the United Kingdom's intention to withdraw from the European Union. In addition, in accordance with the same Article 50(2) as applied by Article 106a of the Treaty Establishing the European Atomic Energy Community, I hereby notify the European Council of the United Kingdom's intention to withdraw from the European Atomic Energy Community. References in this letter to the European Union should therefore be taken to include a reference to the European Atomic Energy Community."

Letter from Prime Minister May to EU Council President Tusk, 29 May 2017 (para. 3).[2]

Three distinct groups of citizens – one supported by crowd funding – brought a case before the "High Court of England and Wales to challenge the government's interpretation of the law.[55]

On 13 October 2016, the High Court commenced hearing opening arguments. The Government argued that it would be constitutionally impermissible for the court to make a declaration that it [Her Majesty's Government] could not lawfully issue such a notification. The government stated that such a declaration [by the Court] would trespass on proceedings in Parliament, as the Court had ruled previously[56] when rejecting a challenge to the validity of the "ratification of the Lisbon Treaty after the passing of the "European Union (Amendment) Act 2008 but without a referendum.[57][58] Opening the case for the Plaintiffs, "Lord Pannick QC told the Court that the case "raises an issue of fundamental constitutional importance concerning the limits of the power of the Executive". He argued Mrs May could not use royal prerogative powers to remove rights established by the European Communities Act 1972, which made EU law part of UK law, as it was for Parliament to decide whether or not to maintain those statutory rights.[59]

On 3 November 2016, the High Court ruled[60] in "R (Miller) v Secretary of State for Exiting the European Union that only Parliament could make the decision on when or indeed whether to invoke Article 50.[61] The Government's appeal to the "Supreme Court took place on 5–8 December 2016.[62] On 24 January 2017, the Supreme Court upheld the decision of lower court by a majority of eight to three, declaring that the invocation of Article 50 could only come by an Act of Parliament.[63][64][65] The case was seen as having constitutional significance in deciding the scope of the "royal prerogative in foreign affairs.[66] The Supreme Court also ruled that devolved legislatures in Scotland, Wales and Northern Ireland have no legal right to veto the act.[67]

Other court cases[edit]

In January 2017, a claim of several people in legal proceedings against the Secretary of State centred on the UK's links with the European Economic Area.[68] The following month, the High Court rejected their application for judicial review.[69]

UK Parliament[edit]

On 2 October 2016, the Prime Minister, Theresa May, announced that she intended to invoke Article 50 by the end of March 2017, meaning that the UK would be on a course to leave the EU by the end of March 2019.[70]

On 7 December 2016, the "House of Commons approved a non-legally-binding motion supporting Article 50's invocation by 31 March 2017.[71]

As a direct consequence of the "Supreme Court ruling the House of Commons voted by a majority of 384 votes (498 to 114) to approve the "second reading of the "European Union (Notification of Withdrawal) Act 2017 to allow the Prime Minister to invoke Article 50 unconditionally.[72][73]

On 7 March 2017 the bill passed the House of Lords, though with two amendments.[74] Following further votes in the Commons and the Lords on 13 March 2017, these two amendments did not become part of the bill, so the bill passed its final reading unamended and it received "royal assent on 16 March 2017.

Formal notification[edit]

In October 2016 the UK Prime Minister, Theresa May, announced that the government would trigger Article 50 by "the first quarter of 2017".[75] "Theresa May announced on Monday 20 March 2017 that the UK would formally invoke Article 50 on Wednesday 29 March 2017, meeting her self-imposed deadline.[76] The letter invoking Article 50 was signed by May on 28 March 2017,[77] and was hand delivered on 29 March by "Tim Barrow, the "Permanent Representative of the United Kingdom to the European Union, to "Donald Tusk, the "President of the European Council in Brussels.[78][2] The letter also contained the "United Kingdom's intention to withdraw from the "European Atomic Energy Community (EAEC or Euratom). On 31 March Tusk sent draft negotiation guidelines to the leaders of the EU to prepare for the upcoming "Brexit negotiations.[79]

Reversibility[edit]

The issue of whether the UK's invocation of Article 50 can be revoked is unclear. "Lord Kerr has asserted that the Article 50 notification is reversible.[80] Reuters reports that "the European Parliament has said that Brexit can be reversed with the consent of the remaining EU members, but British government lawyers have said the process cannot now be stopped." An Irish court is due to hear a legal challenge on 31 May 2017.[81] Other 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.[82] A senior UK barrister has noted 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."[83] US academic Jens Dammann also takes the view that a Member State can revoke its declaration of withdrawal until its membership in the European Union has ended.[84]

According to the influential 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].

Notes[edit]

  1. ^ 72% of remaining member states are required for the agreement to pass the "Council of the European Union, rather than the usual 55%, as the proposal does not come from the Commission or the high representative.[13]

See also[edit]

References[edit]

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External links[edit]

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