25th June 2016
“Is there any other point to which you would wish to draw my attention?”
“To the curious incident of the dog in the night-time.”
“The dog did nothing in the night-time.”
“That was the curious incident,” remarked Sherlock Holmes.
– The Adventure of Silver Blaze
On Thursday 23rd June 2016 there was a historic referendum vote. A clear and decisive majority – though not a large majority – voted for the United Kingdom to leave the European Union.
And the following day, Friday 24th June 2016, something perhaps just as significant did not happen. The UK did not send to the EU the notification under Article 50 of the Lisbon Treaty on European Union which would have commenced the withdrawal process.
The Article 50 process is the only practical means by which the UK can leave the EU. There are other theoretical means – which would mean effectively the UK unilaterally renouncing its treaty obligations – but as the UK wants to be taken seriously in future treaty making, such approaches would lose credibility.
And so unless and until the Article 50 process is commenced and completed, the UK will stay as a member of the EU.
In short: no Article 50, no Brexit.
It is worth taking a moment to read Article 50, as the detail of its provisions will shape what (if anything) happens next:
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.
You will see from Article 50(1) that it is for the Member State to make the notification. Nobody else can: not the European Parliament, not the European Council or its President, not the European Commission, and not any other Member States.
So unless the Article 50(1) notification is made by a Member State, the provisions of Article 50 do not get triggered to begin with.
And it is entirely a matter for the Member State to choose whether to make the notification and, if so, when.
There is an interesting question as to what “its own constitutional requirements” means in the case of the UK, which does not have a codified constitution: it is the sort of thing about which a thousand constitutional law essays could be written, and no doubt will be.
In my view, it could mean the Prime Minister simply making the notification as an exercise of the prerogative, following the referendum result. Or it could mean a prior parliamentary vote. But in either case, it is a matter for the UK.
If it is a notification which can be made by a Prime Minister once the referendum vote result was known, then it was a notification which could have been sent yesterday.
That such a speedy notification would be made was certainly the impression David Cameron sought to give when the referendum was announced back in February:
Then there is the legality. I want to spell out this point very carefully. If the British people vote to leave there is only one way to bring that about – and that is to trigger Article 50 of the Treaties and begin the process of exit.
And the British people would rightly expect that to start straight away.
Let me be absolutely clear how this works. It triggers a 2-year time period to negotiate the arrangements for exit.
At the end of this period, if no agreement is in place then exit is automatic unless every 1 of the 27 other EU member states agrees to a delay.
If you read this carefully, you will spot that it is quite deftly worded: Cameron was not committing himself to making the notification. It was instead something which would be “rightly expected”. He did not promise to meet that “expectation”.
But in his (resignation) statement yesterday, Cameron said something different about Article 50:
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.
So Cameron has gone from it being “rightly” expected that the notification be made by him straight away, to it being “right” that the decision be made later by somebody else at the time of their choosing.
The fact is that the longer the Article 50 notification is put off, the greater the chance it will never be made at all. This is because the longer the delay, the more likely it will be that events will intervene or excuses will be contrived.
There will be those who will say: of course, the notification under Article 50 cannot take place straight away – don’t you realise it is part of a process? The UK should negotiate as much as possible before the notification is made and the two year deadline is triggered.
They may have a point, but pretty soon they will perhaps become self-conscious of explaining away why the notification has not been made quite just yet. It may dawn on such people that the notification may never be made at all.
And so long as the Article 50 notification is not made, the UK continues to be a full member of the EU as it was before the referendum took place; indeed, as if the referendum never took place at all.
The Article 50 notification also has another side to it: unless and until it is made, there is no obligation on the European Union to negotiate with a Member State about to leave.
As I set out yesterday at the Financial Times, this means there is a stand-off:
Nothing can force the UK to press the notification button, and nothing can force the EU to negotiate until it is pressed. It is entirely a matter for a Member State to decide whether to make the notification and, if so, when. In turn, there is no obligation on the EU to enter into negotiations until the notification is made. There is therefore a stalemate. If this were game of chess, a draw would now be offered.
Stalemates can last a long time. And unless there is political will to resolve it, this stalemate will not resolve itself.
There is no indication that UK politicians – including those like Boris Johnson and Michael Gove who are possible successors to Cameron – are in any hurry to make the Article 50 notification.
It is not impossible to imagine that the Article 50 notification will never be made, and that the possibility that it may one day be made will become another routine feature of UK politics – a sort of embedded threat which comes and goes out of focus. The notification will be made one day, politicians and pundits will say, but not yet.
And whilst it is not made, then other ways of solving the problem created by the referendum result may present themselves: another referendum, perhaps, so that UK voters can give the “correct” result, or a general election where EU membership is a manifesto issue, or some other thing.
This will not please Leave campaigners, and rightly so. It means the result of the referendum will be effectively ignored. But that was always possible, as it was set up deliberately as a non-binding referendum (unlike the Alternative Vote referendum, which was designed to have binding effect if there was a “yes” vote, which there wasn’t).
“Of course, they will respect the popular vote. They would dare not ignore it!” is the cry.
People saying this have a good point, but they should also remember a ship which never did get called Boaty McBoatface.
In my view, if the Article 50 notification was not sent yesterday – the very day after the Leave result – there is a strong chance it will never be sent.
If this view is wrong, it remains the case that those with a sincere interest in the issue of UK’s membership – whether Remainers or Leavers – should keep their eyes on the Article 50 notification, regardless of noise and bluster and excuses.
As long as the notification is not sent, the UK remains part of the EU.
And there is currently no reason or evidence to believe that, regardless of the referendum result, the notification will be sent at all.
ESTRAGON: Well, shall we Leave?
VLADIMIR: Yes, let’s Leave.
(They do not send the Article 50 Notification.)
Reprinted from Jack of Kent Blog