Sunday 25 September 2016

Article 50 - again! Litigation; QMV and Trade agreements

1. Skeleton argument:

Monckton Chambers has published the skeleton argument to be used in the forthcoming High Court hearing by various interested parties (the People's Challenge) - Article 50 litigation: Interested Parties' skeleton argument.  The People’s Challenge IPs invite the Court to declare that the UK’s constitutional arrangements mean that only Parliament can lawfully “decide” to leave the EU for the purposes of Article 50 TEU; and that the Defendant may only “notify” such a decision to the European Council under Article 50(2) TEU once he has been properly authorised to do so by an Act of Parliament.

The skeleton argument
is redacted because the Government has not agreed to publication of the content of the Secretary of State’s detailed grounds.  The People’s Challenge Interested Parties have additionally applied to the Divisional Court for clarification of its Order made in July as they believe that the Government could (and should) make its case available so that the general public can understand its position. 

2.  Art 50 and QMV:

The voting procedures under Article 50  are of interest and the following is my (tentative) attempt to set out the situation.

The European Council acts by "Qualified Majority Voting" (QMV) unless the Treaties provide otherwise - (Treaty on European Union Article 16).  QMV rules changed from 1st November 2014.  A "transitional protocol" applies to any votes up to 31st March 2017 but I think that this may be safely disregarded in this context.

Article 50(1) raises no issues of voting.  It merely states that - "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."  It is therefore a matter for national law (not EU law) what those constitutional requirements are.  The litigation referred to above is concerned with what those requirements are.

Article 50(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."

TFEU Art 218(3) - "The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team."

The requirement, under Article 50(2), for the European Parliament's consent would be met by a simple majority in that Parliament.  See the article by Darren Harvey on the EU Law Analysis blog - What role for the European Parliament under Article 50? 

Article 50(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."  This is crystal clear - UNANIMITY is required to extend the 2 year period.

Article 50(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."

This leads to the qualified majority in the European Council for the withdrawal agreement under Article 50(2) being "at least 72% of the members of the Council representing Member States comprising at least 65% of the population of these States."

Council of Europe - Qualified Majority Voting

Trade agreements:

Many points have been raised concerning Article 50.  It is now, without doubt, the most discussed Article in the European Treaties!   To obtain a withdrawal agreement there will have to be agreement on what Article 50 refers to as the framework for the UK's future relationship with the Union.  There seems to be nothing, at this time, to really guide us further as to what degree of detail amounts to such a framework.  However that may be, a withdrawal agreement will not extend to detailing matters such as future trading arrangements.  A distinct trade agreement appears to be necessary for that.   Richard Corbett MEP (Yorkshire and Humber) discusses some of these matters in Truths and Myths about the months to come.

A widely held view is that a trade agreement would take a very long period of time to come to fruition and certainly well in excess of 2 years.  For example, see the Canadian position.  The EU and Canada launched CETA negotiations  in May 2009 and agreed on the content and its general strategy in June 2009.

Trade agreements are governed by the Treaty on the Functioning of the EU Articles 207 and 218 and they are a matter to which we shall, doubtless, return.  A useful briefing on the life cycle of EU trade agreements is available here

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