Sunday

17th Dec 2017

Column / Brexit Briefing

Who decides when to pull the Article 50 trigger?

  • The decision to begin unpicking the spider’s web of the UK’s relations with the EU will most likely be beset with legal uncertainty and difficulty. (Photo: UK Parliament)

One viral video, doing the rounds on social media, shows a cat in a Union Jack flag scratching to be let out through a door marked "Brexit". As soon as the door opens, the cat looks at the door, then at the man who opened it, then back at the door…without moving.

It’s now six weeks since 52 percent of Brits voted to leave the EU. But if Article 50 is now the most talked about section of the EU treaty (in London at least), we are no closer to seeing it put into action.

Thank you for reading EUobserver!

Subscribe now for a 30 day free trial.

  1. €150 per year
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

If you already have an account click here to login.

The apparent wish of Secretary of State for Exiting the European Union, David Davis, to wait until early 2017 to pull that two year pin on the Article 50 grenade, is frustrating in equal measure to European leaders and many people in the Conservative party. But the delay is probably just as well.

Who can trigger Article 50?

The answer to "who can trigger Article 50 and how" depends on which lawyer you ask.

Government ministers are under the impression that Theresa May doesn’t need Parliamentary approval to begin negotiating, and can use the prerogative powers that used to belong to the Queen.

David Cameron, for his part, promised during the campaign that he would immediately go to Brussels and begin negotiations, before changing his mind and resigning the day after the vote.

The London-based law firm Mischon de Reya has become an unlikely rallying point for Remain supporters, launching a court case that would require Theresa May to get formal approval from Parliament before she triggers Article 50.

Opening arguments on the case took place three weeks ago. It is likely to end up before the UK’s Supreme Court.

Meanwhile, the Constitutional Law Association — the UK's national body of constitutional law scholars and experts — insists that Parliament must enact a statute empowering or requiring the Prime Minister to issue notice under Article 50. However, they have no formal power to bring that about.

It’s at times like this that a written constitution would save everybody a lot of trouble, time and sizeable legal fees.

Stuck in court

Either way, there is a need for legal certainty. Article 50 specifies that a decision to leave the European Union must be made ‘in conformity to a Member State’s constitutional requirements’. Fall foul of this requirement and we could be stuck in the courts for years.

But while May has repeatedly said that "Brexit means Brexit", there is no time limit on when Article 50 will be invoked, and no clarity on what the terms of Brexit could look like.

The UK has far more to lose than the remaining EU-27 if it leaves the bloc without an alternative plan in place. This means the UK government wants to start the two year process only when it feels strong enough to get what it wants.

This could mean, as lawyer and writer David Allen Green suggested, that “the longer article 50 notification is put off, the greater the chance it will never be made ... And there is currently no reason or evidence to believe that, regardless of the referendum result, the notification will be sent at all.”

Act of Parliament

If triggering Article 50 does require an act of Parliament, getting the support of MPs would pose little challenge despite the Conservatives’ slim majority of 12.

The government pamphlet sent to all UK households in May and June was unequivocal in stating that “this is your decision. The Government will implement what you decide.”

It’s extremely hard to imagine Conservative and Labour MPs defying the will of the electorate, and getting away with it.

A snap election within the next six months remains a distinct possibility. With the Labour party more interested in its own civil war than being the opposition, there is every chance May would win a crushing victory.

But if a general election would give May a personal mandate to govern, the referendum already gives her administration a mandate to negotiate Brexit.

The Lords

The House of Lords, however, could be a different story. The unelected Lords, to their credit, include a healthy number of independent-minded troublemakers. Despite the chamber’s obvious democratic deficit, much of the most effective scrutiny of government laws is the work of those Lords.

Patience Wheatcroft, a senior former journalist and Conservative Peer, is among a cross-party group of Peers who threatened to block any Act, arguing that “people ought to be given an opportunity to think again”.

Yet, Wheatcroft's Conservative group is a minority in the Lords (243 out of 797), outnumbered by a motley collection of Labour, Liberal Democrat, and non-partisan Crossbench Peers, not to mention 26 Bishops.

It is perhaps appropriate that the decision to begin unpicking the spider’s web of the UK’s relations with the EU should be beset with legal uncertainty and difficulty.

For the moment, like video of the indecisive cat, unsure if it really wants to make those fateful steps, everyone is confused but we're still watching.

Column / Brexit Briefing

Bank’s reality check highlights Brexit vacuum

As in Brussels, London’s political and financial class takes its leave for the month of August. Westminster is populated only by selfie-taking tourists.

Column / Brexit Briefing

UK prepares to protect its golden goose in EU talks

Protecting the City will lie at the heart of the UK's EU exit negotiating strategy. But London financiers are among the most nervous Britons in the uncertain post-Brexit world.

UK releases legal arguments on Article 50

In its recently released legal defence the UK government argues that neither the Westminster parliament, nor Scotland, Northern Ireland or Wales has a say in when Britian will trigger the Brexit process.

Agenda

UK to file EU divorce This WEEK

UK prime minister Theresa May will trigger Article 50 of the EU treaty on Wednesday, with the EU expected to respond within 48 hours.

Brexit: EU trade talks to start in April

Talks on future trade relations to start mid-April, as Brussels waits for London to say what sort of relationship it wants, but last week's deal now 'Davis-proofed'.

News in Brief

  1. EU adopts 'track-and-trace' tobacco system
  2. Luxembourg appeals Amazon tax decision
  3. EU leaders agree to open phase 2 of Brexit talks
  4. Juncker: May made 'big efforts' on Brexit
  5. Merkel took 'tough' line on Russia at EU summit
  6. EU leaders added line supporting 'two-state' solution
  7. EU leaders agree to 20 European Universities by 2024
  8. Belgian courts end legal proceedings against Puigdemont

Stakeholders' Highlights

  1. Dialogue PlatformThe Gülen Community: Who to Believe - Politicians or Actions?" by Thomas Michel
  2. Plastics Recyclers Europe65% plastics recycling rate attainable by 2025 new study shows
  3. European Heart NetworkCommissioner Andriukaitis' Address to EHN on the Occasion of Its 25th Anniversary
  4. ACCACFOs Risk Losing Relevance If They Do Not Embrace Technology
  5. UNICEFMake the Digital World Safer for Children & Increase Access for the Most Disadvantaged
  6. European Jewish CongressWelcomes Recognition of Jerusalem as the Capital of Israel and Calls on EU States to Follow Suit
  7. Mission of China to the EUChina and EU Boost Innovation Cooperation Under Horizon 2020
  8. European Gaming & Betting AssociationJuncker’s "Political" Commission Leaves Gambling Reforms to the Court
  9. AJC Transatlantic InstituteAJC Applauds U.S. Recognition of Jerusalem as Israel’s Capital City
  10. EU2017EEEU Telecom Ministers Reached an Agreement on the 5G Roadmap
  11. European Friends of ArmeniaEU-Armenia Relations in the CEPA Era: What's Next?
  12. Mission of China to the EU16+1 Cooperation Injects New Vigour Into China-EU Ties

Latest News

  1. Catalonia, Brexit, and Uber on EU agenda This WEEK
  2. Macron and Merkel take tough line on Poland
  3. Eurozone future needs structural reforms, EU leaders told
  4. Showdown EU vote on asylum looking likely for next June
  5. EU stresses unity as it launches next phase of Brexit talks
  6. Polish PM ready for EU sanctions scrap
  7. Dutchman to lead powerful euro working group
  8. EU mulls post-Brexit balance of euro and non-eurozone states

Stakeholders' Highlights

  1. EPSUEU Blacklist of Tax Havens Is a Sham
  2. EU2017EERole of Culture in Building Cohesive Societies in Europe
  3. ILGA EuropeCongratulations to Austria - Court Overturns Barriers to Equal Marriage
  4. Centre Maurits CoppietersCelebrating Diversity, Citizenship and the European Project With Fundació Josep Irla
  5. European Healthy Lifestyle AllianceUnderstanding the Social Consequences of Obesity
  6. Union for the MediterraneanMediterranean Countries Commit to Strengthening Women's Role in Region
  7. Bio-Based IndustriesRegistration for BBI JU Stakeholder Forum about to close. Last chance to register!
  8. European Heart NetworkThe Time Is Ripe for Simplified Front-Of-Pack Nutrition Labelling
  9. Counter BalanceNew EU External Investment Plan Risks Sidelining Development Objectives
  10. EU2017EEEAS Calls for Eastern Partnership Countries to Enter EU Market Through Estonia
  11. Dialogue PlatformThe Turkey I No Longer Know
  12. World Vision7 Million Children at Risk in the DRC: Donor Meeting to Focus on Saving More Lives