Article 50 of the Treaty of the European Union provides that ‘any member may decide to withdraw from the Union in accordance with its own constitutional requirements’. It also states that if the withdrawal agreement is not concluded within two years of notification, the treaties ‘shall cease to apply to the state in question’.
This means that at the end of the two years all rights and duties arising out of EU law for UK nationals and companies are extinguished. There is no other step. This is politically very significant, because merely by the passage of time the UK will lose access to the single market. Its products would thus begin to be subject to the common external tariff.
This also means that at the end of the two years the European Communities Act 1972, which is the foundation of EU law in the UK, would in practice cease to have effect. The 1972 Act only gives effect to the treaties as they stand. If the treaties stop having effect in the UK by virtue of Article 50, then all EU rights and duties will also have expired (although article 52 TEU will continue mentioning the UK as a territory of the EU until that treaty is formally amended).
Notification to the European Council of the intention to withdraw may, thus, have very significant legislative effects. The 1972 Act – and numerous other statutes that presuppose EU membership – will have been effectively amended.
For this reason, three constitutional lawyers have just argued that the Prime Minister does not have the power to trigger the process of Article 50 without the prior authorisation of Parliament (see Nick Barber, Tom Hickman and Jeff King, ‘Pulling the Article 50 Trigger: Parliament’s Indispensable Role‘ UK Constitutional Law Blog (27 June 2016)). They argue that it would be a legal paradox if an act of the prime minister, which is an exercise of the ‘royal prerogative’ or executive discretion, were to effectively amend a series of Acts of Parliament. This cannot be done according to our constitutional law.
On the other hand, the Prime Minister may claim that his authority derives from the people directly who spoke at the referendum, not indirectly through the Palace of Westminster. Interestingly, the Act that provided for the referendum, the European Union Referendum Act of 2015, is silent on all these matters.
For these uncertainties to be avoided, an Act of Parliament should ideally provide a framework before Article 50 notification is given. Such an Act would create a statutory power to begin the process of withdrawal but it could also outline what would happen to domestic law, in the event that the two-year deadline ended without agreement and the treaties ceased having effect. That law could list those domestic laws that would remain unaffected and those that would be terminated.
But these problems point to a general point of principle. It is manifestly obvious that the vote to leave the European Union has given us only imperfect guidance. The referendum has rejected one option, namely that of full membership of the EU, but it has not chosen another one in its place.
The policy choices facing the United Kingdom are now so many and the complexities so intricate, that only a full and patient discussion of all the options and their implications can do them justice. The referendum has not decided how the UK is to be related to the rest of Europe, or what replaces the legal framework of the EU after withdrawal or what new institutions will be needed to fill the gaps. These are matters of policy that can only be adequately and publicly deliberated and effectively decided by parliament, the only mechanism we have for taking fundamental political decisions according to our constitution.
A referendum can never replace the parliamentary process of deliberation and choice. It cannot provide the open examination and testing of options or the electoral accountability that is appropriate in a democracy. If this crisis is to be resolved, the business of government and the process of accountability must be restored to their proper place.
Pavlos Eleftheriadis is a barrister at Francis Taylor Building and a fellow in law at Mansfield College, Oxford
Edited by Hugo Dixon