50 Shades of confusion – Article 50

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Following the Brexit judgement last June, there has been much speculation surrounding the mechanics of the UK exiting the European Union and the impact this will have on UK business. Even now, over sixth months after the EU referendum, the UK’s exit strategy is unclear and the media confusion surrounding Article 50 has exposed weaknesses in the UK Law and constitutional processes. Clear answers to key questions are obscured by media mayhem. Ultimately, what is Article 50? Why was the Supreme Court case last week so significant? Ultimately, will Britain ever actually leave the EU?

The role of Article 50 is clear: Article 50 of the Lisbon Treaty on the European Union enables a member state to notify the EU that it wishes to exit the Union. In this case, the EU is then obligated to begin negotiating a formal withdrawal agreement with the UK. Currently, members in both the House of Commons and the House of Lords agree that the result of the EU Referendum is a binding democratic wish of the UK people and therefore a majority “leave” vote must be recognised by all members of parliament, as they are representatives of their constituencies. Overall, Brexit will go ahead, it is just a matter of time. Triggering Article 50 would mean the UK finally handing over the divorce papers to the EU, allowing for two years from the date that the Article was triggered for the negotiation process to take place and to make the separation official.

After taking over the Conservative party leadership in July last year, Theresa May has since expressed her intentions to trigger Article 50 in March 2017. In order to do this, the Prime Minister would have to bypass MPs in the House of Commons and unelected peers in the House of Lords to trigger Brexit by using the royal prerogative. The royal prerogative was a power previously possessed by the sovereign alone, whereby a monarch requires no parliamentary consent to exercise certain executive powers regarding the governance of the state. Since our constitutional monarchy now devolves these powers to the head of the government, the Prime Minister, Theresa May would have been able to trigger Article 50 without passing a Bill in Parliament. However, as always, the fun doesn’t end there….it is possible for parliament to challenge Theresa May’s use of this power, especially in unprecedented situations, such as Brexit, which have never been carried out before.

Last week, a Supreme Court case ruled by a majority of eight Supreme Court Judges to three, that Theresa May could not exercise the powers of the royal prerogative to trigger Article 50, potentially preventing the Prime Minister from starting the Brexit process in March as originally planned. The significance of this court case should not be underestimated: ultimately, the UK does not have a written constitution, therefore the rules for when the royal prerogative may be used are unclear. This confusion has sparked debate regarding the potential for a constitution in the future. However, the immediate implications of this judgement are clear; a parliamentary Bill will be necessary to trigger Brexit. Although the grey area surrounding Article 50 has been clarified, we haven’t seen the end of the legal contention surrounding Brexit and have yet to see the full economic consequences of the Referendum result.

 

By Julia Constable

 

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