Howard Beckett, Director of Legal Services at Unite sets out some of the considerations relevant to the initial procedural steps which would be required to implement the outcome of the referendum on leaving the European Union. This note uses material published by legal commentators in the aftermath of the referendum.
Referendum is advisory only
The outcome of the referendum is not legally binding. The European Union Referendum Act 2015 contains no provision to the effect that the outcome was to be legally binding. Even in the context of an advisory vote it is unsatisfactory in so far as people have not voted for a Brexit package. It is not like the Scottish Referendum when one party campaigned for a post vote independent Scotland on the back of a 650 page manifesto. Here no one knows what post- Brexit will look like.
Implementing exit from the European Union
Article 50 of the Treaty on European Union (‘TEU’) is the mechanism for implementing the exit from the European Union. It provides that:
- ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional arrangements’;
- a Member State wishing to withdraw notifies the European Council and the European Council provides guidelines for negotiations which are then used as the basis for the negotiation of a withdrawal agreement. The withdrawal agreement shall be concluded between the European Council and the State; and
- TEU and the Treaty on the Functioning of the European Union cease to apply from the date of entry into force of the withdrawal agreement, or, ‘failing that’ two years after the notification (unless the European Council unanimously decides to extend this period) .
But attention also has to be paid to the various means by which EU law is incorporated into UK law through the European Communities Act 1972.
Article 50 notification: ‘once and for all’
It is likely that Article 50 notification cannot be revoked once given. If no acceptable withdrawal agreement is reached within the two year period, the departing Member State (absent unanimous agreement to an extension by the European Council) simply ceases to be a member of the European Union. This means that, once Article 50 notification is given, negotiating power is handed to the remaining States because, unless an agreement is reached, the departing State gets none of the benefits of membership of the Union.
Deciding to withdraw in accordance with the Member State’s ‘constitutional arrangements’
There is now a substantial, and growing, body of opinion from eminent lawyers that, contrary to what David Cameron appeared to say in his resignation speech, the decision to give notification under Article 50 is not an aspect of royal prerogative exercisable by the Prime Minister. Instead, because the consequence of giving Article 50 notification and not reaching a withdrawal agreement would be to nullify the European Communities Act 1972, legislation approved by Parliament would be required. And that body of opinion sees the consequence as being that to give Article 50 notification without legislation approved by parliament would be unlawful.
It is therefore important that the position on when Article 50 would be called for is clear. It is entirely legitimate legally to say Article 50 should only be exercised when the package is known and agreed. It is entirely possible that political parties will campaign for this and given the slender majority for the Tories it is entirely feasible the Government could lose any vote on Article 50 in the absence of the package having been agreed.
A position that Article 50 should not be exercised until a package negotiated offers the opportunity to discuss alternatives with those who wish to campaign to remain in Europe. Indeed there is a growing body of opinion that negotiating before exercise of Article 50 could lead to a second referendum on the package options.
Issues of timing
Because of the ‘once and for all’ nature of Article 50 notification, any prospect of the UK remaining a member of the European Union, or delaying departure, relies on Article 50 notification not being given (or delayed for as long as possible). As outlined above, if Article 50 notification is to be given without legislation approved by parliament such notification may well be unlawful. It is likely that notification without legislation will be challenged in the Courts.
The European Parliament takes the view that negotiation of a withdrawal agreement cannot begin until after Article 50 notification has been given. That is because Article 50(2) envisages the European Council issuing guidelines for the negotiation of the withdrawal agreement only after Article 50 notification has been given. However that is not a position that is so defined as to be impossible to change.
The UK would want to avoid the seemingly impossible position of not being able to know what the terms of the withdrawal agreement are on offer until after it has completely undermined its own negotiating position by giving Article 50 notification.
Already Germany appears to reflect an understanding of this.
Possible legal responses
As matters stand, there is nothing to challenge legally because no step to give Article 50 notification has been taken.
There has been some publicity surrounding the ‘legal bid’ mounted by Mischcon de Reya, who have retained David Pannick QC, on behalf of an unnamed group of businesses. This follows Lord Pannick’s article in The Times on 30 June.
No doubt there is a high degree of publicity seeking in this initiative. What it probably amounts to at this stage is pre-action correspondence with government lawyers asking for confirmation that no Article 50 notification will be given without legislation approved by parliament. That may not be an entirely futile exercise in terms of keeping track of the government’s intentions. But it’s probably unlikely that the government will seek to act without prior notification and publicity in these circumstances.
The key issues surely must be:
- An exercise of Article 50 requires a parliamentary vote
- The unknown nature of the post Brexit package means the deal should be known before Article 50 is issued;
- Any exercise of Article 50 without knowing the Brexit terms should be opposed for fear those terms could harm unite members;
- There is nothing in the European Treaty to prevent b) and c) above;
 See ‘Pulling the Article 50 Trigger: Parliament’s Indispensable Role’ at https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/
 See especially Barber, Hickman and King at n.1, ‘Why giving notice of withdrawal from the EU requires act of parliament’, David Pannick QC, Times 30 June 2016 and the House of Lords Library Note ‘Leaving the EU: Parliament’s Role in the Process’, Nicola Newson, 30 June 2016 at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2016-0034