A Sloppy Divorce: BREXIT and Article 50

R Vighnesh Kaimal, KLE society’s Law College, Bangalore

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.


Photos: PixaBay

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