Essay: UK’s negotiation of withdrawal from the EU

06.05.2019
INTRODUCTION
On 1 January 1973, the United Kingdom became a member of the European Economic Community. On that date, EEC law took effect as part of the domestic law of the United Kingdom, in accordance with the European communities’ act 1972.In December 2015, the UK Parliament passed the European referendum act 2015 and on 23 June 2016 a UK-wide referendum took place which produced a majority in favour of leaving the EU. In order to leave the EU, however, the UK will have to follow the process set out in Art 50 of the Treaty of European Union (TEU). Its overarching theme is that the Brexit process is rendered highly problematic by the lack of any coherent conception of the British Constitution.
The concept of sovereignty has become very confused in the context of Brexit and the UK’s relations with the EU. Sovereignty claims are also bound up in three broader issues that are: The Referendum, the triggering of Article 50, and the Devolution aspect of Brexit.
The EU Referendum Act 2015 and the role of referendums in UK law
The EU Referendum was a creator of the EU Referendum Act 2015. It is not required in the Act that the UK Government implement its results, nor does the statute require any time limit for implementing a vote to leave the EU. It was an advisory rather than a mandatory referendum, enabling the electorate to express its opinion before any legislation might be introduced.
Consequences of EU Referendum
Yet the government does not seem minded to ignore the referendum result and stated in the policy paper, ‘The Process for Withdrawing from the European Union’, published in February 2016, that it is under a ‘democratic duty to give effect to the electorate’s decision.’
The triggering of Art 50 TEU
Article 50 TEU, earlier less known and little discussed, is now a current issue.
Its role in Brexit raises some queries regarding sovereignty – in fact, this time the role of parliament in an action that seems to be dominated by the executive.
The treaty provision that controls the UK’s exit from the EU is article 50. It was placed into the Treaty on European Union (TEU) by the Lisbon Treaty amendments in 2009 and provide some methods as to how withdrawal negotiations are to be governed. For instance, it declares how the EU will perform its side of the negotiations, that there is a 2-year renewable time limit for the negotiations and gives the voting arrangements by which to reach an agreement or to extend the deadline. Article 50 provides a process for determining the terms of separation, rather than setting out the details of any UK future trading relationship with the EU, which would be determined in a further agreement.
It seems the UK would now like some time before it provided formal notification under Article 50 TEU. There are benefit in waiting. It will provide time to prepare a negotiating plan, which at the time of writing does not appear to exist. The 2-year limit on withdrawal does not start until such notification. Once notification has been provided, then after 2- years the UK can be discarded from the EU if no Withdrawal Agreement has been resulted and there is no unity among member States for extending the time period. according to Article 50 the timing of notification is up to the UK, although the EU has been enjoining the UK to act quickly.
What are the ‘constitutional requirements’ commanding a decision of UK to withdraw from EU?
How is the UK to operate its side of the negotiations? The foundation is Article 50 of the Treaty on European Union (TEU). It reads:
“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 re-join, its request shall be subject to the procedure referred to in article 49.”
The prerogative and treaty making
The royal prerogative consists those rights of the Crown which invented in the archaic common-law privileges of the monarch rather than from a legal grant of authority by Parliament. The royal prerogative subsists by tradition and custom, not by any officially jotted-down code or constitution, and it has proved difficult to give a comprehensive record of prerogative powers. However, ‘Bradley and Ewing in their summary of the main areas of prerogative use today suggest that it includes powers relating to foreign affairs, e.g. – the making of treaties, the declaration of war and the making of peace, restraining aliens from entering the UK and the issue of passports.’ As Dicey defined it:
‘Every act which the executive government can lawfully do without authority of an Act of Parliament is done in virtue of this prerogative.’ If we follow Dicey then, an important question is whether the Government can trigger Art 50 legally without an Act of Parliament?
‘It is undisputed that a consequence of the Glorious Revolution was the establishment of the parliamentary right to control all of the Crown’s prerogatives through parliamentary sovereignty’. The prerogative is a remaining power source, whose particular instances may be deliberately replaced by the Parliament. However, there is now a growing argument that employment of the prerogative, even as a residual source of constitutional power, is problematic. As early as 1872, Walter Bagehot, argued that treaties could be just as significant as legislation. He also made the point that, while the consent of Parliament was required for ‘every word of the law’, such approval was not required ‘even as to the essence of the treaty’, a situation that he found ‘prima facie, ludicrous’. Indeed, as Black and Gordon remind us, it was the perception that secret agreements helped trigger the First World War that led to the development of a convention (‘the Ponsonby rules’) whereby some parliamentary scrutiny of treaties was introduced prior to ratification.
Further, the policy behind the EU 2011 Act, which mandated referendums and statutory approval of any EU treaty amendments with a significant impact for the UK, was in the words of then Foreign Secretary, William Hague, ‘a fundamental shift in power from Ministers of the Crown to Parliament and the voters themselves on the most important decisions of all: who gets to decide what’ on European integration, so that executive action in their absence would be clearly unconstitutional. So, there is proof of a shift from use of the prerogative to something perceived as being more democratic.
It is important to strain that negotiating EU withdrawal is not just any old treaty negotiation. Lord Denning famously compared ‘the impact of EU law in the UK to an incoming tide flowing up the UK legal system, with an undeniably profound impact’. The break of the UK from the EU, and EU law, is of extensive magnitude and significance, and it requires major constitutional changes in the UK, and institutional changes for the EU.