‘That referendum’. Article 50 and Judicial Review

An application for judicial review has been launched by London Solicitors, Mischcon de Reya, with a preliminary hearing scheduled for 19 July. The claim argues that only parliament can authorise the giving of notice under Article 50.

Further details can be found in this Guardian article.

Article 50 of the Lisbon Treaty provides:

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.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

Plenty to keep constitutional lawyers busy over the summer.

The EU Referendum. Do the Parliaments decide?

The process of leaving the EU will begin with notification of withdrawal under article 50 of the TFEU. Until this is done the UK remains a member of the EU and is under no obligation to give such notice within any time frame, or, indeed, at all. The process will end with the repeal of the European Communities Act 1972 two years after notification under article 50. This process raises a number of constitutional issues.

Is Scotland’s consent required for withdrawal from the UK? It has been suggested that this might be the case by virtue of these provisions in the Scotland Act 1998.

Section 29(2)(d)  states that a provision of an Act of the Scottish Parliament is not law in so far as it is incompatible with EU law (similar provisions appear in the legislation setting up the Northern Ireland and Welsh assemblies).

Paragraph 1 of Schedule 4 prevents modification of certain provisions of the European Communities Act 1972.

Section 57(2) states that a member of the Scottish Government has no power to act in a way that is incompatible with EU law.

However, repeal of the European Communities Act 1972 would not involve a devolved matter and the consequence would be that after withdrawal from the EU, Scotland would remain with the restriction that its legislation in devolved matters must continue to be compatible with EU law.

Who triggers article 50?

The referendum has no binding legal force and it would be open to Parliament to decide not to leave the EU, although politically this would be very unlikely. However, is it up to Parliament to decide? The conventional view is that giving notice under art. 50 falls within the Royal Prerogative and would be something for the Prime Minister. A contrary view has been expressed by various constitutional lawyers, such as Lord Pannick writing in The Times on 30 June.

“Article 50 notification commits the UK to withdrawal from the EU, and so is inconsistent with the 1972 act. Withdrawal is the object of the notification, and it is the legal effect. If, at the end of the negotiating period, parliament disagrees with the withdrawal which flows from the notification, there is nothing parliament could then do to prevent our withdrawal from the EU, which would frustrate the 1972 act. Therefore prerogative powers may not now be used.”

The new Prime Minister, whoever they may be, will be faced with the possibility of immediate legal challenge in the event of their deciding to give notification under article 50. This might well incline them to seek authorisation from Parliament.

Interesting times.