It is Liberal Democrat policy to hold a referendum on the terms of Brexit, but I think it is clear from reading Article 50 and the High Court judgment that once we have notified the European Council that we are leaving there is no method to stop us leaving.
Article 50 of the Treaty reads:
- 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(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.
- 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.
There are a couple places where a procedure to halt the process could have been included. I think paragraph 3 would have been the easiest place to do it by adding words along the lines of “or end the process so that the Member State remains a member of the Union”. This means it would have been a joint decision.
Alternatively a new paragraph could have been added that stated that the Member State could end the process by notifying the European Council and so stay a member of the Union.
As the drafters of this article did not take these opportunities to include a method to stop the process we should assume that they have rejected the idea that the process once started can be stopped.
Paragraph 10 of the High Court judgment states:
Important matters in respect of Article 50 were common ground between the parties: (1) a notice under Article 50 (2) cannot be withdrawn, once it is given; and (2) Article 50 does not allow for a conditional notice to be given: a notice cannot be qualified by, for example, saying that it will only take effect if Parliament approves any agreement made in the course of the negotiations ….
The judges agree with this and state that because no action including by Parliament can stop us leaving, then giving notice to the European Council in effect changes UK law – hence the need for an act of Parliament.
It has been suggested that Article 68 of the Vienna Convention on the Law of Treaties gives nations the right to cancel their notification to terminate a treaty. However Article 50 clearly replaces the procedures in the Vienna Convention on the Law of Treaties for terminating a treaty (article 65), for settlement, arbitration and conciliation of disputes arising from termination (article 66) and the form of notification (article 67). It seems that the wording of article 68 makes it clear that it only applied to articles 65 and 67: “A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect.” As these articles (65 and 67) do not apply under the Treaty of the European Union because they have been replaced with article 50, article 68 Vienna Convention on the Law of Treaties does not apply.
The House of Lords Select Committee concluded:
There is nothing in Article 50 formally to prevent a Member State from reversing its decision to withdraw in the course of the withdrawal negotiations …
Professor Derrick Wyatt in his written evidence to the committee concludes with:
… a conclusion that a Member State could not rescind its notification of intention to withdraw could have absurd consequences. … If a Member State which activates Article 50 is irrevocably committed to withdrawal, even if its government changes its mind afterwards, this would lead to an absurd result. It would mean that that Member State, and the other Member States, would still have to conclude a pro forma withdrawal agreement, or await the lapse of two years, then start the process of the Member State re-applying to the EU. That would all be pointless. It cannot be right.
He also states that the requirement to apply as a new applicant in Article 50 (5) could have been worded to make it clear it would apply to a Member State who had changed their mind after giving notice. However it seems that there is no need because he is able to read the wording and conclude that this is the case. Therefore, while he thinks a clear interpretation of the words can’t be right and must include a pointless exercise, I think he is mistaken to assume that the drafters of this section did not want to punish any Member State who applied to leave the European Union by making them re-apply under the existing joining conditions, which might mean that as in the UK’s case that the Member State would not keep their existing conditions.
Personally I support the idea of having a referendum on the terms of Brexit, but there is no point on calling for one if the legal position is that it can’t stop Brexit. I think there are only two ways of a referendum being meaningful. Firstly by trying to get a ruling from the Court of Justice of the European Union (either directly or by joining the case before the Supreme Court [but that might result in the overturning of the High Court judgment]) or secondly by getting the European Union to agree a treaty change to insert into Article 50 a method to stop the withdrawal process (which I think is extremely unlikely).
* Michael Berwick-Gooding is a Liberal Democrat member in Basingstoke and has held various party positions at local, regional and English Party level. He posts comments as Michael BG.
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42 Comments
I think you underestimate 50(3) – it does provide a way back: http://www.markpack.org.uk/142037/article-503-second-european-referendum/
@Michael BG
Thank you for this article. I have enjoyed debating this issue with you over the last few days.
I agree with you, from reading Article 50 and the High Court judgement, once we have notified the European Council that we are leaving there is no method to stop us leaving.
Which makes me believe that a campaigning for a 2nd referendum on the negotiations is pointless posturing.
All Remainers can hope to achieve is to force the Government into revealing it’s negotiation plans, which in turn can only weaken the governments hand and in turn be bad for the country.
If the Government decides to change it’s course in the Supreme Court and argue that because Article 50 can be withdrawn at any time and the Supreme Court agrees. We could see a situation were the supreme court reverses the high courts decision and decides that because parliament can revoke article 50 at any time, it will not automatically change uk law, therefore it could decide that the Government can invoke article 50 without the approval of parliament.
Interesting times.
Then we must also consider that the EU council and Junker were very clear when they announced the negotiated terms between Cameron and the EU. These negotiated terms would become void IF the uk voted for brexit.
Therefore, if it was successfully argued that parliament could revoke article 50 at any time during the negotiations and we had a 2nd referendum on the terms negotiated. the choice would be. To accept the result of the Brexit Negotiations or to carry on as we are now without the reforms Cameron negotiated. (I can not envisage the public going for that later)
The Divisional Court in Miller did not ‘agree’ that an art 50 notice was irrevocable. Because the government refused to argue the point, it was not contested. It was merely a concession and as such can be withdrawn on appeal or argued over in later cases.
The idea that TEU art 50 ‘displaces’ VCLT art 68 is based on a misunderstanding of the scope of application of VCLT art 68. There are two points:
(1) The base rule for withdrawal from treaties is VCLT art 54, which says: ‘The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States.’ That means that if there are no provisions for withdrawal in the treaty itself a notice of withdrawal can have no effect, because in those circumstances withdrawal would need the consent of all the other state parties. Art 68, in contrast, talks about a notice ‘taking effect’. Notices that ‘take effect’ can only be notices under the provisions of the treaty. That means that art 68 does apply to treaties that have withdrawal provisions, indeed can only apply to such treaties, and therefore it can’t be right to say that art 68 is ‘displaced’ by the mere existence of such provisions. It would only be displaced by specific provision about revocation of a withdrawal notice.
(2) Similarly VCLT art 68 refers back to art 67, whose scope includes a state party withdrawing from a treaty ‘pursuant to the provisions of the treaty’. That means that VCLT 68 must apply to notices ‘pursuant to the provisions of the treaty’ and the very fact that such provisions exist cannot by itself ‘displace’ art 68.
Articles 65 and 66 are not applicable to the current situation. They are about where a state party ‘invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty’. I don’t think the UK is about to do either of those things.
@ Mark Pack
It is very ingenious of Andrew Lodder and Belinda McRae to come up with this as a method for us to hold a referendum. They state that if the UK government and the European Council can agree to the holding of another referendum on the deal negotiated under 5 (2) then the European Council can agree that if there is a no vote on the terms of leaving the time is extended until such a time that the UK government again triggers the process. Therefore the process is never terminated and we don’t leave the EU. This is not a way of stopping the process, it is an ingenious way of never reaching the end of the process.
However it is not possible for Parliament to stop the process once triggered and it would mean that the Act of Parliament to start the process would be conditional on the European Council unanimously agreeing before Article 50 is triggered to extend the time period either indefinably or until a referendum agrees the withdrawal conditions. I don’t know if it is possible for an act of Parliament to have its effects take force only if foreign countries make an agreement.
Andrew Lodder and Belinda McRae state that “the government should, … seek in principle agreement from the other 27 Member States to a referendum on any deal negotiated under Article 50” and get “a prior in principle agreement between all of the member states to” get the European Council “to extend the time period immediately after the UK triggered the Article 50 procedure”.
This solution seems more complicated that just getting the EU to agree to amend Article 50 to include a method to terminate the process before the time limit is reached.
Whether or not Articel 50 is reversible the government should honour the referendum commitment to implement the result fo the referendum and leave the EU.
Thus any second referendum has to be a choice between:
a) the terms to leave negotiated between the UK and the rest of the EU, and
b) leaving the EU and adopting the default World trade Organisation terms
In my previous post i said “(I can not envisage the public going for that later)” Of course that should have read the latter.
My interpretation of Andrew Lodder and Belinda McRae, was that it was a load of poppycock. What they were basicly suggesting was that there was a way in which to get the EU to extend the negotiating term indefinitely, thus, hopefully blocking brexit.
It would require all EU member states to agree to this unanimously, one thing I cannot see happening.
The EU also would not want this kind of uncertainty spreading to other member states, what would stop other member states invoking article 50 when they became disillusioned with the EU and using the threat of article 50 to try and get their own way. It would cause to much instability.
Question.
If the EU wanted to change/ amend article 50, haven’t the uk already legislated that any changes to treaties will have to be subject to a referendum ?
Can’t see that one going down very well with the public either. The UK / EU changing the law in order to try and block a democratic vote of the people.
Not a wise or helpful article to run. Another lapse of editorial judgement.
In the real word, “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union” could include arrangements for withdrawal not proceeding.
@ David Howarth
My view is that the High Court judgment only makes sense if there is no way to terminate the exit process once triggered under Article 50.
Article 65 of the Vienna Convention on the Law of Treaties (VCLT) is entitled “Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty” and I accept it only is valid if there is no method to terminate a treaty set out in the treaty.
Article 68 (VCLT) states “A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect.” This cannot be clearer the revoking only applies to those notifications or instruments given under article 65 or 67. The revoking does not apply to those given under article 54 (VCLT). Article 67 does not provide the instrument for terminating a treaty “pursuant to the provisions of the treaty”.
In the last few days I have read that the EU and some members of the EU (possibly France) are not signatories to the Vienna Convention on the Law of Treaties and therefore there might be problems with using any of its terms to terminate the exit process began under Article 50.
Last May the House of Lords produced a report on the process of withdrawing from the EU: http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeucom/138/138.pdf
It included this statement: “We asked our witnesses whether it was possible to reverse a decision to withdraw. Both agreed that a Member State could legally reverse a decision to withdraw from the EU at any point before the date on which the withdrawal agreement took effect”
It is not as clear-cut as Michael Berwick-Gooding suggests.
With all due respect:
*If you are right that the Divisional Court judgment makes no sense without the concession on revocability, that is precisely why the result might be different if the government withdraws that concession in the Supreme Court. A concession is not a decision. It’s an assumption that can change.
*Headings are not operative. They are merely attempts at description. It’s the text that is operative. The text of art 65 says: “A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor”. The rest of the article is about what happens in such cases, as is art 66. It is not about any other cases.
* Please read art 54 again. It covers withdrawal both where a treaty provides for withdrawal and where there are no such provisions. It therefore covers the situation created by TEU art 50 in terms.
*Art 67(2) says ‘Any act of declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of article 65 shall be carried out through an instrument communicated to the other parties.’ Note the words ‘pursuant to the provisions of the treaty’. Art 68 then says ‘A notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect’. An instrument created to withdraw from a treaty ‘pursuant to the provisions of the treaty’ is therefore covered by art 68.
* France and Romania have not ratified the VCLT but art 68 represents customary international law and so they are bound by it anyway. I dealt with this point two months ago. Please see https://www.libdemvoice.org/brexit-a-referendum-on-the-destination-may-be-too-late-51839.html citing Antonios Tzanakopoulos, ‘Article 68′ in Olivier Corten and Pierre Klein, THE VIENNA CONVENTIONS ON THE LAW OF TREATIES – A COMMENTARY’ (Cambridge, Cambridge Univ Press, 2011) pp. 1564-1568.
How about just respecting the democratic will of the British people as expressed on 23 June ?
If the British government goes back on its declaration that Article 50 cannot be revoked, will the Supreme Court then have to apply to the ECJ for a preliminary ruling?
@ Caracatus
Why was it not wise to publish this article?
I don’t understand how the arrangements for withdrawal can include arrangements for there not to be a withdrawal.
@ matt
“If the EU wanted to change/ amend article 50, haven’t the uk already legislated that any changes to treaties will have to be subject to a referendum?”
The European Union Act 2011 (http://www.legislation.gov.uk/ukpga/2011/12/contents) sets out when a referendum is required before a treaty change comes into force in the UK.
The referendum question form is set out in 2 (2) (a) – i.e. should the treaty be ratified. In section 4 there is a list of what changes need a referendum and a short list of things that clearly do not. If Article 50 was amended to give the European Council a say in terminating the process I think this would be “the conferring on the EU of a competence with the member States” [4 (1) (d)] and so there would be a need for a referendum for the UK to ratify it but if the power was given just to the member state who had triggered Article 50 with no action being required by any EU body I don’t think a referendum would be needed.
@Michael BG
Sorry I am a bit confused
” If Article 50 was amended to give the European Council a say in terminating the process I think this would be “the conferring on the EU of a competence with the member States [4 (1) (d)] and so there would be a need for a referendum for the UK to ratify it ”
Surely if article 50 is amended to include text and legislation that allows a member state to revoke article 50. This by default gives the European Council a say in the process, because at present the legislation does not exist and it would require the agreement of all eu member states to change.
Surely then by default it would require a referendum by the UK as set out in The European Union Act 2011.
Professor Alan Dashwood, a leading expert on EU law and adviser to HMG, has written the UK could withdraw from the Article 50 process during the stipulated two year period. He argues that it takes ‘two to tango’.
I think Michael Berwick-Gooding’s statement is just missing a simple qualification, namely:
“once we have notified the European Council that we are leaving there is no method the UK can use to stop us [the UK] leaving that does not require the active consent of the European Council.”
As Mark Pack pointed out Art50(3) provides a way for the EU to suspend the Art50 process. Also Art50(2) allows for the ‘agreement’ to include the resumption of normal membership ie. no actual withdrawal. But both of these require the favourable action of the EU.
So as yet I’ve not seen any credible argument that suggests there is any method by which the UK could rescind it’s notification and resume normal membership, without the explicit consent of the EU. Hence why both parties and the High Court were in agreement that from Parliament’s perspective, once notification was given (in accordance with our constitutional requirements) it would be irrevocable.
@ David Howarth
I have accepted that the Supreme Court could take a different view on whether Article 50 can be revoked or not. (However if it can be revoked then I think revoking it no longer changes UK law and there is no requirement for an act of Parliament to trigger it.)
Article 54 does indeed cover two methods of terminating or withdrawing from a treaty, either by using the terms set out in the treaty or with the consent of all parties to the treaty. Article 65 then sets out a two part procedure to use if neither cases in article 54 apply. I have no problem with article 54 (a) meaning according to Article 50 of TEU. And I argue that if article 68 was meant to apply to a termination done according to article 54 I would expect article 54 to be named in article 68. I don’t think that the article 67 provides the instrument for the termination or withdrawal from a treaty where the treaty provides the instrument as in the case of article 50 of the TEU.
@ David Howarth
Article 68 does not represent customary law. According to Oliver Dörr and Kirsten Schmalenbach [i]Vienna Convention on the Law of Treaties: A commentary[/i] “Arts 65-68 … may be developing into customary international law”. The reason it is not customary law like other articles they state is because these articles do not codify customary law (p 1168 https://books.google.co.uk/books?id=GJ0fxh7GNB8C&pg=PR11&lpg=PR11&dq=Oliver+D%C3%B6rr,+Kirsten+Schmalenbach+article+68&source=bl&ots=naLvyyjJV3&sig=8PqIljiR7guILZwN3VqAeNZF3TM&hl=en&sa=X&ved=0ahUKEwib0Na6laTQAhUMCsAKHSqpC08Q6AEIMTAE#v=onepage&q=article%2068&f=false). Antonios Tzanakopoulos states “The provision of article 67 (2) cannot probably be considered customary law and as such neither can the relevant part of article 68” (https://poseidon01.ssrn.com/delivery.php?ID=807021021065098095080079107024120107041027049084057009028001122104121022113010105011001021016037024036049111086068079071069031039060090021004107065090121012071069124067069018088117120001005004006026026127102098103071090103112117079101090008086082082017&EXT=pdf). He also states that the International Law Commission “despite opposition by some states, finally opted for a ‘general freedom’ to revoke”. Oliver Dörr and Kirsten Schmalenbach state that the “‘instrument’ (in article 68) covers … the act referred to in Art 67 para 2”. Therefore it is dangerous for the UK or the Liberal Democrats to act as if the EU will recognise that Article 68 when referring to article 67 (2) applies especially as the EU and two countries in the EU have not ratified the Vienna Convention on the Law of Treaties.
David Evershed Such a referendum would only make sense if the outcome of the article 50 negotiations would be some trade deal. AFAIK trade negotiations will take place after the UK has left the EU, after completion of the article 50 procedure.
I think the LibDem position is needlessly over complicated. Its also beyond absurd that the Government should reveal nothing of its negotiating position. When I negotiate to buy a car, I dont spend 6 months in the showroom pretending that I have no preferences.
I think there is a contradiction between two of the main points of the article.
On the one hand, you say that “As the drafters of this article did not take these opportunities to include a method to stop the process we should assume that they have rejected the idea that the process once started can be stopped”.
You then say that “I think [it] is mistaken to assume that the drafters of this section did not want to punish any Member State who applied to leave the European Union by making them re-apply under the existing joining conditions.”
So why would you on the one hand be suggesting that we must make assumptions that it is not possible to stop the process, yet that it is wrong to make assumptions?
The reality is that there is no specified way of stopping this. That is all we know. We do not know that it is not allowed to do so.
I don’t know whether or not Article 50 is irreversible, as Michael suggests here. Evidently the High Court considered it to be irreversible, and this was why they ruled as they did. They considered that article 50, being irreversible, would, in itself, change British law, and therefore Parliament must vote on it.
It is possible that the Supreme Court will disagree. If they decide that Article 50 is reversible, perhaps they will conclude that, as it does not, in itself, change British law, there does not need to be a vote in Parliament. Theresa May would then go ahead and trigger Article 50 without a vote in Parliament.
If the Supreme Court rules that there must be a vote in Parliament, it will probably mean that they have concluded that Article 50 is irreversible. This means that if there is a vote in Parliament, it will mean the both the High Court and the Supreme have ruled that Article 50 is irreversible. The current Lib Dem policy of voting against Article 50 unless there is a referendum on the final deal, therefore involves demanding something that would not be possible.
Michael – you ask “I don’t know if it is possible for an act of Parliament to have its effects take force only if foreign countries make an agreement.” It’s perfectly possible – and indeed quite common – for legislation to have conditions on when it comes into force. The most frequent condition is for legislation not to come into force until some unspecified later date when a minister can make an order for it to do so, but it’s also been the case that the trigger includes other conditions, such as other events having taken place. So if that’s the route someone wants to take with the Article 50 legislation, there are several options available to draft that trigger which would be in line with legislation which has had triggers before.
I am not a lawyer and so cannot comment on the debate about this article. I have, however, a prosessional understanding of opinion polling, of which a referendum is a particular example. Much is being written about ‘the will of the people’, here and elsewhere, which is why I recently set out the thinking which leads me to believe that the legitimate time to challenge Brexit is before Article 50.
The piece is far too long to post as a comment, but I am posting a link below for anyone interested in considering my argument. It was originally shared to a FB group of which I am a member following extensive debate, hence the final statement that I didn’t intend to debate it further.
ianpsychologist.blogspot.com
John>How about just respecting the democratic will of the British people as expressed on 23 June ?
Which was what, exactly? ‘As long as we leave the EU, we don’t care what happens next, and anything Theresa May and a government that wasn’t in place on June 23 comes up with and the EU agrees to will be absolutely wonderful and all 17 million of us will be thrilled by it and who cares what the rest of the UK population think because they don’t matter?’
Catherine Jane Crosland,
There are many readings of the situation on this blog.. However it is perfectly possible for the courts to rule that leaving is irreversible (because the British government is not in control- they are British courts, after all), but for it to be reversed because the other EU member states decide it can be. Personally I think that if the other 27 saw us having another referendum, they would be under enormous pressure to allow us to stay if we wanted, and would do so…
So I think the current Lib Dem position is tenable, but a lack of support from within the EU could change that.. And this poll suggest the majority probably support our position.. (like all polls on this it is not entirely certain what people really mean!)
https://www.theguardian.com/politics/2016/nov/12/brexit-article-50-parliament-eu-farron-may
Interesting; I particularly noted that the Vienna Convention the Law of Treaties might not apply. But I think this all misses the point that this is a political matter, and the law will be quietly adjusted to suit. if, in the course of negotiations, it becomes clear to a significant majority of the British people that the status quo ante referendum was preferable to a Brexit treaty, the British government would withdraw its invocation of Article 50, and the other 27 would (mostly) go along with this, breathing a sigh of relief that one crisis was over and they could concentrate on the next.
We all talk glibly about negotiations (guilty, m’lud), but, what negotiations? The EU does not exist as a single entity, but as 27 (other) governments, each with its own particular interests. By the time they have agreed with each other, and bought off Malta, and pacified Slovakia and Poland, there will be an extremely fragile construct in existence, ot in practice amendable, which will be offered to the UK: take it or leave it. The British government’s negotiating position will be of complete irrelevance.
The analogy is with Versailles in 1919. The Germans sat around twiddling their thumbs for months , waiting for the negotiations to start. in the meantime Britain, France, the US and Italy were agreeing the treaty. the Germans were then summoned: take it or leave it. the Germans, being unwilling to re-start the war, took it (with dire consequences for all concerned). There are obviously differences, but the reality of negotiations with a number of independent parties holds. The UK can seek to influence the negotiations of the other 27, but no more.
The proposed referendum is supposed to be on the draft agreement between the UK and the EU-27, but which agreement? I think there are three. There’s the pure Brexit agreement; who will pay Nigel Farage’s pension, will Britons living on the Costa del Wotsit be allowed to stay there and, if so, who pays for their healthcare, how do we divvy up our climate change obligations, and other, similar, matters. Takes two years. Then there’s the trade agreement: what’s our relation to the single market, are we in the customs union, and related matters (this is the important one), which is generally assumed to be four or five years off unless it’s simply in or out. So there’s also an interim agreement to tide us all over. It may not matter much at the matter (the Liberal Democrat position is essentially posturing), but at some point we’ll need to decide what we’re voting on.
How about May does not go for A50 until parliament has passed the terms of leaving and we have a referendum on them?
@Michael BG
There are two routes by which France and Romania are bound by art 68. One is direct: that art 68 is itself customary – the argument for which is based on the part of Tzanakopoulos’s commentary you missed out, namely that the Namibia Case says that we can look to what happened in the adoption of the provision by the relevant conference. The other is that in adopting the Lisbon Treaty France and Romania accepted Vienna art 68 as the way to interpret art 50. That argument is based on a communication of the Presidency of the Convention of the Future of Europe, which is where article 50 was first formulated, of 2 April 2003. The communication says:
‘La procédure de retrait s’inspire en partie de celle prévue dans la Convention de Vienne sur le droit des traités, tout en prévoyant la possibilité pour l’Union et l’état membre concerné de conclure un accord régissant les modalités de son retrait et établissant le cadre de leurs relations futures.’ That procedure is the one laid out in VCLT articles 54, 67 and 68, as I explained. (BTW this communication is documentary evidence for Lord Kerr’s contention that he drafted art 50 so that it would allow revocation – it’s available at http://www.cvce.eu/en/recherche/unit-content/-/unit/b9fe3d6d-e79c-495e-856d-9729144d2cbd/f3416b5f-da44-4703-b1f1-5ed2dcf95b97/Resources#2551b42a-e0ce-49d4-857a-4325e1154e2e_en&overlay ).
@ Roland
“Also Art50(2) allows for the ‘agreement’ to include the resumption of normal membership ie. no actual withdrawal”
Please can you point out where Art 50 (2) states that the agreement “setting out the arrangements for its withdrawal” can include an agreement to terminate the withdrawal process?
@ Mark Pack
I knew that an act of Parliament could include a condition that it would come into force at a date in the future. I even knew that other conditions could be set (the result of a referendum as in the Parliamentary Voting System and Constituencies Act 2011). I am not aware of any act of Parliament having clauses that only took effect after some foreign countries take certain actions. I think it would be something new and there might be a constitutional objection to doing so. If actions are linked to a referendum then it might be considered that Parliament is giving its sovereignty to the people, but I think it might be difficult to get agreement that in some way Parliament can give the decision to some named foreign countries.
@ Allan Brame
The House of Lords Committee report quotes the same parts of the written testimony of Professor Derrick Wyatt that I do in my piece. They even note that their two witnesses think that once the withdrawal process has been terminated before withdrawal that the UK terms are likely to be different. However the logic of both Derrick Wyatt’s and Sir David Edward’s position implies that new conditions have been agreed before the withdrawal process can be ended early. This only makes sense if the legal position is that a new joining application has been agreed as in Article 50 (5) under Article 49. Otherwise David Edward would be wrong when he stated that the position would not be “‘the negotiations are over and we are back to where we started’”.
@Michael BG – The key is the sentence:
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.
As the ‘guidelines’ are unspecified they can be anything that guides a negotiation with the intent of reaching an agreement. The exact nature of the ‘agreement’ that is concluded only has qualifcations: firstly, it must make arrangements for withdrawal – which may be none(!) and secondly, take account of the “future relationship”, which may be continued membership(!).
However, for any of the above to happen requires both parties to be in agreement and a willingness to remain in a relationship.
I think where I’m coming from is that whilst the two parties might enter the negotiations with differing agenda’s and public positions: business is business and hence it is not safe or valid to assume they would maintain those positions without change throughout a negotiation. Remember this happens a lot in supplier-customer agreements: something goes wrong, one or other invokes contract and they sit down and discuss, if all goes well they reach an agreement, shake hands and continue to deliver the original contract, if not, expect things to escalate into full blown court proceedings and the relationship lost.
I do not think I have ever read such inexplicable gobledeegook on our trusted site !
Thank goodness for David Evershed , Catherine Jane Crosland , Mark Pack for entering into the realms of the land of the mainstream and normality !
You would expect the law to be understood before a policy was pushed and a knee jerk stance adopted , and half the party excited about it ?! Though not me !
If we are going to try to stop Brexit (lets be honest people, that’s what this is all about), then maybe an amendment to have a second referendum should also include the requirement to get a prior ruling on Article 50 from the ECJ. One without the other would seem to be pointless.
Sorry I haven’t responded sooner I have been unwell.
@ David Howarth
You seem to be arguing that because no one objected to a clause it is customary, while I am arguing that the clause had been objected to before this AND that from my reading of the scholars including Antonios Tzanakopoulos Articles 65-68 cannot be considered customary. You seem to be implying that Antonios Tzanakopoulos disagrees with himself when he wrote, “The provision of article 67 (2) cannot probably be considered customary law and as such neither can the relevant part of article 68”.
Google translates the French as “The withdrawal procedure is partly based on that provided for in the Vienna Convention on the Law of Treaties, while providing for the possibility for the Union and the Member State concerned to conclude an agreement governing the procedures for its withdrawal and establishing the framework for their future relations.” This does not state how those issuing this statement have concluded that they think what will become Article 50 is partly based on the VCLT. It clearly does not state that they think it is based on their reading of articles 54, 67 and 68 of the VCLT. Without this clarity it is possible that the authors of the statement were just making a general point that Article 50 has a two part process like that set out in article 65 – notification (time lapse) coming into force and not that where Article 50 is silent the EU has agreed that the VCLT will apply.
(I note that the next paragraph of the communication talks of the suspension of membership rights which might be why Lord Kerr is so confused about what Article 50 actually does, confusing it with Article 7 when he stated, “I thought the circumstances in which it would be used, if ever, would be when there was a coup in a member state and the EU suspended that country’s membership.” Unfortunately his confusion does not make him a reliable expert. I am not aware of Lord Kerr setting out why he thinks Article 50 can be revoked once triggered, all I have seen is his assertion based on the claim that he wrote it at his kitchen table in Brussels.)
P-J
Can an individual or group (as with Gina Miller and her High Court action) promote a judgment through ECJ? And having seen some of the lead times in previous cases how long would that take??! I agree that it would probably be doing the EU and its member states a favour to get an interpretation on this issue, and I suspect it will do the UK a favour, as there are / will be challenges along the road. Not that HM Government will see it like that.
How on earth we May initiate the process by the end of March goodness knows!
Michael, firstly, the question is irrelevant, it isn’t going to happen, it is a political position not a debate about constitutions. Secondly, constitutions are always interpreted and bent to cultural and political imperatives, whatever the legal/constitutional advice, the only absolute certainty is when the decision is made. Thirdly, how does your article help the Lib Dems? If your right, you don’t help the lib dems, you just provide a stick for the likes of May and Farage to beat us with, if your wrong … same again. So perhaps something for you to raise in private with people like Mark Pack, not in public.
@Caracatus
“Thirdly, how does your article help the Lib Dems? ”
I do not think you are being fair to Michael. He has raised some very important issues regarding article 50.
There is a lot of confusion surrounding this process and through this process there is a lot of political posturing which maybe pointless given the legalities.
Surely it is right then for people like Michael to try and discuss these issues with LD members.
Or would you prefer to carry on blindly following the words of the leadership and not questioning or thinking anything for yourselves.
Caractacus, I disagree strongly with your comments suggesting that Michael should not have written this article.
Surely as liberals we should cherish the right to freedom of speech. Are you seriously suggesting that Lib Dem Voice should only publish articles that agree completely with current party policy? It would be a far less interesting, and far less liberal, website if that was the case.
Anyway, I disagree with your view that this article does not help the Lib Dems. As I said in my earlier comments above, I don’t know whether or not Michael is correct in concluding that Article 50 is irreversible. But if Article 50 is indeed irreversible, then the party’s current policy involves demanding something that would not be possible. Surely it is more helpful to the party to point this out now, when there is still time for the policy to be changed. After all, Lib Dem policy is supposed to be decided by the membership.
@ Caracatus
I hope that constitutions are not interpreted according to politics, and I expect them to be interpreted by independent judges who are not bothered by creating a political problem but are concerned with interpreting the constitution according to the laws in force at the time. However I do recognise that in the UK Parliament can change the law if they don’t like the way it is interpreted (Only the other day I was reading a judgment where the judge concluded that because Parliament had passed new acts on the topic but not changed the old wording rulings from the nineteenth century are the valid way to interpret the law). This is why in my article I suggested a treaty change would be a way of ensuring that once article 50 is revoked the process can be terminated and the member state does not leave the EU.
I do not have a way to influence Tim Farron and his advisors, but even if I thought they would respond to me, I expect they would not engage in debate as has David Howarth for example. Also the idea that article 50 once triggered starts a process that leads to exit and can’t be stopped is in the public domain. The High Court in paragraph 11 of their ruling stated, “Once notice is given, it will inevitably result in the complete withdrawal of the UK from membership of the EU …” (https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf).
Thank you matt and Catherine Jane Crosland for your support. I think it is important that the Liberal Democrats have a policy which can be implemented and where it does not in my opinion that I point this out so they can take action (in this case) to ensure that their policy can be implemented. Otherwise the policy is just political posturing.
@ Martin
“If the British government goes back on its declaration that Article 50 cannot be revoked, will the Supreme Court then have to apply to the ECJ for a preliminary ruling?”
George Peretz QC states, where the case is before the Supreme Court that court cannot make its own ruling it has to apply to the CJEU (https://www.monckton.com/article-50-litigation-result-reference-european-court-justice/). This seems highly likely as article 267 of the Treaty on the Functioning of the European Union states, “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
…
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”
Therefore if George Peretz’s interpretation is correct the Supreme Court has to ask for the CJEU to interpret Article 50 and if once revoked it can be terminated and not make a ruling on its own.
@ P. J.
I agree the logic of the Liberal Democrat position is we should get a ruling from the Court of Justice of the European Union if we are going to proceed on the basis that Article 50 once triggered can be cancelled. The alternative is the political way and that is to get the European Union to agree that Article 50 once triggered can be cancelled. To just assume it can be cancelled once triggered is irresponsible no matter how good the arguments for this position are.
@ Tim13
Individuals cannot get rulings from the CJEU on interpreting the law, only national courts, so a case would have to start in the UK courts.