Could the UK invoke Article 50 to declare its intention to leave the EU, negotiate the terms of withdrawal, then put them to the public in the form of a second Leave/Remain referendum? Eoin O’Dell says it is possible the Court of Justice of the EU (CJEU) might accept this route, but it is hedged about with legal and constitutional uncertainties.
I still can’t believe the news about Brexit, and I suspect the same is true of many on both sides of the issue. Since then, there has been much talk about Article 50, and much speculation about the possibility of a second referendum to undo the first. In this brief post, I want to put those two issues together. First, Article 50 is an article of the Treaty on European Union inserted by the Treaty of Lisbon. It is the mechanism by which a Member State may leave the EU.
It provides in full as follows:
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- 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.
- 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.
- 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. - If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49 [of the Treaty on European Union].
Let us assume that, following the Brexit referendum vote and pursuant to the UK’s own constitutional requirements, the procedure in this Article is triggered, and agreement is reached between the UK and EU on the terms of a withdrawal agreement.
An excellent guide to the process is provided in the House of Lords’ European Committee Paper on The process of withdrawing from the European Union; a clear practical summary of the process is helpfully set out by the BBC EU spells out procedure for UK to leave; and Duncan French provides very clear analysis of the legal implications of the UK’s renegotiation and withdrawal. As to the necessary UK Parliamentary procedures, see Nick Barber, Tom Hickman and Jeff King on Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role and the replies by Carl Gardner’s Article 50, and UK constitutional law and Kenneth Armstrong Push Me, Pull You: Whose Hand on the Article 50 Trigger?.
My question is, could the UK government put that withdrawal agreement to a further referendum, asking in effect if the UK should ratify it and bring it into force? And if it does, is there any route by which a vote to reject the withdrawal agreement and to remain in the EU could be given effect? The terms of withdrawal would be clear, and the choice facing the voters would be more realistic and more focussed than in last week’s referendum. I will leave the politics of this to others, but I will raise here two of the (doubtless many, many) legal issues which arise.
The first issue is whether this is possible from the perspective of the UK’s constitutional requirements. I don’t see why not, but I welcome comments as to whether this is so. As with the current referendum, by virtue of the doctrine of Parliament Sovereignty, it would only be a pre-legislative and non-binding advisory referendum, but Parliament would be very slow indeed to decline to act accordingly.
The second issue is whether this is possible from the perspective of the Article 50 TEU (above). Here, things are a little more opaque. On a literal interpretation of the Article, it does not seem to provide for the suspension of the withdrawal process, but the CJEU has never tied itself to an exclusively literal approach to the European Treaties. Instead, as former CJEU Advocate General and retired Irish Supreme Court judge, Nial Fennelly, explains:
The characteristic element in the Court’s interpretative method is … [the] “teleological” approach, … that it is necessary to consider “the spirit, the general scheme and the wording,” supplemented later by consideration of “the system and objectives of the Treaty.” In more recent years, the idea of “context” has been added, and the prevailing wording, varying minimally from case to case, has been that it is necessary when interpreting a provision of Community law to consider “not only its wording, but also the context in which it occurs and the objects of the rules of which it is a part.”
I suspect that the CJEU would, on this basis, be able to find that the Article 50 process could be suspended or abandoned, but I would not wish to predict whether it would do so. It is a Court often noted for its realpolitik and pragmatism, but there are limits to how far it can or will go to accommodate political agreements. It might perhaps be asked for an advisory opinion on the issue. If the CJEU finds that suspension or abandonment of the Article 50 process is possible, if a second Brexit referendum were to be in favour of remain, if Parliament therefore indicated its intention not to ratify the withdrawal agreement, if the UK government consequently sought the suspension or abandonment of the Article 50 process, and if the other Member States – via the European Council – agreed, then the Article 50 process could be suspended or abandoned.
If suspension or abandonment is not possible, then the issue will turn on Article 50, paragraph 2 (above), which provides that the EU Treaties cease to apply to the departing Member State in two circumstances: either on the entry into force of the withdrawal agreement, or two years after Member State notifies the EU that it wished to begin negotiations for withdrawal “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. If a second Brexit referendum were to be in favour of remain, and Parliament therefore indicates its intention not to ratify the withdrawal agreement, the first alternative in Article 50 paragraph 2 is satisfied, and the withdrawal agreement would not come into force on that ground.
More complications arise under the second alternative, by which the withdrawal seems automatic after two years “unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”. So, the question is: could some form of words be agreed “to extend this period”indefinitely? And even if so, would the CJEU uphold it? Again, I would not wish to predict whether it would, and it might again be asked for an advisory opinion on the issue.
Rather less susceptible to a successful challenge would be a form words that clove more closely to Article 50 and did not expressly say that it would extend the period “indefinitely”. Instead, it might provide that the period would be extended until a withdrawal agreement enters into force. That could – and, in practice, probably would – amount to an indefinite extension, but it would be much closer to the spirit of Article 50, and well within the linguistic flexibility that has been shown in Treaty negotiations in the past. As before, I would not wish to predict whether the CJEU would uphold such a formulation, and an agreement to this effect might form the basis on which it could be asked for an advisory opinion on the issue. If the CJEU approves a form of words by which automatic withdrawal would be postponed until a withdrawal agreement enters into force, if a second Brexit referendum were to be in favour of remain, if Parliament therefore indicated its intention not to ratify the withdrawal agreement, if the UK government consequently sought the postponement of automatic withdrawal until a withdrawal agreement enters into force, and if the other Member States – via the European Council – agreed, then the second alternative in Article 50 paragraph 2 is satisfied, and the withdrawal agreement would not come into force on that ground.
I am even less clear on this EU issue than I am on the UK constitutional issue above, and I equally welcome comments as to whether this is legally possible. I leave the question of whether this is likely to the politicians.
Let us therefore assume that the UK would negotiate a withdrawal agreement pursuant to Article 50, and put it to the people in a referendum. Let us further assume that the result in that referendum is in favour of remain, such that the withdrawal agreement is rejected, and Parliament therefore declines to ratify that agreement and bring into force. In such circumstances, my question is this: could the UK rely on an agreement with the other Member States – via the European Council – either that the Article 50 process would be suspended or abandoned, or that any automatic withdrawal would be postponed until a withdrawal agreement enters into force? In either case, the result would be that the Article 50 process would have provided route, via a second Brexit referendum, to ensuring that the UK would not have left the EU. Time may well tell. Meanwhile, answers on a postcard …
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Note: this post first appeared at Cearta.ie.
Eoin O’Dell is a Fellow and Associate Professor at the School of Law, Trinity College Dublin.
I was watching Cameron questions of the 29, on youtube, he seems to have pointed to a good alternative. He said he has already got in touch with Samsung, one of the biggest UK partner…I think this is the best way to reverse the damage caused by the exit. Renegotiating the deal with corporations in order gain some leverage in face of EU, I mean, more balance, to prevent any form of retaliation.
Wherever choice has been made, it was made democratically, people have spoke. Democracy and Freedom are the most valuable rights hold in UK, therefore, I don’t think any commercial article has the power to suppress that, otherwise, the country would be vulnerable to foreign pressures or elite interest.
Now, let’s try to find a way to minimized the loss of the leaving by renegotiating directly with the biggest partners. USA has already said that noting will change…so, UK has gotten a great support that seem to be a way to encourage others to offer a deal similar to the one presented by USA.
Thanks for a good summary of the legal situation. In the scenario you outline, the electorate would be given a choice between an exit deal or resuming membership of the EU (I hope that is an accurate summary).
Any exit deal is likely to be highly unfavourable. The EU does not want to create a precedent in which a member state can exit and be ‘rewarded’ with a nice retirement package. The problem is that I cannot see the EU allowing a return to the status quo ante. That is, they are not going to allow the UK to just return as if nothing had happened. This is for two reasons: the first is again, to discourage other states embarking on a mad adventure like this; the second reason is that (I suspect) the EU has now found itself free of its ‘problem child’. The UK was always a thorn in the EU flesh, always demanding special treatment and opt outs (no Euro, no Schengen, etc), and the main obstacle to greater federalism and integration (de Gaulle was correct, in a sense). This problem has now removed itself. Why let it back? (I’m sure the idea of Farage and his MEPs returning is not something they would relish) Or, at most, why let it back without placing some sort of restraints on it to stop it causing more mischief?
So I cannot see it being possible to offer the electorate the choice of an exit deal or a return to membership as before. Perhaps a choice between a terrible exit deal and some diminished form of membership could be delivered, but I am not even that optimistic. I seriously fear that terrible political damage has already been done to British/EU relations, and that the EU will not, at least willingly, now offer the UK anything but the most wretched exit deal. The full extent of the calamity that has just happen has not fully sunk in. I hope I’m wrong, but that is what I sincerely believe.