The two-year time limit stipulated in Article 50, argues Philip Allott (University of Cambridge), is wildly unrealistic: its drafters never anticipated that a large member state would ever leave the EU. In this legal opinion, he sets out how the ECJ could extend the withdrawal period, thereby allowing the UK to leave in an orderly fashion.
The UK’s scheduled withdrawal from the EU next March – quite possibly without a deal – has led to general legal confusion. It may be useful to identify legal aspects of the situation which are, in my opinion, beyond reasonable doubt. The underlying legal situation might now be irremediably corrupted, but it may still be worth setting out a legal opinion that could have been given at any time during the Article 50 process and which, in my view, still applies. One purpose of a framework legal opinion of this kind is to allow other people to express their own opinion on the same matters as precisely as possible.
1. The UK notification of intention to withdraw from the EU may be withdrawn at any time. It is a notification of intention to withdraw. It is not a notification of withdrawal, notwithstanding the erroneous title of the European Union (Notification of Withdrawal) Act 2017. (Section 1(1) of the Act is correct.) If the intention changes, the European Council could be so informed and the negotiation of a withdrawal agreement could cease. Many treaties contain a provision allowing for ‘notification of withdrawal’ by a contracting party (not including the word ‘intention’).
2. The period of negotiation of a withdrawal agreement can be extended beyond 29 March 2019. Article 50, paragraph 3, of the Treaty on European Union provides as follows. “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.”
(a) Given the catastrophic consequences, in the UK and the EU and across the world, of a UK withdrawal without an agreement, it would surely be a grave breach of public responsibility on both sides to fail to extend the period of negotiation – a failure that could constitute a breach of UK public law and/or of EU law.
(b) The negotiation of international agreements on a large scale always takes many more than two years. A withdrawal agreement between the UK and the EU would affect every aspect of two vastly complex constitutional and substantive law systems, from the broadest to the most detailed levels, and the constitutional and substantive law systems of 27 other states, not to mention its worldwide effects.
(c) It could not possibly be expected to enter into force two years after the start of its negotiation, given that, to enter into force, it must be concluded by the European Council, with the consent of the European Parliament, subject to ratification by 28 states – processes that could typically take many years.
(d) Such a wildly unrealistic two-year time-limit suggests that the drafters of Article 50 had in mind that there was no realistic prospect that it would ever apply to one of the largest member states. One of the principal drafters has confirmed this.
(e) Article 50(3) could have been drafted to refer to ‘the conclusion of the withdrawal agreement’ as the fact that cancels the two-year time-limit. It was not so drafted. It refers to ‘the entry into force of the withdrawal agreement’. A withdrawal agreement with the UK could not have been expected to enter into force within two years from the date of the UK’s notification of intention to withdraw (see para. 2(b) and (c) above).
(f) It follows that the European Court of Justice of the EU could well decide that the correct interpretation of Article 50 of the Treaty on European Union is that the article cannot be applied as it stands in the case of the notification of an intention to withdraw by one of the largest member states. This matter could be before the European Court directly or by way of a request from a national court for a preliminary ruling.
(g) A ‘general rule’ for the interpretation of treaties is set out in Article 31 of the Vienna Convention on the Law of Treaties (1969). “(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose...”
(h) Article 32 sets out ‘supplementary means of interpretation’. “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”
3. Extending the period of negotiation would allow a perfectly orderly UK withdrawal from the EU.
(a) In the light of the precedent of UK accession to the European Communities, there could be an interim period between the conclusion of a withdrawal agreement and its entry into force. During that time, the UK would remain a member state and would be subject to EU law and would be entitled and obliged to participate in the work of the EU and the decision-making of its institutions.
(b) A withdrawal agreement could not change that situation, since any such change would require amendments to the EU Treaties, amendments which would only take effect on the entry into force of the withdrawal agreement.
(c) In the light of the same precedent, there could be a transitional period after the entry into force of a withdrawal agreement when the UK, no longer a member state, and the EU institutions are dealing with consequences of the new situation. The UK would not participate in the decision-making of the EU institutions during that period, except to the extent that the withdrawal agreement provided otherwise.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Philip Allott is Professor Emeritus of International Public Law at Cambridge University and a Fellow of Trinity College Cambridge. As a Foreign and Commonwealth Office legal adviser, he participated in the UK’s accession negotiations to the European Communities and was the first Legal Counsellor in the UK Permanent Representation to the European Communities in Brussels.
To use precedent in a situation where a precedent doesn’t exist is pointless, no one has used article 50 before. I agree that two years is nowhere near long enough but all 28 countries discussed and crafted this contract, a rule or law is just an agreement between people, it may be stupid but it is an agreement. Two people may make a suicide pact, we triggered article 50. We have, as a country, participated in a crazy round of non-negotiation and we do not have until next March, we have until mid November when we need to make a statement with the EU27 on what we are going to do or we will seem even more politically and economically incompetent to the world in general than we do now. Business will not stand for more uncertainty, big or small they need to know. The EU27 have lives to get on with, we are history. I am a remainer, I will always feel part of the EU as it is a greater part of Europe. Yes I know that the continent could better be described as Africa-Asia but the little bit of it that I am interested in is what we term Europe.
I agree that the two year period is not long enough to work through the complexities of leaving but we should have raised this point in 2017 and negotiated an extension then, now is too late, like trying to leave the operating table after they have given you the anaesthetic, you’re going nowhere.
Anyway, I know that I am being presumptuous writing this to you as you are an expert and I do respect experts, it’s just nice to get my thoughts off my chest.
To Barbara Boulton I would say that this issue is far too important to worry about whether (as she rightly says) we should have raised this point in 2017 – or indeed earlier.
To Philip Allott I would say – absolutely correct. Please ensure that your assessment is drawn to the attention of both Government and Opposition at high level. While business undoubtedly seeks certainty, that commodity will not be available for some time to come and continued uncertainty is better than a gadarene rush into calamity.
Extending the negotiations would not be in the interest of anybody, imho
The poor old people who have voted for Brexit, have no other chance to learn about the consequences than to experience them for a month or two.
I hope that this will cure the divide and enable the public discourse to focus on the legit fury of the poor old Brexit voters who have had the wool pulled over their eyes by the rich Brexiteer politicians.
Nice idea in an ideal world, but ideal world doesn’t exist.
I don’t think the U.K. could sustain two more years of the existing politricks.
In any case, we will withdraw in March 19, it looks increasingly as if the contentious issues may be filibustered, swept under the carpet. Sorted in smoke filled rooms later on.
Reasons? It’s in the interest of both sides to have a good deal similar to today’s existing.
But the unelected dictators cannot be seen to be weak or that’s will be the end of their power base.
They don’t know it yet but it’s already finished.
Either it will self destruct or it will become a democracy. If it was the latter I would have voted to stay. Because I have a vote!!!!!
This is a fascinating argument which I think could hold immense traction in the ECJ.
How does it get to the ECJ? Would the UK government have to bring a case, or could the EU bring it? Could a private citizen bring a case.
I have often thought that 2 years for disentanglement was utter madness and bound to end in tears. From here it looks like I was right, but how can this be implemented without a UK government that really understands the immense task before it?
Obvious error – secession under Article 50 is an **exclusive Union competence**, decided by majority vote, and thus is not subjective to ratification by remaining member states.
Tosh.
The UK agreed and ratified Article 50, but Allott now thinks the UK can turn round and say, well, this isn’t going well, so we will rewrite the whole thing as suits us.
Tosh.
But thanks to Allott for reminding us of the enduring me me me arrogance of the English
It is more than a legal question – there are other political issues that arise and even if it should not be the case, it often can be the case that a court making a constitutional decision will find somewhere to hang its hat and take a politically expedient course.
Most immediately there are elections to the European Parliament taking place in May 2019. If we extend the Article 50 notice period, or withdraw the notice, do we become bound as members of the EU to take part in those elections and elect representatives to the new parliament? I suspect this is something all parties would really like to avoid, but avoidance politically becomes an act of exceptionalism to accommodate the UK’s situation, which is something the rest of the EU have been very keen to avoid.
(There is also the shenanigans question of the political mood in the UK – a reasonable ‘what if’ is to ask what if the opposition parties stand aside for a ‘new referendum’ slate to contest those elections, and what those results could look like).
And then the current EU budget period ends at the end of 2020. If the Article 50 notice is withdrawn or the notice period extended beyond then, doesn’t the UK need to be involved in negotiating and then participating in the new budget? That raises political questions both in the UK – it would be a hard sell from the current government to their back benchers – and in the rest of the EU – what damage will the UK do as parties to this negotiation without a long term interest.
My suspicion is that whilst a legal opinion about this is interesting, the political reality will mean that if the question comes to be decided the ECJ will find a way to decline to extend or to accept a withdrawal.
All hypothetical of course, for the moment at least. We shall see.