Article 50 and its implementation

On 4 February, the EU Parliament held a public hearing looking at how Article 50 TEU was implemented.

AFCO Public Hearing on the Assessment of the Implementation of Article 50 TEU | Hearings | Events | AFCO | Committees | European Parliament (europa.eu)

Also, on 16 February 2022, the EU Parliament issued an assessment of the Article 50 process - 

Assessment of the implementation of Article 50 (pdf) and Assessment of the implementation of Article 50 (html version)

This post notes some of the salient points in the assessment.

As always, the document has to be read in full. It identifies a number of problems with Article 50 and examines

the process required by the article from the moment a Member State initiates the leaving process.  

There is also criticism of the UK government's approach to the withdrawal process - 

• the withdrawal process was characterised, on the part of the UK, by protracted uncertainty from the outset, until the end of the negotiations 
• that the political and economic consequences of the decision to leave the Union are significant, believes that these were not genuinely and fully assessed by the UK prior to the decision to withdraw, which resulted in a lack of preparation for the procedure
• believes that British citizens had scant knowledge about the European Union and were not adequately informed about the far-reaching consequences of the decision to leave the Union. 

The withdrawal of the UK was "an unprecedented and extremely critical process for the European Union" and the EU sees the withdrawal as "regrettable." Nonetheless, the withdrawal "does not deviate the Union from its integration process."  (Comment: The idea of an "ever closer Union" was disliked from the outset by Brexit supporters)

There is recognition that Member States have a sovereign right to withdraw and that right is preserved by Article 50. The article allowed for the building of an enhanced relationship between the EU and the UK as a third country.

An interesting comment concerns the legally non-binding political declaration which emerged alongside the withdrawal agreement.  The EU regrets that this "gave the UK the legal grounds to not engage with crucial parts of its content, in particular those relating to foreign and security policy, which therefore formed no part of the negotiations."

The UK's withdrawal entailed the departure of an entire community of EU citizens. The European Parliament considers that it was particularly active in giving voice to citizen concerns and expectations during the withdrawal process BUT considers that the EU institutions could have done more to provide information to citizens during the different phases of the withdrawal.

The assessment also notes that in the run up to the referendum the European Parliament had limited engagement and this "left UK citizens, who were EU citizens at the time, without full access to information on the functioning of the EU and the implications of the withdrawal." The assessment then offers ideas for the EU to take forward including encouraging the Commission to bring forward a proposal to allow European political parties to finance referendum campaigns related to the implementation of the TEU or the TFEU. (Comment: The Commission is hardly likely to propose funding for any campaign to leave the EU. Some member States require a referendum before any new EU treaty can be adopted by that State).

The document is unhappy reading and the criticisms ought not to be dismissed as hindsight since many of the problems were more than evident at the time. 

A number of commentaries are of interest including -

Brexit and Parliament: The Anatomy of a Perfect Storm  - "The Westminster parliament lies at the heart of UK democracy. Yet its role and powers became increasingly controversial during the ‘Brexit’ process, following the 2016 referendum decision to leave the European Union. Fierce arguments were framed as ‘parliament versus people’, which fed a populist narrative and raised fundamental questions about where UK sovereignty should lie. This article charts the stages of parliament’s Brexit ‘perfect storm’, tracing its causes to four factors: the design of the referendum, a period of (unfamiliar) minority government, deeply divided political parties, and the weakness of parliamentary rules in facilitating a solution. In the end, the Brexit argument was primarily one inside the Conservative Party, but parliament got the blame."

and

UK and EU - Parliament-and-Brexit-report.pdf

"The Brexit process revealed many things. Not least, it taught us a lot about Parliament’s somewhat contested place in our system of government. Throughout the Article 50 period the House of Commons in particular wielded significant influence over a minority government – so much so that Theresa May was moved to criticise Parliament in a live address to the British people. So what have we learned? And where does Parliament go from here? This report draws on the expertise of some of the leading scholars in the field."

The notes below outline some of the key features in the Brexit process. The story is far from concluded.

*** Article 50 ***

Origin of Art 50:

The Treaty of Lisbon came into force on 1 December 2009 and, for the first time, a European Union Treaty contained a process by which a State could leave the EU. 

Before Lisbon, whether a State could leave and, if so, by what mechanism was a controversial issue - (see this 2016 EU Parliament briefing).

After Lisbon, the Treaty on European Union (TEU) contained Article 50 setting out a procedure for leaving but the article did not contain a clause permitting a State which had given notice of leaving to unilaterally withdraw that notice. It was not until December 2018 that the Court of Justice of the EU gave judgment in the Wightman confirming that notice could be unilaterally withdrawn - Court's Press release 10 December 2018 and the Court's Judgment.  Of course, the UK government had no intention of withdrawing the notice.

Referendum:

The UK Parliament legislated for the holding of a referendum on EU membership - European Union (Referendum) Act 2015.  

The 2015 Act did not require a leave vote to be implemented though, politically, it was clear that it would be.  

The Referendum had a number of problematic features.

1. The question of EU membership was a highly complex matter but was reduced to a binary IN / OUT vote which took place on 23 June 2016 without any clearly stated plans if the people voted to leave.

2. There was no requirement for any enhanced majority - (e.g. 70% of those voting to be in favour).

3. Further, the legislation failed to provide for agreement to Brexit in all four parts of the UK (England, Wales, Scotland and Northern Ireland) even though the UK has a considerable degree of devolved government. The Northern Ireland peace process stemmed from the 1998 Good Friday Agreement (GFA) and continuing EU membership was a crucial part of the background to the GFA.  

The actual referendum on 23 June 2016 resulted in a narrow (approx 52% to 48%) majority in favour of leaving. The turnout was 69.7% - Electoral Commission. Significantly, voters in Scotland and Northern Ireland opted for retaining EU membership.

Strategy:

At the time of the referendum the government had not presented either Parliament or the voter with any clear aims for negotiation of the future relationship with the EU. Some information was published as required by the 2015 Act but it received little or no attention either in the mainstream media or among politicians at Westminster. At best, the documents presented some possible models for the UK outside of the EU but did not indicate any particular choice in the event of a leave vote.

Alternatives to membership: possible models for the UK outside the EU and 

Rights and Obligations of EU Membership

See also "The best of both worlds: the UK's special status in a reformed EU"

It was not until almost 7 months after the referendum that the Prime Minister - (now Theresa May) - set out the government's negotiating objectives in a speech at Lancaster House on 17 January 2017.

The government's negotiating objectives for exiting the EU: PM speech - GOV.UK (www.gov.uk)

On 29 March 2017 the UK government gave notice of withdrawal to the EU - (i.e. "triggered Article 50"). Prior to this,  the Miller 1 case was heard concerning whether an Act of Parliament was required to authorise the government to trigger Article 50. The court ruled by a majority of 8 to 3 that an Act was required - Judgment of 24 January 2017 . Parliament then enacted the the European Union (Notification of Withdrawal) Act 2017 (Royal Assent 16 March 2017).   

A government plan had not properly crystallised by the time of the notice and did not do so until the summer of 2018 after a Cabinet "away day" at Chequers held on 6 July 2018 (over 2 years after the referendum) - Government statement following Cabinet away day at Chequers - GOV.UK (www.gov.uk)

The process:

The entire Brexit process was continually marked by stressful relations between the government and Parliament (especially the House of Commons where, until the general election of 2019, the government did not hold an overall majority). 

One example of the stressful relations was the need for the Humble Address of 1 November 2017 when MPs wished to see what were termed "sectoral analyses" (or impact assessments) of some 58 sectors of the UK economy. Ministers argued that providing the material to Parliament would prejudice negotiations with the EU - Law and Lawyers: "An Humble Address" to Her Majesty - 1st November 2017 (obiterj.blogspot.com)

The convoluted nature of the entire process is amply shown by a  useful timeline of the Brexit process published by the House of Commons Library - see Briefing Paper 7960 (6 January 2021).  

The UK is the first and only State to have invoked Article 50. Whether any others will choose to do so is an open question - Express 19 February 2022 and The Guardian 16 February 2022.

The UK left the EU at 2300 hrs GMT on 31 December 2020 and a transition (or implementation) period lasted until 31 December 2020. 

Relevant treaties between the UK and the EU are the Withdrawal Agreement of October 2019 (WA) and the Trade and Cooperation Agreement (TCA) December 2020.

The WA and the TCA were given legal effect in UK domestic law by the European Union (Withdrawal Agreement) Act 2020 and the European Union (Future Relationship) Act 2020.

The story is on-going as shown by matters such as the problems arising from the Northern Ireland Protocol -

Further materials:

Parliament: Brexit research and analysis

House of Lords - Brexit legislation - constitutional issues

House of Lords Library - Research on Brexit and the EU

UCL - Constitution Unit - report Parliament and Brexit

22 February 2022 - (22.2.22)