Brexit Begins: An Overview Of The Legal Issues

Alan S. Reid, Senior Lecturer inward Law, Sheffield Hallam University. The writer welcomes comments on the spider web log at a.s.reid@shu.ac.uk

The tumultuous final result of the recent European Union plebiscite has seismic implications for the United Kingdom, its ingredient parts in addition to of course of study the European Union itself.

The nature of the hereafter human relationship betwixt the UK in addition to the EU, the query of Scottish independence in addition to membership of the EU, increasing calls for unifying Ireland, the chance of Eurosceptic contagion affecting the ease of the European Union in addition to the nature, orbit in addition to focus of the novel 27 fellow member bloc European Union are all huge existential questions, the implications of which volition reverberate for years to come. 

The to a greater extent than immediate legal query to address, in addition to i that has been largely side-lined past times the bigger motion painting problems, is that of the actual physical care for of extricating the UK from the European Union legal system.

The physical care for for withdrawal is non without uncertainty. The novel physical care for for withdrawal is laid out inward article 50 of the Treaty on European Union in addition to has only been inward strength since 2009, when the Treaty of Lisbon came into force. Thus, the physical care for is nascent, without legal precedent in addition to ambiguous.

At this juncture, it is of import to laid out the historical evolution of the withdrawal clause.

In the negotiations to create a Constitution for Europe, it was clear that the drafters of the constitution wanted a clear voluntary withdrawal clause, equally laid out inward Article I-60. This was inward stark contrast to the previous European Community orthodoxy, namely that withdrawal was politically, legally in addition to practically impossible in addition to equally such, the previous treaties did non include a withdrawal clause. Indeed, the principal impetus for refusing to admit the possibility of withdrawal, was to effectively ignore whatever criticism of the drive towards 'an always closer union' of the Peoples of Europe: run into Athanassiou, Edward in addition to Douglas-Scott. The thinking was that to fifty-fifty contemplate the unilateral secession of a fellow member State was to chance this existential danger coming to fruition: the irony is that such thinking may at nowadays live on forthright inward the minds of prominent Bremainers.

 

Intervening realpolitik crises, such equally the Irish Gaelic rejection of the Treaty of Nice, led to increasing recognition, albeit reluctantly, past times the European Community of the growing discontent across European fellow member states amongst European Union integration. Such credence of the emerging reality necessitated the insertion of an go out clause into the proposed Constitution. After the rejection of the Constitution, the withdrawal clause, in addition to indeed most of the major damage of the Constitution itself, were retained inward the draft text of the Treaty of European Union proposed at the Inter-Governmental Conference, convened inward Lisbon, inward 2007.

With the coming into strength of the Lisbon Treaty inward 2009, the withdrawal clause of Article 50 TEU is at nowadays the de facto in addition to de jure physical care for for whatever fellow member State wishing to go out the novel European Union supranational organisation.

However, this has non prevented many hard-line Brexiters claiming that Article 50 is non the only machinery for extrication. The Vote Leave Roadmap considers that in that location are iii principal options for withdrawal. The foremost method suggested is occupation of the Article 48 TEU physical care for for changing the treaties of the EU. The minute proposition is the Article 50 TEU physical care for in addition to the finally proposition was to rely on full general populace international law, specifically article 54 of the Vienna Convention of the Law of Treaties 1969. Influenza A virus subtype H5N1 4th possibility likewise tentatively mooted, is for the UK to only repeal the European Communities Act 1972 in addition to supersede it amongst novel UK law.

The Options - Article 48 TEU

In damage of recourse to the article 48 TEU process, this looks highly improbable (see Armstrong’s analysis). This physical care for is relied upon past times Vote Leave equally an historical precedent, inward relation to Greenland's extrication from the European Economic Community. There are a number of objections to the appropriateness of this mechanism. First, the province of affairs of Greenland inward the early on 1980s is non analogous to the electrical current situation. Greenland was non a fellow member State of the EEC, it was a ingredient province inside the Danish Realm, that is it was a semi-autonomous business office of the Kingdom of Denmark. After increased self-rule nether after the 1979 plebiscite gave Greenland to a greater extent than autonomy akin to domicile rule, the Greenland authorities sought to take away itself from the EEC. Denmark, equally the fellow member State of the EEC in addition to desiring to give outcome to Greenland's democratic wishes, commenced the physical care for of seeking modify to the EEC Treaty inward 1982. After a few years of negotiations, EEC constabulary ceased to apply to Greenland past times virtue of EEC law: an amendment to the Treaties Thus, the withdrawal of Greenland from the EEC in addition to its laws did non relate to a fellow member State, it only related to the geographical orbit of EEC constabulary in addition to the query of access to the EEC unmarried marketplace seat for Greenland's fish in addition to fish products. Further, after the conclusion was taken, because Greenland soundless retained strong legal, political in addition to economical connections amongst the EEC fellow member State Denmark, Greenland was able to forge itself an EEC identity itself: that of an Associated Overseas Country or Territory.

It volition live on hard to combat that the alternative of gaining Associated Territory is available for either the United Kingdom, since it is a sovereign province that has decided to leave of absence the European Union, or for Scotland, Northern Ireland, London in addition to Gibraltar, equally areas of the UK (or equally a British Overseas Territory) desirous to remain. Nevertheless, some take hold suggested that Scotland should consider the alternative of gaining associated status for the devolved regions of the UK that voted to remain inward the EU: the contrary Greenland option. In this latter scenario, the ease of the UK would leave of absence the EU, in addition to the devolved regions of the UK which voted to remain would retain favourable access to the European Union internal marketplace seat equally Associated Territories. Such a seat would live on without precedent, since all Associated Overseas Countries in addition to Territories nether European Union constabulary retain important links to a fellow member State of the European Union in addition to are all geographically distant from the EU. Nevertheless, the mere fact that this alternative is beingness discussed highlights the unique constitutional challenges facing the UK in addition to the European Union post-Brexit.   

Brexit relates to a fellow member State of the European Union voluntarily leaving: something which has no legal or political precedent. From a political perspective, the article 48 TEU physical care for is unappealing to the Brexiters. The physical care for requires the unanimous consent of the governments of the fellow member States in addition to for that conclusion to live on ratified past times those fellow member States according to their constitutional arrangements. Thus, in that location is a danger of the occupation of a veto past times whatever i of the 27 fellow member States to stymie the physical care for at the European Union grade in addition to thereafter a chance of a domestic constitutional ratification physical care for of whatever of the 27 fellow member States delaying or frustrating the physical care for of UK withdrawal. Thus, an ordered, seamless in addition to swift transition of the UK from European Union fellow member State to non-EU fellow member State would non live on the production of Article 48 TEU. Further, article 48 TEU is at nowadays non the only physical care for for dealing amongst the geographical orbit in addition to make of European Union law. Indeed, in that location is a to a greater extent than specific in addition to to a greater extent than appropriate physical care for nether European Union law: the Article 50 withdrawal system.  

The Article 50 TEU physical care for is to a greater extent than appropriate for a number of reasons. It is the lex specialis for withdrawal of a fellow member State from the EU, whilst Article 48 TEU is the lex generalis for important changes to whatever aspect of European Union law, including withdrawal of an European Union fellow member State. On that legal Blue Planet alone, Article 50 should live on the most appropriate mechanism. Further, this physical care for only requires a qualified bulk conclusion past times the 27 fellow member States, non unanimity in addition to does non require to live on ratified past times the fellow member States according to their constitutional requirements. Thus, the withdrawal physical care for should live on simpler in addition to to a greater extent than streamlined than that of Article 48 TEU. The implications of this physical care for volition live on laid out inward a after section.

The Options - Article 54 of the Vienna Convention

It has likewise been argued that article 54 of the Vienna Convention on the Law of Treaties 1969 applies to the physical care for of UK withdrawal from the EU. Article 54 of the Vienna Convention only provides that the withdrawal of a political party from an international treaty tin transportation away convey house according to 2 conditions, namely either inward conformity amongst the damage of the Treaty or at whatever fourth dimension past times consent of all the parties after consulting the ease of the State parties.

Again, similar the Greenland province of affairs outlined above, the appropriateness of this machinery has been severely diminished past times the passage of time. The European Union at nowadays has an explicit withdrawal machinery (article 50 TEU) in addition to a consultative machinery for changing the European Union Treaties (article 48 TEU). Thus, reliance on the full general damage of populace international constabulary laid out inward the 1969 convention would appear incongruous inward lite of the existence of an explicit physical care for for withdrawal. And indeed, recourse to the article 50 TEU physical care for itself would live on only consistent amongst the underlying regulation behind article 54 of the Vienna Convention, that is withdrawal from a Treaty should convey house inward conformity amongst the Treaty in addition to inward consultation amongst US Parties to the Treaty. Further, a reliance on full general principles of international constabulary would wing inward the human face upwards of the of the well-established legal orthodoxy that confirms the autonomous sui generis nature of European Union law.  The European Union is a new legal order, in addition to equally such, amendments to its constitutional foundations must live on undertaken according to European Union constabulary itself (Defrenne).  

The Options - Simple Repeal of the 1972 Act

The other extreme scenario envisaged would live on to strength through the UK parliament emergency legislation repealing in addition to replacing the European Communities Act 1972.  Of course, the UK Parliament is supreme in addition to tin transportation away enact in addition to repeal whatever constabulary it so wishes, including those of a constitutional status such equally the 1972 Act (see pars 207 of the HS2 judgment), but the legal in addition to political implications of such a premature motion would live on profoundly destabilising. Without whatever rules in addition to laws setting out the UK's trading human relationship amongst the EU, premature limited repeal of the 1972 Act would create a unsafe legal vacuum, which would likewise live on hugely destabilising politically in addition to economically, peculiarly equally regards the powerfulness of the UK to merchandise bother inside in addition to outwith the European Economic Area.

The finally 40 iii years take hold seen the UK's laws increasingly adopt a pro-EU stance, using European Union constabulary terminology in addition to cross-referencing European Union constabulary in addition to European Union institutions throughout, inward fellowship to give outcome to European Union law. Further, European Union Regulations all take hold the straight applicable strength of constabulary inward the UK equally well. There are widely divergent views on how much UK constabulary is straight (and indirectly) influenced past times European Union law, ranging from 15% to 50%, but regardless of the departure of views on this point, it is an indisputable fact that European Union constabulary principles, rules in addition to doctrines take hold go intertwined in addition to intermeshed amongst that of the constabulary of the United Kingdom, in addition to its ingredient parts of England, Wales, Northern Republic of Ireland in addition to Scotland such that, to only test to current of air the clock dorsum to 1972 would live on highly reckless, hard in addition to an human activeness of extreme folly. Such activeness would seriously undermine the reputation of the UK equally a modern, outward looking land province which implements, follows in addition to gives outcome to its international constabulary obligations inward a spirit of mutual cooperation in addition to respect.

To pass upwards to occupation the Article 50 TEU physical care for in addition to to unilaterally pass upwards to comply amongst European Union constabulary from the appointment of the limited repeal of the 1972 Act, would stimulate major ramifications at the European Union constabulary in addition to international constabulary level. Domestically, since Parliament is sovereign, in that location is nil legally to halt the UK Parliament only repealing the 1972 Act. However, At the European Union constabulary in addition to international constabulary levels, diplomatic, political in addition to legal cooperation betwixt the UK, the ease of the European Union in addition to indeed international organisations would go fractious, if non impossible, although legal activeness undertaken past times the European Commission or other European Union institutions would live on rendered otiose past times the UK's lack of engagement amongst the organisation itself.

The European Union could suspend the UK's rights nether European Union constabulary nether Article 7 TEU, but of course of study if the UK had already unilaterally removed itself from the European Union past times agency of the repeal of the 1972 Act, in addition to then a proclamation that the UK has been inward violation of European Union constabulary in addition to thereafter had its rights nether European Union constabulary suspended past times the EU, would live on of declaratory value only, from the indicate of catch of domestic law. Similarly, whatever activeness past times the Commission or whatever other European Union establishment at the European Court of Justice would live on nugatory, from the catch of UK law, given the non-applicability of European Union constabulary inside the UK legal system, post-Brexit. However, at the European Union level, non-compliance would take hold serious legal implications, including province liability in addition to at the international level, would take hold of import political in addition to diplomatic ramifications.

At the UK level, limited repeal of the 1972 Act could only live on done through the total legislative physical care for of the UK Parliament. This would require Parliamentary consent. Therein lies the rub. The bulk of parliamentarians inward the nowadays UK Parliament are soundless inward favour of UK membership of the EU, notwithstanding the non-binding final result of the recent plebiscite, although the parliamentarians are quick to province their political commitment to abide by the wishes of the electorate. However, whatever test to repeal the 1972 Act without invoking Article 50 TEU or without an organisation inward house settling the human relationship betwixt the UK in addition to the ease of the EU, would threaten the political commitment to abide by the plebiscite outcome.  

The domestic impediments coalesce around the physical care for for replacing the 1972 Act amongst an human activeness that clarifies the human relationship betwixt the UK in addition to the ease of the European Union in addition to the domestic constabulary that is potentially inward play.

The express Parliamentary approval of whatever changes to the UK-EU relationship. It is indeed truthful that unusual affairs, that is the powerfulness of the UK to ratify international treaties in addition to indeed the powerfulness to go inward into (and extricate itself from) international relations by in addition to large is widely undertaken to live on an exercise of the royal prerogative. However, the imperial prerogative is a diminishing executive power, bailiwick to always to a greater extent than command in addition to supervision past times the legislative wing of the state. The status quo pertaining to the exercise of the imperial prerogative is nether assault on 2 fronts: replacement of the amorphous executive powerfulness amongst a statutorily defined, controlled in addition to exercised powerfulness in addition to judicial in addition to democratic supervision of the remaining executive powers of prerogative. The modern interpretation of the exercise of the imperial prerogative is that Parliament must live on involved inward conducting oversight of occupation of this archaic power.

It has been argued that at the really least, Parliament must live on inward a seat to acquiesce inward the exercise of the imperial prerogative past times the Prime Minister (or other Minister): run into for example, Human rights treaties inward the English linguistic communication legal system, Republic of India Malkani, Public Law 2011 (page 554). Indeed, Lord Oliver, inward the International Tin Council case, stated that (at 499F-500C):

“as a affair of the constitutional constabulary of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties does non extend to altering the constabulary or conferring rights upon individuals or depriving individuals of rights which they taste inward domestic constabulary without the intervention of Parliament...”

Clearly this judicial pronouncement refers to the traditional dualist catch that international constabulary obligations cannot go a business office of the constabulary of the UK unless in addition to until these rights are incorporated into UK constabulary past times agency of an Act of Parliament. However, the seat of the UK post-Brexit reveals the contrary problem: how to 'unincorporate' those international rights guaranteed past times European Union law, to UK citizens inside the UK in addition to the ease of the European Union in addition to European Union citizens living in addition to working inside the UK?

It is submitted that the contrary likewise holds true: altering the applicable European Union law, 'de-conferring' private European Union constabulary rights in addition to depriving European Union citizens inward the UK of their domestic constabulary rights nether UK constabulary must similarly live on bailiwick to the intervention of Parliament inward fellowship to live on legitimate in addition to fully inward accordance amongst the dominion of law. Thus, whatever modify to the substantive damage of the 1972 Act, could only live on done amongst the explicit approving of the UK Parliament in addition to could only live on done after the damage of UK go out take hold been agreed amongst the balance of the EU.

The Article 50 TEU process 

Following the give-and-take above, if it is accepted that the Article 50 TEU physical care for is indeed the most appropriate machinery for extricating the UK from the EU, the query of how to create so nether this scheme is no less complex legally than the other processes described above.

Article 50 TEU only extends to just over 250 words. It is rather brief in addition to ambiguous. It states that:

'Any Member State may create upwards one's take heed to withdraw from the Union inward accordance amongst its ain constitutional requirements.'

It in addition to then farther provides inward fifteen words that:

'A Member State which decides to withdraw shall notify the European Council of its intention.'

The foremost paragraph of Article 50 confirms that the running fellowship of events mirrors the construction of Article 50 TEU itself: There must live on an explicit, constitutionally audio conclusion of the UK to leave of absence the UK before a notification to the European Council tin transportation away take hold legal outcome (see Mark Elliot’s analysis).

As stated earlier, an unequivocal, explicit intention to leave of absence may good require democratic reflection in addition to input inward some shape of Parliamentary acquiescence, equally the repository of the sovereign volition of the people. Further, equally has been explicitly stated past times numerous commentators, a plebiscite is non legally binding nether the UK's constitutional arrangements. Thus, it is highly belike that such a conclusion to withdraw volition non live on forthcoming inward the side past times side days in addition to weeks.   

This minute paragraph of Article 50 is similarly important because upon receipt of the notification to withdraw, the 2 twelvemonth countdown to go out begins to run. It is clear since the weekend that neither David Cameron nor Vote Leave politicians are inward no rush to trigger the 2 twelvemonth countdown since in that location is a recognition that i time the 2 twelvemonth timeframe begins to reduce, the UK's negotiating seat on securing a goodness economical bargain betwixt the UK in addition to the ease of the European Union becomes seriously weaker. The ground for such a catch is that after the 2 twelvemonth fourth dimension boundary expires, the UK volition go out the EU, amongst or without a bargain on its hereafter human relationship amongst the ease of EU: Article 50 only requires a bargain on the damage of withdrawal. Indeed, Article 50 farther states that the withdrawal understanding only demand convey into job organisation human relationship the framework for its (the Member State's) hereafter human relationship amongst the Union. This wording implies that if in that location is no corresponding hereafter human relationship understanding already inward place, the Member State concerned only leaves the Union after the 2 twelvemonth period, absent such an agreement.

The European Union has clearly been shaken to its meat past times the seismic Brexit decision. At its heart, the European Union is torn betwixt 2 competing force in addition to describe factors: the want to human activeness decisively in addition to inward a spirt of unity in addition to the requirement to ensure hereafter relations amongst the UK remain equally closed equally possible. Thus, political statements from the continent take hold vacillated from the cordial to the hostile, stemming from a want to demo the European Union equally a unified political bloc that volition create everything it tin transportation away to save its seat in addition to continued existence (and inward so doing punish the UK inward fellowship to forestall the collapse of the European Union through farther defection) in addition to a want to hold closed diplomatic, political, legal in addition to economical ties amongst a large European national province (which is significantly inward the involvement of the European Union).      

The European Court of Justice is the arbiter of European Union constabulary in addition to has the finally word on the interpretation in addition to application of European Union constabulary (see Article nineteen TEU).  As such, only the ECJ tin transportation away definitively pronounce on the important in addition to application of Article 50 TEU.

This tin transportation away live on done through diverse mechanisms applicable to the ECJ's jurisdiction. For example, if the European Council pressed ahead amongst a withdrawal organisation concerning the UK, in addition to the UK considered that a declaration past times the Prime Minister was non an limited declaration triggering the Article 50 TEU process, in addition to then the legality of these European Council measures could potentially live on challenged nether Article 263 TFEU.

On the opposite side of the spectrum, were the European Council or the Commission to neglect to human activeness inward furtherance of the UK's intention to withdraw from the EU, perchance on the ground that, for a considerable time, the European Union institutions were only engaged inward informal negotiations amongst the UK during the pre invocation phase of Article 50, in addition to then other Member States in addition to European Union institutions could theoretically submit an activeness for failure to human activeness nether Article 265 TFEU. Similarly, post invocation of Article 50, the Commission in addition to the European Council volition live on inward unchartered territory in addition to volition live on engaged inward detailed, complex negotiations amongst the UK in addition to the other fellow member States of the EU. It is non inconceivable that the negotiations may stall or make an impasse, in addition to that fact may good encourage other European Union institutions or fellow member States to invoke Article 265 TFEU. The basic fact of wearisome progress inward reaching understanding could trigger such an activeness for failure to act, yet a to a greater extent than cynical catch would live on that the Commission or Council may take hold been minded to procrastinate during negotiations, clear inward the knowledge that the 2 twelvemonth deadline is imminent in addition to that the UK volition take hold a weaker mitt the closer the negotiations stretch out to the cease of the 2 twelvemonth deadline. 

There is likewise a possibility that because of the important divergences inward persuasion on the legal province of affairs pertaining to the UK's withdrawal, fellow member States inward dispute amongst i some other concerning the damage of the UK's withdrawal from the EU, may concur to invoke the dispute machinery scheme laid out inward Article 273 TFEU. However, this physical care for is rarely used.

There is likewise the proposition that the UK itself, past times failing to trigger the Article 50 physical care for inward a timely fashion, could live on inward breach of its goodness organized faith obligations nether Article 4(3) of the Treaty on European Union, which ultimately could Pb to Article 258 proceedings inward the ECJ.

More significantly, equally the physical care for of disentangling the UK from the European Union progresses through the UK parliamentary process, legal issues on the validity, application in addition to the interpretation of European Union constabulary may live on raised inward the domestic courts of the UK. In such circumstances, domestic proceedings may live on suspended in addition to the European Union constabulary questions referred to the ECJ for adjudication, equally per the Article 267 TFEU preliminary ruling procedure. It is likewise non inconceivable that domestic constabulary issues may arise inward the other fellow member States equally a final result of Brexit, for illustration FRG mightiness live on asked to contribute to a greater extent than to the European Union budget.  In this situation, Brexit-related Article 267 TEFU references may live on submitted to the ECJ from other Member States.

It is supremely ironic that the Leave campaigners' wishing to extricate the UK from the European Union may inward business office depend on clarifications, pronouncements in addition to adjudications emanating from their nemesis, the meddling European Court of Justice. 

As regards the domestic situation, in that location are already legal actions being submitted to the courts of the UK. It has been reported that an application has been made to the Queen's Bench Division of the High Court, concerning the legality of triggering Article 50 TEU without Parliamentary input.

Both of these reported legal developments ease on the occupation of the imperial prerogative to trigger Article 50 TEU.  In essence, the declaration turns on the triggering physical care for of Article 50 TEU: does this demand Parliamentary input or is it sufficient to take hold the Prime Minister exercise her imperial prerogative?

Government lawyers argue that the functioning of Article 50 is clearly inside the parameters of the imperial prerogative. Although factually in addition to politically correct, it is non necessarily legally correct. The declaration that the imperial prerogative does non fully encompass withdrawal of the UK from the EU, rests on a number of issues surrounding Brexit.

The classic strands of debate on the imperial prerogative are based on the plant of AV Dicey in addition to Blackstone (See United Kingdom: The Royal Prerogative, T. Poole, Int J Constitutional Law (2010) 8(1): 146-155.doi: 10.1093/icon/mop038 in addition to Activism or Democracy? Judicial Review of Prerogative Powers in addition to Executive Action, Banfield in addition to Flynn, Parliam Aff (2015) 68 (1): 135-153. See further, R (On The Application of Bancoult) v Secretary of State For Foreign in addition to Commonwealth Affairs, [2008] UKHL 61.) At its simplest, the acquit of unusual affairs, equally an exercise inward diplomacy in addition to international politics, is highly subject on policy, non constabulary in addition to equally such is peculiarly suited to determination past times imperial prerogative, notwithstanding electrical current controversies over its occupation (ie the Chilcot Inquiry).

As stated above, the administration of move for the UK equally a modern 21st Century democratic land is for the imperial prerogative to live on steadily reduced over time, via the creation of novel statutorily defined in addition to controlled executive powers in addition to for extant imperial prerogative powers to live on bailiwick to increasing democratic in addition to judicial control. It is this notion that goes to the pump of the legal actions currently beingness contemplated.

Despite the ambiguity over the exercise of the imperial prerogative, it is clear that the imperial prerogative cannot live on used to modify UK statutes (R (On The Application of Bancoult) v Secretary of State For Foreign in addition to Commonwealth Affairs, [2008] UKHL 61, at para 44). Thus, the imperial preogative cannot live on used to modify the European Communities Act 1972: only a novel Act of Parliament tin transportation away repeal in addition to supersede the 1972 Act. The tilt concerns how this is to live on done.

The catch of Government lawyers would, inward all likelihood, live on that the physical care for would live on equally follows: the Prime Minister triggers Article 50 TEU in addition to Whitehall begins the negotiations amongst the European Union in addition to its Member States. Both of these events are an exercise of the imperial prerogative. After this physical care for has ended, Parliament is involved: draft Acts of Parliament are created, setting out the machinery for repeal of the 1972 Act, addressing the UK's human relationship amongst the European Union in addition to creating powers for the UK to acquit merchandise amongst the ease of the world. This catch assumes an orderly, timely in addition to neat physical care for in addition to from that context, it is highly unrealistic. In particular, the 2 twelvemonth fourth dimension boundary for Article 50 negotiations is extremely curt in addition to it is belike that the UK would want to extend this timeframe, peculiarly inward the lawsuit that in that location had been scant pre-Article 50 informal negotiations amongst the EU.

For the declaration that the imperial prerogative is non appropriate for triggering Article 50 TEU, in that location are a number of points that tin transportation away live on raised inward back upwards of this proposition.

First, the imperial prerogative, inward its classic exposition, is mainly concerned amongst the making of treaties. The unmaking of treaties is never genuinely addressed inward the textbooks in addition to inward the magazine articles. This omission is of import for a number of practical reasons.

First, the emphasis on making treaties is only warranted in addition to it is slow from this perspective to run into why in addition to to empathise how the prerogative works. When desiring to go inward a treaty regime nether international law, it would live on unwieldy in addition to cumbersome for the relevant Minister in addition to civil servants to take hold to asking Parliamentary approving every fourth dimension they wished to engage inward international negotiations. Once negotiations at the international bird take hold concluded, Parliament is involved through the passing of legislation taking the UK into the treaty regime. Indeed, this is just what happened inward 1972: The UK negotiated the damage of its entry into the EEC in addition to the Treaty of Accession was signed on the 22nd of Jan 1972; Parliament was given the chance to hash out the damage of the Treaty of Accession nether the Ponsonby dominion in addition to likewise debated the damage of the European Communities Bill, which became the 1972 Act in addition to the UK joined the EEC on the 1st of Jan 1973. It is established UK practise that the Great Britain Parliament volition enact domestic constabulary giving outcome to the damage of the international treaty inward readiness of ratification of the treaty. 

During the course of study of the past times month, iii principal ways to trigger Article 50 TEU take hold been mooted. The foremost method suggested is the classical method outlined above, namely the elementary exercise of the imperial prerogative, exercised past times the Prime Minister. The minute proposition is that propounded past times Nick Barber, Tom Hickman in addition to Jeff King. They suggest that the significance of the conclusion to trigger Article 50 TEU, which volition ultimately repeal the 1972 Act, requires an equal grade of Parliamentary input in addition to equally such this tin transportation away only live on provided through an human activeness of Parliament authorising the Prime Minister to trigger Article 50 TEU.

Adam Tucker has suggested that in that location is a 3rd way, namely the making of an Order inward Council nether subdivision 2(2) of the 1972 Act.

Each of these possibilities throws upwards immense constitutional challenges. The 3rd option, occupation of the Order inward Council machinery nether the 1972 Act, is controversial because the scheme envisaged nether subdivision 2(2) was designed to allow the UK to go past times secondary legislation, inward fellowship to give outcome to European Union obligations in addition to exercise European Union Treaty rights. Although it is truthful that the occupation of Article 50 TEU would come upwards nether an expansive catch of exercising European Union constabulary rights, it is to a greater extent than realistic to adopt a narrower catch of subdivision 2(2) of the 1972 Act such that it tin transportation away only relate to positive European Union constabulary obligations, rights in addition to duties in addition to non the negative right to extricate the UK from the entire European Union edifice.

Of course of study the occupation of Article 50 TEU relates to European Union law, but it is the definitive stride inward releasing the UK from the European Union in addition to thence the terminology used inward subdivision 2(2) was highly unlikely to take hold been contemplated past times the drafters of the Act inward 1972 equally encompassing acts taken to withdraw from the EU, especially since the right to withdraw from the European Union has only existed for 7 years. Nevertheless, it is an intriguing declaration that, on i level, genuinely accords to a greater extent than fully amongst the EU's ain catch of the European Union legal system, equally a sui generis legal system. Thus, having to occupation the 1972 Act to withdraw from the EU, rather than resorting to full general principles of UK constitutional law, appears to a greater extent than consonant amongst the catch that the European Union is a unique legal system, requiring special measures of withdrawal. It would likewise live on neater inward a sense, inward that it would live on internally consistent: the processes nether the 1972 Act would live on used to commence unravelling the 1972 Act.

   

The minute option, that of requiring the Prime Minister to seek Parliamentary approving for triggering Article 50 is similarly attractive, but problematic. It is attractive to require an Act of Parliament to authorise occupation of Article 50 TEU because it ensures a high grade of democratic command in addition to scrutiny volition live on undertaken before the UK starts the physical care for of withdrawing from the EU. This is fundamentally of import because the plebiscite final result was so divisive for the province in addition to did non demo an overwhelming want to leave. Rather, just slightly over one-half of the population voting chose to leave of absence the EU. The plebiscite final result is non legally binding since in that location is no cite of the legal effects of the plebiscite inward the authorising legislation of 2015. Further, it became acutely clear after the referendum, that the preparations for a Leave win, were virtually non-existent in addition to that certainly statements past times the Leave campaign, in addition to indeed Remain, were, at the really least, economical amongst the truth. The bigger query surrounds the post-EU environs for the Great Britain in addition to this query was never seat to the electorate - what sort of human relationship amongst the European Union should the UK have?

It has been argued that in that location are 7 different options available to the UK for a life exterior the EU, all amongst vastly different outcomes. These options make from closed cooperation amongst the European Union equally an associate member, membership of the EEA or EFTA, bilateral cooperation amongst the EU, a customs wedlock amongst the EU, a gratis merchandise organisation amongst the European Union or elementary WTO membership. Clearly, this complexity inward post-EU relations was inadequately addressed during the plebiscite crusade in addition to the reply to this query was non given when 52% of those voting answered 'leave the EU' inward the referendum. Thus, in that location is no definitive UK-wide reply to this question, such that the Prime Minister cannot only province that the limited volition of the people is clear.

In such circumstances, an expanded purpose for the UK parliament becomes really attractive: i time the settled volition of the people has been 'discovered' regarding the preferred post-Brexit choice, the Prime Minister tin transportation away trigger Article 50 TEU in addition to and then deploy negotiators to pass the side past times side 2 years securing a bargain to accomplish this settled will.

However desirable a novel Act of Parliament authorising the Article 50 trigger would be, this approach fatally undermines the established physical care for of the exercise of imperial prerogative in addition to confuses the offset in addition to the cease of the withdrawal process. The Article 50 TEU physical care for only commences the physical care for for exiting the EU, in addition to the UK Parliament volition teach its say when the Bill authorising the repeal of the 1972 Act is introduced to the House of Commons.  

Thus, it appears that the most belike outcome is for the imperial prerogative to live on used past times the Prime Minister to trigger the Article 50 TEU process.  Nevertheless, this physical care for is hardly satisfactory. The primary concern is that the 2 twelvemonth boundary is incredibly curt in addition to if in that location are 7 options on the tabular array for the status of the UK post-EU, most of this fourth dimension may live on taken upwards amongst attempting to secure the 'wrong' type of withdrawal agreement, if no clear go out strategy is inward place.

An number related to this is the status of the currently constituted rights of UK in addition to European Union citizens post-Brexit. This query likewise highlights the unprecedented nature of the chore facing the UK. 

Unmaking a treaty has been only sporadically undertaken inward the history of the UK. It has to live on stressed that withdrawal or denunciation of a Treaty is frequently a finally resort in addition to is usually a final result of other political party non-compliance or because of a textile modify of circumstances. Indeed, the UK does non go inward international treaties lightly in addition to accedes to treaties inward goodness faith, observing the international constabulary regulation of pacta sunt servanda. Generally, stable, democratic in addition to internationally respected sovereign states only rarely denounce international treaties.

Withdrawing from or denouncing a 'traditional' treaty is a relatively elementary process, utilising the imperial prerogative. International treaties commonly render that withdrawal or denunciation tin transportation away live on activated past times elementary notification of this intention past times the fellow member province to the depositary province or international organisation. The treaty would in addition to then non apply to the province concerned after a laid menstruation of fourth dimension had elapsed, for illustration half dozen months or a year. Some treaties may likewise impose certainly conditions, such equally the decease of a certainly menstruation before withdrawal tin transportation away live on activated in addition to treaties may render for the legal effects of the treaty subsisting for a menstruation beyond the withdrawal (see Article 58 ECHR). The nature of the international understanding is likewise a factor pointing to the ease of withdrawal. In the instance of bilateral treaties, invariably they only encompass understanding on a narrow plain of province action, such equally trade, articulation construction or projects (such equally the Concorde) or fiscal cooperation. In the instance of multilateral treaties, they predominantly tend to live on restricted to dealing amongst a narrow make of legal fields. Again, removal from such a treaty only involves a narrow number of legal issues inward the domestic bird in addition to the issues would live on to a greater extent than directed at the international constabulary field.

In all of these instances, the physical care for is solely inward the hands of the departing state. Once triggered past times imperial prerogative, the domestic legal physical care for is only for an Act of Parliament to live on passed (assuming of course of study that the international treaty had been given legal outcome inward the UK) extricating the UK from the treaty regime concerned. The Act of Parliament volition render for removal from the regime. Said removal from the treaty regime is ordinarily straightforward, since the international rules applicable volition primarily relate to the rules betwixt nations in addition to volition relate to the fiscal costs of withdrawal, the loss of rights inside the international organisation in addition to the removal of jurisdiction to oversee compliance amongst the international regime. In these circumstances, exercise of the imperial prerogative simpliciter is absolutely appropriate: the declaration to withdraw is made nether the imperial prerogative, is transmitted to the depositary state/international organisation, that organisation/state informs the other parties of that fact in addition to after the requisite fourth dimension menstruation has elapsed, the province is deemed to take hold left, whilst Parliament, after the exercise of the imperial prerogative, gives imperial assent to the domestic nib negating the legal effects (if any) inside the domestic legal plane. These examples all portion i mutual theme: the international organisation or depositary province plays an only passive purpose inward the withdrawal process.

      

The extraction of the UK from the European Union is of an altogether greater magnitude, requiring constitutional changes inward the UK, institutional changes for the EU, changes to the running costs, functioning in addition to composition of the European Union in addition to the impact of straight effective European Union constabulary inside the UK.  

This physical care for for exiting the EU, past times contrast to traditional international constabulary processes, is driven past times the European Union itself, in addition to must live on conducted according to European Union law, non full general populace international law. The suprantional sui generis nature of the European Union requires that the European Union live on actively involved inward the physical care for for withdrawal of a Member State. Further, from a to a greater extent than practical standpoint, the closed cooperation, integration in addition to enforcement mechanisms that inhere nether a supranational governance system, necessitates that the European Union institutions must play a large business office inward the withdrawal process, for the conclusion to withdraw does non final result inward a elementary binary result: the fellow member State becomes a non-member State amongst no legal connections. Rather, the European Union actively seeks a continuing human relationship amongst the exiting Member State. Again, inward a traditional multilateral treaty system, the fact that a Contracting State exits has minimal impact upon the international intergovernmental supervisory organisation scheme itself: the Contracting State, past times leaving, loses voting in addition to participation rights in addition to the intergovernmental supervisory organisation only carries on without the State concerned. Further, the conclusion to leave of absence a multilateral treaty does final result inward a binary position: from the hateful solar daytime after exit, the Contracting State has no legal connectedness to the treaty regime (except for the possibility for continuing liability for prior acts).

 Article 50 TEU requires a withdrawal organisation to live on agreed inside 2 years. The sheer scale of the changes required volition require massive cross cutting legislative changes inside the UK, such that it is submitted, elementary triggering of Article 50 TEU is inappropriate.

Thus, if the 2 alternative processes outlined higher upwards are ill-suited to UK removal, equally a affair of UK law, in addition to then tin transportation away it live on that the unique characteristics of the Brexit instance require modifications to the imperial prerogative scheme itself? Could some sort of 'enhanced' imperial prerogative/royal prerogative live on required? Young has suggested that a novel constitutional convention tin transportation away crystallise, requiring that inward areas of extreme high policy, it has to live on shown that hereafter planning in addition to a clear go out strategy has been completed in addition to agreed past times the sovereign Parliament before the imperial prerogative tin transportation away live on exercised. Further, it likewise appears reasonable that the imperial prerogative, when beingness used to initiate a bilateral physical care for of negotiation, should only live on activated when the damage of reference are clearly delimited.

Regardless of the merits in addition to demerits of the iii options above, it is clear that the Great Britain is inward novel constitutional waters. Whatever physical care for is ultimately adopted to commence the formal physical care for of exit, for political in addition to legal certainty, in that location needs to live on a route map setting out the hereafter administration of the UK's human relationship towards its nearest neighbours on the continent of Europe. After the path to go out is made clear, the Article 50 physical care for should progress. To neglect to create this, risks an internecine state of war betwixt the UK in addition to European Union which is no-one's long term interests.

Conclusion

The tumultuous events inward the UK inward the finally calendar month take hold plunged the UK in addition to the European Union into turmoil. In these times of immense uncertainty, only i thing is certain; the cease of the UK's membership of the European Union is only just beginning.  

Photo credit: Metro.co.uk

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