The historical referendum result that convulsed the United Kingdom in the summer of 2016, is quickly starting to show case the apparent legal and political weaknesses of Article 50, due to the electorate being misinformed of the implications of leaving the European Union. Pre-referendum debates majorly placed focus upon the functions of the EU, this disabled the ability for the electorate to ascertain information on what would happen in the eventuality that the UK would leave. This, in essence, has lead to the process of eliminating the foundation of EU law in the UK being unclear. 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’. Another provision of this Article is that the State in question is limited to a time frame of two years to arrive to upon a withdrawal agreement, ‘unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period’. Therefore, one may argue that Article 50 is not fit for purpose due to the improbability of the process of a Member State leaving the EU.
During the two year negotiation period, the UK cannot participate in discussions concerning it in EU institutions such as the European Council and the Council involving the Member States’ ministers. This connotes that the UK will not be included within the process of creating the negotiation mandate.
The current process for withdrawal from the EU delineates unreliability which is set out in article 50 of the Treaty on European Union implemented in 2009. Guiliano Amato, former Prime Minister of Italy, who helped draft the Lisbon Treaty, stated that his ‘intention was that it should be a classic safety valve that was there, but never used’. This provides strong evidence to corroborate this argument as it depicts that Article 50 does not give Member States who wish to leave clarity on the course of action for this divorce. Thus, the process lacks authoritative example and remains obscure in its meaning.
The use of Article 50 as a tool to renegotiate the terms of the UK’s membership of the EU would be considered imprudent. The Treaty drafter’s intention was not to create Article 50 to be used for the purpose of renegotiating or amending the EU membership terms but rather to trigger negotiations on the UK’s complete departure from the EU. It would be considered foolish behavior to trigger Article 50 with the intention for amendment only and would expose political weakness for the UK because once intention to leave has been given, the withdrawing member state will be forced out following the two-year time period or would be forced to agree on terms set by the EU in order to remain a Member State.
It is clear that the electorate have now established that article 50 may be perceived as a one-way street in which preparations to leave must now have come into being because, in practice, there is no retreat to the previous position. The UK appears to be in a crippling sphere as there is still no settled intention concerning the favoured post-Brexit choice therefore forcing the activation of Article 50 TEU to remain at a standstill. It is evidential that Article 50 carries a lot of legal and political weaknesses and this is entailed within the article which states upon account of notification to withdraw, a two-year final preparation procedure to exit commences. Certainly, as the time ticks away, the UK’s negotiating ability to obtain strong ties in terms of economic deals with the rest of the EU significantly dilutes. The underpinning element for this assumption is that the EU will protect its well established position and persistent existence in an attempt to penalize the UK and as a knock on defend the EU from subsiding. If the UK act in a neglecting manner and fail to set in motion Article 50 process they could be in breach of their duty and obligations to act in good faith as outlined under Article 4(3) of the Treaty on European Union which exposes a legal weakness as it could as a knock on lead to proceedings taking place in the ECJ.
Article 50 articulates that the withdrawal agreement only need take into account the framework for its (the Member State’s) future relationship with the Union. This subsists vagueness within the meaning of ‘taking into account future relations’ as it presupposes that if the withdrawing state does not arrive at a corresponding future relationship agreement, they leave the Union without any elaboration after the two-year period. Ultimately, this is a major legal and political risk and weakness in a sense because it could affect the UK’s trade terms as the remainder of the EU is more than likely to have a protectionist approach when negotiating which as a knock on could result in weaker deals and terms.
Furthermore, triggering Article 50 is the simple implication of accepting the fact that the EU will decide upon the circumstances for the UK’s withdrawal. Consequentially, this would have serious legal and political effects as there is no definitive stimulus to arrive to an agreement and no security within the negotiated position. The process can easily be disrupted by other factors and an agreement may not be achieved for many years.
If the withdrawing member state reaches a “future relationship” agreement in advance of the two-year deadline and for instance decides to approach a “at the ready” resolution such as the European Economic Area framework then this would go beyond the scope of Article 50 as not many negotiations would take place with the only possible resolution being a more simple and changed withdrawal agreement which as a knock on would enforce formality within the withdrawal agreement.
Despite the fact that Article 50 does not expressly obligate all States to give their stamp of approval in accordance with their domestic constitutional requirements, it does not prohibit it either. Within Article 3 TFEU it makes mention to “the conclusion of an international agreement”, in which it could be argued that it is another classification of the withdrawal agreement. Further contained within this paragraph is the theory that the European Union holds the power to conclude upon the withdrawal agreement – “its conclusion may affect common rules or alter their scope”. Such an interpretation of Article 3 TFEU would mean that the withdrawal agreement is to be completed by the European Union and also other Member States must ratify this in agreement with their own national constitutional requirements. It is evident that this would be considered a legal and political weakness as there is no final UK right to decide representation on withdrawal agreement as the rest of the EU will have the final clincher and European Parliament will undertake veto over a continuity deal or future free trade deal which contributes as a further unpredictable factor in deal making.
As favourable as creating an Act of Parliament empowering the Article 50 trigger sounds, it’s also very problematic. The exercise of the royal prerogative is hopelessly undermined by this which connotes a solid political weakness and as a knock on blurs the withdrawal process. It can be argued that the whole process is by no means adequate with one of the most underlying concerns being the extremely short two-year deadline in which the UK have no clear exit strategy in force therefore it is highly likely that the majority of this time will be spent making efforts obtaining the undesirable current alternatives to EU membership for the withdrawal agreement.
The most straightforward and classic method of triggering Article 50 TEU is the exercise of the royal prerogative, applied by the Prime Minister. Under the royal prerogative the Prime Minister holds the power to complete this action as it would be unmanageable to request approval from the Parliament for each matter such as international negotiations. Some scholars suggest that an act of Parliament is required in order to authorize the Prime Minister to trigger Article 50 TEU as there should be Parliamentary involvement in such matters.
In theory, there are other methods for unilateral withdrawal from the EU other than Article 50, however, it can be foreseen that such a means of arriving will thin out the withdrawing member states’ possibility of appropriating an advantageous trade agreement post-exit. The simple action of repealing the 1972 European Communities Act, which is in the power of the British Government since Parliament is sovereign, there is nothing legally to stop the UK from doing this. Essentially, this would mean that the UK could retract themselves from the EU, however, this would pose many legal and political weaknesses as no transition interval exists therefore the UK would be required to reconstitute the withdrawing member states’ free trade agreements and any relevant EU legislation. In the world of politics and economics, this option is preposterous. The knock on of this action would result in far too many political and legal weaknesses and leave impracticalities in the details for instance what happens to payments of EU funds to UK recipients.
A life outside of the EU definitely exists and there are seven ready to go options once the settled will of the people has been identified. Chalmers and Menon have proposed a ‘three step’ solution which would resolve the ambiguousness in the future of the UK post-brexit. Within their analysis, they propose a transitional almost temporary arrangement allowing an extended time period needed to negotiate a desirable and advantageous permanent long-term agreement. This approach corroborates Article 50 as a whole new method of settlement rather than a simple divorce settlement as it allows flexibility in changing relations subsequently, however, such an agreement requires qualifying a majority at the Council and is unlikely to be agreed.
It can be argued that Article 50 can simply be seen as a provision used to promote democracy because its function is irrelevant in the actual process of leaving the European Union as it only compels the EU to pursue negotiations and therefore not necessitating the withdrawing member state to take any action for the reason that there are not set rules for this process. Article 50 can be viewed as simply a gesture of goodwill in the divorce era allowing the EU and withdrawing member state to discuss on possible alternatives and the underlying reason for the creation of this article is simply to prevent claims and complaints of not being able to leave the EU. It was created with the intention of never really being used therefore it could be argued that not much consideration is set into the actual process of withdrawal. Pre-Lisbon Treaty there was no right to leave the EU and its apparent that Article 50 was established after the argument about detaining sovereign states within an organization against their will was raised.
A question still remains. Is Article 50 fit for purpose? It has been misdirected and informed to the electorate that in order to withdraw from the European Union the activation of Article 50 in its integrity is prerequisite. In actual fact, in order to leave the European Union Article 50 itself is not required at all and the only necessary element would be notice to leave since the UK is free to act in any way it sees fit and proper. Additionally, Article 50 TEU does not provide security to the withdrawal state on whether the entirety of the regulatory and trade implications of the UK’s withdrawal will be considered within the short time period of two-years. It seems like such a matter would last nearer to ten years in order to unravel over 40 years of the EU membership.
Above all, it is uncertain on whether the UK has the right to discuss trade negotiations with third parties pre-Brexit. Further to this, third parties may be reluctant to discuss potential trade deals due to the lack of understanding in the market and the UK’s credibility as a negotiating cohort may be wrecked. A long time must pass from this until the UK can credibly declare that they have a record of fair practice within the field of negotiations on an international scale.
In the final analysis, Article 50 TEU has never been attempted to be implemented by another other Member State before. The provision appears to be irrelevant and of little significance as it doesn’t light the withdrawal process nor is it influential when the process for withdrawal has begun. In other words, Article 50 TEU is not fit for purpose since the most critical element of the course of action is the future between the EU and the withdrawing Member State.