Tuesday 2 May 2017

Will the Withdrawal Agreement from the EU agreement require a referendum?

Will any future treaties agreed with the European Union (EU) require a referendum in the UK?   The Independent "Theresa May warned of fresh court challenge ..." indicates that Dr Andrew Watt, a former radiologist from Glasgow, has sent a letter before action – usually the first step in taking disputes to court – to the Prime Minister, in which he argues that section 2 of the European Union Act 2011 requires a referendum before the UK can leave the EU.

Article 50 TEU:

Article 50(2) of the Treaty on European Union states:

"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."

Art 50(2) is about "the arrangements for withdrawal"and the European Council Negotiating Guidelines were agreed by the Council on 29th April.  They envisage a phased approach to negotiations - see the previous post for further discussion.

Once the withdrawal agreement has been concluded, it seems likely that a considerable number of separate agreements with the EU will be necessary to address specific areas including trade, security, aviation, shipping, policing, justice matters and so on.

It may also be the case that some agreements will not be concluded until AFTER the UK has left the EU.  That is because the two year timeframe set out in Article 50 TEU ends on 29 March 2019 unless extended.  (See Art 50 for the the process for extension of the time limit).

For the moment let us focus on the withdrawal agreement only.

The European Union Act 2011:

The legal question is whether the European Union Act 2011 will bite so as to require a referendum.

a)    A preliminary point is whether an agreement under Article 50(2) TEU is a "treaty."

Treaties are agreements binding in international law between parties with power (i.e. States and certain international organisations such as the UN, the EU) to enter into such agreements.

The Vienna Convention on the Law of Treaties defines Treaty for the purposes of the Convention as:  "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."

It therefore seems that any Article 50 agreement will be a Treaty for legal purposes.

b)    The European Union Act 2011 section 2 refers to Treaties which amend or replace the Treaty on European Union (TEU) or the Treaty on the Functioning of the EU (TFEU).  Unless the withdrawal agreement amends or replaces those treaties then section 2 has no effect.  It seems highly unlikely that the Withdrawal Agreement will do either of those things expressly

The TEU and TFEU are treaties binding the UK whilst it is a member.  Some consequential amendment of the treaties will be necessary once the UK leaves but that would be entirely an EU matter and the EU could put any amendments in place after Brexit day.

c)    The exemption condition - The 2011 Act provides that a treaty will be exempt from a referendum unless it falls within section 4 of the 2011 Act.  The cases set out in section 4 are all examples of where a treaty (or certain decisions) transfers power or competence to the EU.  The Withdrawal Agreement would be about power / competencies returning from the EU to the UK.  For this reason, the Withdrawal Agreement is unlikely to attract a referendum.   

Constitutional Reform and Governance Act 2010:

Part 2 of the Constitutional Reform and Governance Act 2010 is concerned with the ratification of treaties.  Significantly, it is not concerned with whether a referendum is required before any ratification may take place.

Post Brexit Treaties:

When the UK leaves the EU we can expect the European Communities Act 1972 and other Acts (e.g. the European Union Act 2011) to be repealed.  Any post-Brexit UK-EU Treaties will therefore be subject to the usual treaty-making processes. 


This brief analysis suggests that a referendum will not be required in relation to the eventual withdrawal agreement from the EU except in the unlikely event that the agreement were to amend or replace either the TEU or the TFEU and, even then, the change would have to be one which was not exempt from the referendum requirement.

The proposed "Great Repeal Bill" could bring forward amendments to the law so as to put this referendum question beyond any doubt.  The letter before action from Dr Watt may only serve to put the government on notice that such amendment may be required.

Comments are invited.

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