UK decides when to trigger article 50, not the EU, say legal experts

New Conservative government must act quickly to clarify UK-EU position

Only the UK is capable of starting the process of divorcing from the EU by triggering article 50, but a second referendum cannot be ruled out, legal experts have clarified.

Since the Leave vote was delivered last week, the UK and EU have been locked in stalemate over activating the formal process for a Brexit to occur, with leaders on both sides standing firm.

The referendum is not legally binding in UK law and does not trigger withdrawal from the union under EU law. To begin the process, under article 50 of the Treaty on the European Union (TEU), the UK must notify the European Council (EC) of its intention to leave the EU. After doing so, the UK has two years to complete its withdrawal - an extension may be granted, but this is subject to all EC members agreeing.

Robin Tilbrook, principal solicitor at Tilbrook's Solicitors and chairman of the English Democrats, told SJ: 'Article 50 of the Lisbon Treaty is simple to activate and it is entirely in the hands of the UK as a member state to do so in accordance with UK constitutional arrangements. The "royal prerogative" gives that power to the prime minister.'

'The other constitutional procedure is internal,' he said. 'There must be a substantial repeal by the UK's Westminster parliament of the European Communities Act 1972, perhaps with some saving provisions.'

Earlier this week, David Cameron, who is to step down as prime minister later this year, told the House of Commons that article 50 would need to be triggered by his successor.

The chancellor, George Osborne, added that only the UK could begin the process of leaving the EU by activating article 50 and that it 'should only do that when there is a clear view about what new arrangements we are seeking with our European neighbours.'

However, the EC president, Jean-Claude Juncker, has urged the UK to clarify its position and has banned all EU officials from having any talks with the UK until it activates article 50. MEPs also called for the UK to activate article 50 as soon as possible.

Second referendum?

Possible Conservative leader candidate Jeremy Hunt, writing in The Telegraph, said the UK must not invoke article 50 straightaway. Rather, he has proposed negotiating a new deal with the EU that will form the basis of a fresh Conservative manifesto at an early general election or, alternatively, to hold a second referendum on the new relationship.

Mark Elliot, professor of public law at the University of Cambridge, told BBC Radio 4's Law in Action programme that either option was possible. 'It is becoming increasingly clear that the referendum we've had clarifies that there is a majority in favour of not retaining our current relationship with the EU. What that has not resolved is whether or what kind of relationship we want to have in the future.'

'By holding a referendum we flirted with the idea of direct democracy and putting a question to the whole electorate, but fundamentally, the UK is a parliamentary democracy. My view is that if there was an election of that nature that delivered a clear majority in favour of a particular way forward, then I would see that as the most significant factor and the referendum would then form part of the backdrop to that.'

Steve Peers, professor of European and human rights law at the University of Essex, told the programme that it was not inevitable that article 50 would be triggered.

'I think it's maybe 70-30 likely that we will, but one factor is: would the EU offer a re-renegotiation? It doesn't look like it at the moment but the Poles would be willing to do it and maybe if they convince a few other countries, they've got a group of Eastern European countries that might also be willing to do it.'

Peers believes the UK could have informal talks with individual member states but would remain at a disadvantage to the EU as a whole.

'We don't have a negotiating position and what is going to happen in the next few months is that the EU has a head start. They can start to discuss their negotiating position before we've started to formulate ours under a new government.'

Catherine Barnard, professor of EU and employment law at the University of Cambridge, told the programme that Angela Merkel holds the key to any discussions going forward.

'Crucially, although the EU institutions will have a key role to play, we know the most important player in practice is Germany. There could be some discussions going at a bilateral level between the UK and Germany about what Germany might countenance.'

Carl Gardner, a former government lawyer, told SJ that there was no legal obligation on the UK to trigger article 50 withdrawal and if it decided against doing so, it would legally remain in the EU.

'The EU side can choose to talk informally with Britain before article 50 notification if it wants to. But it doesn't have to do anything, either. It can simply refuse any talks until the formal withdrawal notice is given. During the campaign, Vote Leave suggested the UK could in effect dictate the timetable, but that was so obviously, naïvely wrong, as to amount, in my view, to a lie.

'In reality, if later this year Britain has a government with a Brexit plan, I expect the timing of talks and article 50 notice to be agreed between the UK and EU sides.'

Last week Gardner said the new Conservative government would play a significant role in any future agreement with the EU.

The five-way race for leadership includes eurosceptic home secretary Theresa May and work and pensions secretary Stephen Crabb, who both voted for the UK to remain in the EU. The other candidates include justice secretary Michael Gove, minister Andrea Leadsom, and MP Liam Fox, who all voted leave.

 

Matthew Rogers is a legal reporter at Solicitors Journal @sportslawmatt matthew.rogers@solicitorsjournal.co.uk