Invocation of the EU's withdrawal process for "Brexit"
On 29 March 2017, the United Kingdom (UK) invoked Article 50 of the Treaty on European Union (TEU) which began the member state's withdrawal, commonly known as Brexit, from the European Union (EU). In compliance with the TEU, the UK gave formal notice to the European Council of its intention to withdraw from the EU to allow withdrawal negotiations to begin.
The process of leaving the EU was initiated by a referendum held in June 2016 which resulted in 52% voting in favour of British withdrawal. In October 2016, the British prime minister, Theresa May, announced that Article 50 would be invoked by "the first quarter of 2017". On 24 January 2017 the Supreme Court ruled in "Miller I" that the process could not be initiated without an authorising Act of Parliament, and unanimously ruled against the Scottish Government's claim in respect of devolution. Consequently, the European Union (Notification of Withdrawal) Act 2017 empowering the prime minister to invoke Article 50 was enacted in March 2017.
Invocation of Article 50 occurred on 29 March 2017, when Tim Barrow, the Permanent Representative of the United Kingdom to the European Union, formally delivered by hand a letter signed by the prime minister to Donald Tusk, the president of the European Council in Brussels. The letter also contained the United Kingdom's intention to withdraw from the European Atomic Energy Community (EAEC or Euratom). This means that the UK was scheduled to cease being a member of the EU at the end of 29 March 2019 Brussels time (), which would be 23:00 on 29 March British time. This was extended by two weeks to give the Parliament of the United Kingdom time to reconsider its rejection of the agreement on withdrawal conditions, particularly in the House of Commons. The UK was due to leave the EU at the end of 12 April 2019 (24:00 Central European summer time; 23:00 British summer time), however a further "flexible" extension was granted until 31 October 2019 after talks at the European Council meeting on 10 April. After another extension in October 2019 and subsequent negotiations, a withdrawal agreement was negotiated in late October 2019 and ratified by both parties in January 2020: consequently the UK left the EU at 23:00 on 31 January 2020 and entered the transition period.
Background.
The first ever invocation of Article 50 of the Treaty on European Union was by the United Kingdom, after the Leave vote in the 2016 referendum on the United Kingdom's membership of the European Union.
When David Cameron resigned in June 2016, he stated that the next prime minister should activate Article 50 and begin negotiations with the EU.
At the time of the invocation of Article 50 the United Kingdom had been a full member state of the European Communities / European Union since its accession on 1 January 1973, some forty-four years earlier.
Views on invocation.
Necessity of invoking Article 50.
The British government stated that they would expect a leave vote to be followed by withdrawal, not by a second vote. In a leaflet sent out before the referendum, the British government stated "This is your decision. The Government will implement what you decide."
Although Cameron stated during the campaign that he would invoke Article 50 straight away in the event of a leave victory, he refused to allow the Civil Service to make any contingency plans, something the Foreign Affairs Select Committee later described as "an act of gross negligence".
Unlike the Parliamentary Voting System and Constituencies Act 2011, which contained provisions for an "alternative vote" system which would have become operative only if approved by the voting result in the referendum held under the Act, the European Union Referendum Act 2015 did not state that the government could lawfully invoke Article 50 without a further authorising Act of Parliament.
Following the referendum result, Cameron announced before the Conservative Party conference that he would resign by October, and that it would be for the incoming prime minister to invoke Article 50. He said that "A negotiation with the European Union will need to begin under a new Prime Minister, and I think it is right that this new Prime Minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU."
After a court case, the government introduced a bill that was passed as the European Union (Notification of Withdrawal) Act 2017.
Article 50 process.
Article 50 provides an invocation procedure whereby a member can notify the European Council and there is a negotiation period of up to two years, after which the treaties cease to apply with respect to that member—although a leaving agreement may be agreed by qualified majority voting. In this case, 20 remaining EU countries with a combined population of 65% must agree to the deal. Unless the Council of the European Union unanimously agrees to extensions, the timing for the UK leaving under the article is the mandatory period ending at the second anniversary of the country giving official notice to the EU. The assumption is that new agreements will be negotiated during the mandatory two-year period, but there is no legal requirement that agreements have to be made. Some aspects, such as new trade agreements, may be difficult to negotiate until after the UK has formally left the EU.
Renegotiation of membership terms.
Negotiations after invoking Article 50 cannot be used to renegotiate the conditions of future membership as Article 50 does not provide the legal basis of withdrawing a decision to leave.
On the other hand, the constitutional lawyer and retired German Federal Constitutional Court judge, Udo Di Fabio, has stated that
A February 2016 briefing note for the European Parliament stated that a withdrawal from the EU ends, from then on, the application of the EU Treaties in the withdrawing state, although any national acts previously adopted for implementing or transposing EU law would remain valid until amended or repealed, and a withdrawal agreement would need to deal with phasing-out EU financial programmes. The note mentions that a member withdrawing from the EU would need to enact its own new legislation in any field of exclusive EU competence, and that complete isolation of a withdrawing state would be impossible if there is to be a future relationship between the former member and the EU, but that a withdrawal agreement could have transitional provisions for rights deriving from EU citizenship and other rights deriving from EU law that the withdrawal would otherwise extinguish. The Common Fisheries Policy is one of the exclusive competences reserved for the European Union; others concern customs union, competition rules, monetary policy and concluding international agreements.
In oral evidence to a Select Committee of the House of Lords in March 2016, one of the legal experts (David Edward) stated that the German text of Article 50 could be taken to mean that the structure of future relations between the UK and EU will already have been established at the point when withdrawal takes place, which could be taken as a difference from the English text "the Union shall negotiate and conclude an agreement with the withdrawing state setting out the arrangements for its withdrawal and taking account of the framework for its future relationship with the Union".
Arguments for moving slowly.
Nicolas J. Firzli of the World Pensions Council (WPC) argued in July 2016 that it could be in Britain's national interest to proceed slowly in the following months; Her Majesty's Government might want to push Brussels to accept the principles of a free trade deal before invoking Article 50, hopefully gaining support from some other member states whose economy is strongly tied to the UK, thus "allowing a more nimble union to focus on the free trade of goods and services without undue bureaucratic burdens, modern antitrust law and stronger external borders, leaving the rest to member states".
May confirmed that discussions with the EU would not start in 2016: "I want to work with... the European council in a constructive spirit to make this a sensible and orderly departure", she said. "All of us will need time to prepare for these negotiations and the United Kingdom will not invoke article 50 until our objectives are clear." In a joint press conference with May on 20 July, Germany's Chancellor Angela Merkel supported the UK's position in this respect: "We all have an interest in this matter being carefully prepared, positions being clearly defined and delineated. I think it is absolutely necessary to have a certain time to prepare for that."
Scottish Parliament.
In February 2017, the Scottish Parliament voted with overwhelming majority against invoking Article 50. After the British Government had nevertheless chosen to invoke Article 50, the Scottish Government was formally authorised by the Parliament by a vote of 69 to 59 to seek to hold a second Scottish independence referendum.
Pre-notification negotiations.
Prior to the British Government's invocation of Article 50, the UK stayed a member of the EU, had to continue to fulfil all EU-related treaties including possible future agreements, and was legally treated as a member. The EU has no framework to exclude the UK—or any member—as long as Article 50 was not invoked, and the UK did not violate EU laws. However, if the UK had breached EU law significantly, there were legal venues to discharge the UK from the EU via Article 7, the so-called "nuclear option" which allows the EU to cancel membership of a state that breaches fundamental EU principles, a test that is hard to pass. Article 7 does not allow forced cancellation of membership, only denial of rights such as free trade, free movement and voting rights.
At a meeting of the Heads of Government of the other states in June 2016, leaders decided that they would not start any negotiation before the UK formally invoked Article 50. Consequently, the president of the European Commission, Jean-Claude Juncker, ordered all members of the EU Commission not to engage in any kind of contact with the UK's parties regarding Brexit. Media statements of various kinds still occurred. For example, on 29 June 2016, Tusk told the UK that they would not be allowed access to the European Single Market unless they accept its four freedoms of goods, capital, services, and people. Merkel said, "We'll ensure that negotiations don't take place according to the principle of cherry-picking... It must and will make a noticeable difference whether a country wants to be a member of the family of the European Union or not".
To strike and extend trade agreements between the UK and non-EU states, the Department for International Trade (DIT) was created by Theresa May, shortly after she took office on 13 July 2016. As of February 2017, the DIT employs about 200 trade negotiators and is overseen by Liam Fox, the Secretary of State for International Trade.
Subjects of negotiation.
Since Article 50 has been invoked, the United Kingdom will negotiate with the European Union the status of the 1.2 million British citizens living in the EU, the status of the 3.2 million EU nationals living in the UK. Issues relating to immigration, free trade, the freedom of movement, the Irish border, intelligence-sharing and financial services will also be discussed.
Process.
Initial speculation.
During the referendum David Cameron stated that, "If the British people vote to leave, [they] would rightly expect [the invoking of Article 50] to start straight away", and there was speculation that he would do this on the morning with Eurosceptic MPs calling for caution to assess the negotiating position and Jeremy Corbyn calling for immediate invocation. During a 27 June 2016 meeting, the Cabinet decided to establish a unit of civil servants, headed by senior Conservative Oliver Letwin, who would proceed with "intensive work on the issues that will need to be worked through in order to present options and advice to a new Prime Minister and a new Cabinet".
Conservative Party leadership election.
Instead of invoking Article 50 Cameron resigned as prime minister, leaving the timing to a successor. There was speculation in the UK that it would be delayed, and the European Commission in July 2016 believed that Article 50 notification would not be made before September 2017.
Following the referendum result, Cameron announced that he would resign before the Conservative party conference in October and that it would be for the incoming prime minister to invoke Article 50:
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Cameron made it clear that