Brexit

A referendum was held in June 2016 concerning the United Kingdom’s membership of the European Union. The vote supported exiting the European Union, the Prime Minister Theresa May announced in October that Britain was going to invoke Article 50 by the end of March 2017. After the government was defeated in a court case, Parliament passed the European Union (Notification of Withdrawal) Act 2017 passed into law allowing the government to invoke Article 50 in March 2017. Article 50 of the Treaty on European Union sets out the process by which member states may withdraw from the European Union. The United Kingdom’s invocation of Article 50 of the Treaty on European Union is a major step in the United Kingdom’s withdrawal from the European Union (EU), commonly referred to as Brexit. The invocation of Article 50  is the act of giving formal notice to the European Council of a member state’s intention to withdraw from the EU in order to allow withdrawal negotiations to begin, as required by the Treaty on European Union.

In October 2016 the Prime Minister of the UK, Theresa May, announced that Article 50 would be triggered by “the first quarter of 2017”. A decision on 3 November 2016 by the High Court of England and Wales, and confirmed on appeal on 24 January 2017 by the Supreme Court of the United Kingdom, established that the process could not be initiated by unilateral government action (drawing from royal prerogative powers) but could only occur as a result of an Act of Parliament. Consequently the European Union (Notification of Withdrawal) Act 2017 was passed in order to empower the Prime Minister to invoke Article 50. The UK formally invoked Article 50 on 29 March 2017 when Sir Tim Barrow, the Permanent Representative of the United Kingdom to the European Union, delivered by hand a letter written by the Prime Minister Theresa May to Donald Tusk, the President of the European Council in Brussels. This means that the UK will cease to be a member of the EU beginning at midnight (00:00 GMT) on 30 March 2019, unless an extension to negotiations is agreed by the UK and EU.

Once Article 50 is triggered, there is a two-year time limit to complete negotiations. If negotiations fail to reach agreement, the withdrawing state would then be required to follow World Trade Organisation rules on tariffs. This process is generally accepted to leave a seceding member with less bargaining power in negotiations, because the costs of having no trade treaty would be proportionally far greater to the seceding individual state than the remaining EU bloc. This article was used for the first – and, thus far, only – time by the United Kingdom on 29 March 2017 at approximately noon (UTC/London time). Article 49A of the Treaty of Lisbon, which came into force on 1 December 2009, introduced for the first time a procedure for a member state to withdraw voluntarily from the EU. This is specified in Article 50 of the Treaty on European Union, which states that:

  • Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  • 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 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.
  • 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 purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
  • A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
  • If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49. Article 50 of the Treaty on European Union provides that: “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” Once a member state has notified the European Council of its intent to leave the EU, a period begins during which a leaving agreement is negotiated setting out the arrangements for the withdrawal and outlining the country’s future relationship with the Union. A withdrawal agreement would then be negotiated between the Union and that State.

Article 50 can only be invoked by EU member countries although negotiations did not need to be entered into until invocation. Remaining members of the EU need to undertake negotiations to manage change over the EU’s budgets, voting allocations and policies brought about by the withdrawal of any member state.This provision does not cover certain overseas territories which under TFEU Article 355 do not require a full treaty revision. During The Post invocation process treaties cease to apply to the member state concerned on the entry into force of the leaving agreement, or in the absence of such an agreement, two years after the member state notified the European Council of its intent to leave, although this period can be extended by unanimous agreement of the European Council. The two-year period of time in which the terms of the withdrawal agreement are negotiated is known as the sunset period. The agreement is concluded on behalf of the Union by the Council and must set out the arrangements for withdrawal, including a framework for the State’s future relationship with the Union. The agreement is to be approved by the Council, acting by qualified majority, after obtaining the consent of the European Parliament. For the agreement to pass the Council of the European Union it needs to be approved by at least 72 percent of the continuing member states representing at least 65 percent of their population.

This system gives a negotiated withdrawal, due to the complexities of leaving the EU (particularly concerning the euro). However it does include in it a strong implication of a unilateral right to withdraw, As the state would decide “in accordance with its own constitutional requirements” and that the end of the treaties’ application in said state is not dependent on any agreement being reached. The remaining members of the EU need to undertake negotiations on how to make the necessary changes to the EU’s budgets, voting allocations and policies.

Should a former Member State seek to rejoin the European Union, it would be subject to the same conditions as any other applicant country. Before the Treaty of Lisbon entered into force on 1 December 2009 no provision in the treaties or law of the EU outlined the ability of a state to voluntarily withdraw from the EU. The European Constitution did propose such a provision and, after the failure to ratify it, that provision was then included as Article 50 of the Lisbon Treaty.

The absence of such a provision made withdrawal technically difficult but not impossible. Legally there were two interpretations of whether a state could leave. The first, that sovereign states have a right to withdraw from their international commitments; and the second, the treaties are for an unlimited period, with no provision for withdrawal and calling for an “ever closer union” – such commitment to unification is incompatible with a unilateral withdrawal. The Vienna Convention on the Law of Treaties states where a party wants to withdraw unilaterally from a treaty that is silent on secession, there are only two cases where withdrawal is allowed: where all parties recognise an informal right to do so and where the situation has changed so drastically, that the obligations of a signatory have been radically transformed. There is no precedent for a sovereign member state leaving the European Union or any of its predecessor organisations. However, three territories of EU member states have withdrawn: Algeria in1962, independence from France), Greenland in 1985 and Saint Barthélemy in 2012 which both became Overseas Countries and Territories of the European Union.

Letter from Theresa May invoking Article 50
After a referendum on the United Kingdom’s membership of the European Union in June 2016 supported exiting the European Union, the Prime Minister Theresa May announced in October that Britain was going to invoke Article 50 by the end of March 2017. After the government was defeated in a court case, Parliament passed the European Union (Notification of Withdrawal) Act 2017 passed into law allowing the government to invoke Article 50 in March 2017.

On 29 Mar. 2017 at approximately noon (UTC/London time), the United Kingdom became the first and, thus far, only country to invoke Article 50. Barring negotiation timeline extensions as described in the article, the UK will formally withdraw from the EU on or prior to 29 Mar. 2019 (again, at approximately noon UTC). Then-Prime Minister Theresa May finalized and signed the declaration of intention to withdraw on 28 Mar. 2017; the letter was delivered by UK ambassador to the EU, Sir Tim Barrow, and received by EU Council President Donald Tusk at the aforementioned time; along with a speech delivered by May to the UK Parliament simultaneous with the successful delivery and reception of the letter, this announcement constituted the triggering of the exit process as established in Article 50.

Until the withdrawal from the European Union is effected in accordance with Article 50, the UK remains as a member of the EU continuing to fulfill all EU-related treaties and must legally be treated as a member and there is no official withdrawal negotiations between the UK and the other states until Article 50 is invoked, although there have been unofficial contacts and negotiating positions have been publicly laid out by parties such as the European Council (of heads of national governments).

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