affiliated to the International Association of Constitutional Law
The Short Title of the European Union (Notification of Withdrawal) Bill is incorrect. The notification is not of withdrawal from the EU. As the Long Title and Clause 1(1) of the Bill correctly show, it is a European Union (Notification of Intention to Withdraw) Bill. Article 50(2) of the EU Treaty speaks only of notification of an intention to withdraw. Notification of intention to withdraw affects legal rights and obligations, not inevitably (pace the Supreme Court in Miller), but only contingently, that is to say, if and when withdrawal actually occured, and to the extent determined by the ultimate withdrawal agreement, if there is such an agreement.
The erroneous Short Title of the Bill goes against the Government’s mistaken claim before the Supreme Court that they could have given notification of intention to withdraw under the foreign relations prerogative power, that power admittedly not being a power to change UK law. They certainly know that actual withdrawal from the EU, at some date in the future, would substantially affect legal rights and obligations in the UK. The majority in the Supreme Court might have saved many pages by accepting the simple point that notification of intention to withdraw is a power of the Government already contained in Article 50 itself, and hence contained in UK law.
Philip Allott is Professor Emeritus of International Public Law at Cambridge University and a Fellow of Trinity College Cambridge.
(Suggested citation: P. Allott, ‘The Short Title of the European Union (Notification of Withdrawal) Bill Is Incorrect’, U.K. Const. L. Blog (30th Jan 2017) (available at https://ukconstitutionallaw.org/))