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*BREXIT WRITING COMPETITION RUNNER UP* - “In Memory of the UK’s Membership of the European Union: 1973 - ?”

November 14, 2016

Second year student, Saif Gilani was one of our runners up for the Brexit Writing Competition. This article analyses the topical issue of triggering Article 50 TEU and the timeframe needed for the UK to leave the EU.

“In Memory of the UK’s Membership of the European Union: 1973 - ?” - Saif Gilani

Following the Brexit vote, many media outlets have prematurely earmarked April 1st 2019 as the day when the UK will exit the European Union (EU). Nevertheless, a plethora of constitutional issues have surfaced which may prolong this process. By considering the political and legal obstacles to Brexit, existing at a UK and devolved level, this essay will assess whether a longer or shorter timeframe is needed for the UK to leave the EU. 

Article 50 of the Treaty on European Union (TEU) details the most likely route for the UK to leave the EU. Firstly, this requires intimation to the European Council of the UK’s intention to withdraw and, thereafter, the UK and the EU must agree on the terms of its divorce within a two-year period. Subject to approval by the European Council, this timetable may be extended.

Such withdrawal is dependent upon the UK’s “own constitutional requirements”.[1] Of great concern is whether the onus lies on Parliament or the Executive to initiate such proceedings. Barber et al argue that the Prime Minister can trigger Article 50 only after gaining authorisation by an Act of Parliament.[2] This analysis follows Lord Browne-Wilkinson’s comments that it would be wrong for a prerogative power to be used where it would frustrate the will of Parliament.[3] Indeed, the Prime Minister has the prerogative power of treaty-making; however, it is claimed that using such power to withdraw from the EU would frustrate the will of Parliament as the European Communities Act 1972 intended to enable membership of the EU. To preserve the sovereignty of Parliament, ensuring that Parliament’s intention is not overridden by the executive, Barber et al contend that the 1972 Act must be repealed by a subsequent Act of Parliament. Only with this approval will the Prime Minister be able to exercise her prerogative power.

However, this analysis misinterprets Parliament’s intention in enacting the 1972 Act. Mark Elliot states that there is no conflict as Parliament’s actual intention in enacting the legislation was to ensure that “from time to time” the UK could discharge its obligations as afforded by the relevant EU Treaties.[4] Using the prerogative power to withdraw from the EU would not contradict this purpose as EU law may still be applicable in the UK after withdrawal (e.g. if access to the single market is retained). Therefore, should Theresa May exercise her prerogative power by triggering Article 50 without a Parliamentary vote, she will not act contrary to the intention of Parliament. Consequently, there is no legal requirement for Westminster to vote on such matter.[5]

Nevertheless, in the UK’s parliamentary democracy, it would be undemocratic for Parliament to have no influence on such a monumental constitutional issue. With MPs across the political spectrum supporting such analysis,[6] it is possible that Parliament will have some influence on how the UK should leave.[7] This could prolong the exit process as, to increase her chances of gaining a majority, it is likely that the Prime Minister will only give Parliament a vote on the issue once she is able to strengthen her negotiating power.

Similarly, there is much debate as to whether the Scottish Parliament ought to have an influence on proceedings.[8] This depends on the applicability of s.2 of the Scotland Act 2016: “the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”. Leaving the EU would require an amendment of s.29(2)(d) of the Scotland Act 1998,[9] and it was envisaged in the Devolution Guidance Note 10 that consent would be required by the Scottish Parliament in such circumstances concerning legislative competence. However, this requirement is contained only in the Sewel Convention and has not been transposed into statute. Instead, the nature of conventions, binding in operation but not in law,[10] reflects how, legally, a Legislative Consent Motion is not needed.

Indeed, Theresa May seems uncompromising on the subject, notwithstanding the threats posed by the Scottish National Party of another referendum,[11] stating that “Because we voted in the referendum as one United Kingdom, we will negotiate as one United Kingdom, and we will leave the European Union as one United Kingdom.”[12] Evidently, due to the huge constitutional implications involved in leaving the EU, it is unlikely that the Prime Minister will apply the Sewel Convention. Hence, it is likely that no consent will be required of Holyrood, so one need not expect any delays to the withdrawal process in this regard.

“Vote Leave, take back control”[13] was the slogan used to persuade the UK public to vote for Brexit. It is, thus, ironic that even after a vote which was supposed to return power to the UK Parliament, questions still arise as to the sovereignty of the UK legislative branch. If Parliamentary sovereignty is to be respected then MPs should get a vote on Article 50. As such, it is likely that this will delay the triggering of Article 50 beyond the end of March 2017. Should Theresa May secure a simple majority in Parliament on the issue, she will then need to persuade at least twenty EU Member States, totalling 65% of the EU population, to accept her draft deal.[14] With all the inherent complexities, expect the Brexit process to run beyond April 1st 2019, perhaps even into the next Parliamentary session.


[1] Art.50(1) TEU

[2] Available at https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/

[3] Powers exercised only by the executive. R v Secretary of State for the Home Department, ex parte Fire Brigades Union and others[1995] 2 AC 513

[4] European Communities Act 1972 s.2(1).Available at https://publiclawforeveryone.com/2016/06/30/brexit-on-why-as-a-matter-of-law-triggering-article-50-does-not-require-parliament-to-legislate/

[5] Akin to the analysis aforementioned, see https://notesfromnorthbritain.wordpress.com/author/conlawforum/ for why the recent High Court’s decision, ruling that there is a legal requirement, is incorrect.

[6] T.Helm.Available at https://www.theguardian.com/politics/2016/oct/08/mps-demand-vote-hard-brexit-single-market

[7] This was not the issue of concern during the referendum, so giving Parliament a vote on such matter will not jeopardise the result.

[8] S.Douglas-Scott.Available at https://constitution-unit.com/2016/06/13/removing-references-to-eu-law-from-the-devolution-legislation-would-invoke-the-sewel-convention/

[9] An Act of the Scottish Parliament must be compatible with EU law.

[10] Cabinet Manual 1st Edn.(2011)

[11] This requires approval by Westminster.

[12] S.Johnson.Available at http://www.telegraph.co.uk/news/2016/10/02/theresa-may-no-scotland-opt-out-or-veto-from-brexit/

[13] See http://www.voteleavetakecontrol.org/

[14] Art.50(4) TEU

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