United Kingdom invocation of Article 50 of the Treaty on European Union

Background

The first ever invocation of Article 50 of the Treaty on European Union was by the United Kingdom, after the Leave vote in the 2016 referendum on the United Kingdom's membership of the European Union.

When David Cameron resigned in June 2016, he stated that the next Prime Minister should activate Article 50 and begin negotiations with the EU.

Necessity of invoking Article 50

The government was committed to acting on a "leave" vote and, after the result was known, was committed to invoking Article 50 to begin the process with the EU. But, unlike the Parliamentary Voting System and Constituencies Act 2011, which contained provisions for an "alternative vote" system which would have become operative only if approved by the voting result in the referendum held under the Act, the European Union Referendum Act 2015 did not state that the government could lawfully invoke Article 50 without a further authorising Act of Parliament, and after a court case the government introduced a bill that was passed as the European Union (Notification of Withdrawal) Act 2017.

Renegotiation of membership terms

Negotiations after invoking Article 50 cannot be used to renegotiate the conditions of future membership as Article 50 does not provide the legal basis of withdrawing a decision to leave.

Arguments for moving slowly

Nicolas J. Firzli of the World Pensions Council (WPC) argued in July 2016 that it could be in Britain's national interest to proceed slowly in the following months; Her Majesty's Government might want to push Brussels to accept the principles of a free trade deal before invoking Article 50, hopefully gaining support from some other member states whose economy is strongly tied to the UK, thus "allowing a more nimble union to focus on the free trade of goods and services without undue bureaucratic burdens, modern antitrust law and stronger external borders, leaving the rest to member states".

Prime Minister Theresa May confirmed that discussions with the EU would not start in 2016. "I want to work with ... the European council in a constructive spirit to make this a sensible and orderly departure", she said. "All of us will need time to prepare for these negotiations and the United Kingdom will not invoke article 50 until our objectives are clear." In a joint press conference with May on 20 July, Germany's Chancellor Angela Merkel supported the UK's position in this respect: "We all have an interest in this matter being carefully prepared, positions being clearly defined and delineated. I think it is absolutely necessary to have a certain time to prepare for that."

Pre-notification negotiations

Prior to the UK Government's invocation of Article 50, the UK stayed a member of the EU, had to continue to fulfill all EU-related treaties including possible future agreements, and was legally treated as a member. The EU has no framework to exclude the UK—or any member—as long as Article 50 was not invoked, and the UK did not violate EU laws. However, if the UK had breached EU law significantly, there were legal venues to discharge the UK from the EU via Article 7, the so-called "nuclear option" which allows the EU to cancel membership of a state that breaches fundamental EU principles, a test that is hard to pass. Article 7 does not allow forced cancellation of membership, only denial of rights such as free trade, free movement and voting rights.

At a meeting of the Heads of Government of the other states in June 2016, leaders decided that they would not start any negotiation before the UK formally invoked Article 50. Consequently, the President of the European Commission, Jean-Claude Juncker, ordered all members of the EU Commission not to engage in any kind of contact with UK parties regarding Brexit. Media statements of various kinds still occurred. For example, on 29 June 2016, European Council president Donald Tusk told the UK that they would not be allowed access to the European Single Market unless they accept its four freedoms of goods, capital, services, and people. Angela Merkel said "We'll ensure that negotiations don't take place according to the principle of cherry-picking ... It must and will make a noticeable difference whether a country wants to be a member of the family of the European Union or not".

To strike and extend trade agreements between the UK and non-EU states, the Department for International Trade (DIT) was created by Prime Minister Theresa May, shortly after she took office on 13 July 2016. As of February 2017, the DIT employs about 200 trade negotiators and is overseen by Liam Fox, the Secretary of State for International Trade.

Subjects of negotiation

Since Article 50 has been invoked, the United Kingdom will negotiate with the European Union the status of the 1.2 million UK citizens living in the EU, the status of the 3.2 million EU nationals living in the UK. Issues relating to immigration, free trade, the freedom of movement, the Irish border, intelligence-sharing and financial services will also be discussed.

Initial speculation

During the referendum David Cameron pledged to invoke Article 50 on the morning of a Leave vote, and there was speculation that he would do this on the morning with Eurosceptic MPs calling for caution to assess the negotiating position and Jeremy Corbyn calling for immediate invocation.

Conservative Party Leadership election

Instead of invoking Article 50 Cameron resigned as Prime Minister, leaving the timing to a successor. There was speculation in the UK that it would be delayed, and the European Commission in July 2016 was under the assumption that Article 50 notification would not be made before September 2017.

Following the referendum result Cameron announced that he would resign before the Conservative party conference in October and that it would be for the incoming Prime Minister to invoke Article 50:

A negotiation with the European Union will need to begin under a new Prime Minister, and I think it is right that this new Prime Minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.

Cameron made it clear that his successor as Prime Minister should activate Article 50 and begin negotiations with the EU. Among the candidates for the Conservative Party leadership election there were disagreements about when this should be: Theresa May said that the UK needed a clear negotiating position before triggering Article 50, and that she would not do so in 2016, while Andrea Leadsom said that she would trigger it as soon as possible.

EU Views

According to EU Economic Affairs Commissioner Pierre Moscovici, Britain had to proceed promptly. In June 2016 he said: "There needs to be a notification by the country concerned of its intention to leave (the EU), hence the request (to British Prime Minister David Cameron) to act quickly." In addition, the remaining EU leaders issued a joint statement on 26 June 2016 regretting but respecting Britain's decision and asking them to proceed quickly in accordance with Article 50. The statement also added: "We stand ready to launch negotiations swiftly with the United Kingdom regarding the terms and conditions of its withdrawal from the European Union. Until this process of negotiations is over, the United Kingdom remains a member of the European Union, with all the rights and obligations that derive from this. According to the Treaties which the United Kingdom has ratified, EU law continues to apply to the full to and in the United Kingdom until it is no longer a Member."

After a debate about the planned UK exit on 28 June 2016, the EU Parliament passed a motion calling for the "immediate" triggering of Article 50, although there is no mechanism allowing the EU to invoke the article.

Legal proceedings against the government

The Supreme Court ruled in the Miller case that an explicit Act of Parliament is necessary to authorise the invocation of Article 50.

The Constitution of the United Kingdom is unwritten and it operates on convention and legal precedent: this question is without precedent and so the legal position was thought to be unclear. The Government argued that the use of prerogative powers to enact the referendum result was constitutionally proper and consistent with domestic law whereas the opposing view was that prerogative powers could not be used to set aside rights previously established by Parliament.

Three distinct groups of citizens – one supported by crowd funding – brought a case before the High Court of England and Wales to challenge the government's interpretation of the law.

On 13 October 2016, the High Court commenced hearing opening arguments. The Government argued that it would be constitutionally impermissible for the court to make a declaration that it [Her Majesty's Government] could not lawfully issue such a notification. The government stated that such a declaration [by the Court] would trespass on proceedings in Parliament, as the Court had ruled previously when rejecting a challenge to the validity of the ratification of the Lisbon Treaty after the passing of the European Union (Amendment) Act 2008 but without a referendum. Opening the case for the Plaintiffs, Lord Pannick QC told the Court that the case "raises an issue of fundamental constitutional importance concerning the limits of the power of the Executive". He argued Mrs May could not use royal prerogative powers to remove rights established by the European Communities Act 1972, which made EU law part of UK law, as it was for Parliament to decide whether or not to maintain those statutory rights.

On 3 November 2016, the High Court ruled in R (Miller) v Secretary of State for Exiting the European Union that only Parliament could make the decision on when or indeed whether to invoke Article 50. The Government's appeal to the Supreme Court took place on 5–8 December 2016. On 24 January 2017, the Supreme Court upheld the decision of lower court by a majority of eight to three, declaring that the invocation of Article 50 could only come by an Act of Parliament. The case was seen as having constitutional significance in deciding the scope of the royal prerogative in foreign affairs. The Supreme Court also ruled that devolved legislatures in Scotland, Wales and Northern Ireland have no legal right to veto the act.

UK Parliament

On 2 October 2016, the Prime Minister, Theresa May, announced that she intended to invoke Article 50 by the end of March 2017, meaning that the UK would be on a course to leave the EU by the end of March 2019.

On 7 December 2016, the House of Commons approved a non-legally-binding motion supporting Article 50's invocation by 31 March 2017.

As a direct consequence of the Supreme Court ruling the House of Commons voted by a majority of 384 votes (498 to 114) to approve the second reading of the European Union (Notification of Withdrawal) Act 2017 to allow the Prime Minister to invoke Article 50 unconditionally.

On 7 March 2017 the bill passed the House of Lords, though with two amendments. Following further votes in the Commons and the Lords on 13 March 2017, these two amendments did not become part of the bill, so the bill passed its final reading unamended and it received royal assent on 16 March 2017.

Formal notification

Theresa May announced on Monday 20 March 2017 that the UK will formally invoke Article 50 on Wednesday 29 March 2017, meeting her self imposed deadline.

The letter invoking Article 50 was signed by May on 28 March 2017, which was hand delivered on 29 March by Tim Barrow, the UK's ambassador to the EU, to Donald Tusk.