Lisbon Treaty Article 50
Process of withdrawing notification if needed
I would much rather we didn’t try to leave the EU at all but, as Brexit means Brexit, we may well find ourselves in the position of our Government triggering the UK’s intent to leave under Article 50 (2) of the Lisbon Treaty.
Theresa May has said that the UK will not give notification under Article 50 until 2017. Actually I am far more worried about how our intention to leave is notified under Article 50 rather than when.
Many commentators have interpreted the relatively concise wording of Article 50 to mean that the process, once triggered is one-way and unstoppable. After 2-years the UK would cease to be a member of the EU and all EU treaties would cease to apply to the UK. Even if acceptable terms are agreed, the other 27 EU members would need to ratify the agreement and again if they cannot ratify the agreement then the UK would just cease to be members without any agreement.
Thus as soon as we trigger the process we effectively hand over all negotiating power to the EU who could just let the 2-year clock run down and the UK would become ever more desperate to get an agreement.
This obviously is not a great situation to be in and this document describes an alternative approach to Article 50 which would allow us to withdraw the notification if the UK can’t accept the terms or indeed the EU can’t ratify the agreed terms.
Article 50 states that any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. For the UK to be able to revoke the notification we will need to specify what our “constitutional requirements” are and how we will invoke them.
For the EU to agree to a UK ratification process it will need to be clearly democratic which could be another referendum or a parliamentary vote or a General Election.
As we are a Parliamentary democracy the most straightforward approach would be for the UK to pass an Act of Parliament, let’s call it the BREXIT BILL, that’s sets out a process that will conform to our constitutional requirements. As part of our constitutional requirements the UK can specify two conditions, one that the UK ratifies the agreement and another that the other EU Member States also ratify the agreement. If either of these conditions is not met then the UK will reserve the right to withdraw our notification of intent to leave issued under Article 50 (2).
The chart below sets out the process and highlights the ratification process and the UK’s right to withdraw notification to leave.
The ratification process will have been set out the Brexit Bill
- If the option of a further referendum was decided upon then the electorate will once again have a Leave or Remain decision to make but the terms of leaving will be known. Quite a different proposition from June 23rd.
- If it was decided that the matter would be put to the country by way of a General Election then it would be for each party to align with Leave or Remain in their manifesto.
- I would hope that if it was decided to ratify the proposed exit deal through a vote in Parliament then the vote should be free from party considerations or whips.
Leave or Remain
- If the deal is ratified then it will also need ratification by the other 27 EU members and the UK leaves the EU
- If the deal is not ratified by the UK then we revoke our notification of intent to leave the EU under Article 50 (2) and remain in the EU.
Richard Tunnicliffe discusses this in his blog site in an article Negotiation Brexit — Shades of Article 50 @howshouldwevote.
House of Lords review of the withdrawal process May 2016, discusses the ability of the UK to withdrawal notification in pages 4/5.