Article 50: The Exit from Brexit . . . but is anyone willing to take the off ramp?
On June 23, 2016, by a slim margin, the United Kingdom voted by referendum (popularly referred to as “Brexit”) to leave the European Union 52 to 48 percent. Since the result, the exchange rate for the British pound sterling has fallen to a 30-year low at $1.33. Professor Michael Dougan criticized the campaign to leave the EU as irresponsible. And 30,000 anti-Brexit protesters took to the streets of London. However, the FTSE, which dropped initially after the vote, has since rebounded.
It is time to tap the brakes a little. The UK has not yet left the EU. In fact, it may never. The Brexit vote is non-binding.
The European Union Referendum Act 2015 is an advisory referendum posing the question: “Should the United Kingdom remain a member of the European Union or leave the European Union?” Even the use of the word “should” is advisory by its nature. Its use in British lexicon is to make requests of statements of preference. To trigger its actual withdrawal from the EU, the British Government must formally invoke Article 50 of the Lisbon Treaty.
Article 50 states, in relevant part:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. 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. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
For the UK to leave, the Parliament, which is sovereign, must vote to withdraw pursuant to Article 50(1) (“in accordance with its own constitutional requirements”) and formally notify the European Council pursuant to Article 50(2). Along these lines, lawyers acting on behalf of business and academic leaders are taking legal steps to insure that the British Parliament debates and votes to invoke Article 50 rather than informally follow the Brexit results.
Given the unpopularity of the outcome and the closeness of the result, it is difficult to imagine the incumbent Parliament voting along these lines. Particularly with the resignation of Prime Minister David Cameron, and the withdrawal of former London Mayor and current MP Boris Johnson from the leadership race. This leaves the door open, if not preferred, for an early general election in which the UK may vote in a new Parliament based on the issue of invoking Article 50 or not. There has been some talk of a general election in the press.
The Fixed-term Parliaments Act 2011 makes it slightly more difficult to call an early election, but provides for such a situation nonetheless. It states, in relevant part:
An early parliamentary general election is to take place if—
(a)the House of Commons passes a motion in the form set out in subsection (2), and
(b)if the motion is passed on a division, the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).
Thus, the British Parliament should call for a snap election to allow the electorate to determine once and for all whether the UK should leave the EU or not. With a mandate from the people, the next Government can then vote to invoke Article 50 or not. This provides both the UK and the EU with certainty regarding their future relationship. Time will tell if it all plays out that way.