Some of the accumulated noxious legal dust will now settle with the enacting of the grossly mistitled EU (Notification of Withdrawal) Act 2017. We may have witnessed our first post-legal legal event. Populist law. If many people say a legally incorrect thing many times, it may come to be treated as if it were correct. Alternative law.
It may be worth putting on the record, here and now, that the proceedings in the courts and the legislation would not have been necessary, if the Government had advised itself correctly on four matters.
(1) The Government already had the legal power and a legal obligation under UK law to notify the EU, following a (political) decision to withdraw. That is the effect of Article 50 itself – “may decide” and “shall notify”. Article 50 is part of UK law by virtue of the European Communities Act 1972. Discussion of prerogative powers in UK law was irrelevant. Revival of the hoary myth of ‘the sovereignty of Parliament’ need not have happened. (Parliament has a legislative supremacy shared with institutions of the EU.) Arcane judicial consideration of the 1972 Act could have been avoided.
(2) Notification of an intention to withdraw is not the same thing as a notification of withdrawal. The latter is a unilateral right of parties to many treaties, including the NATO Treaty, the European Human Rights Convention, or the Paris Climate Change Treaty. Withdrawal from the EU Treaty would have enormous effects on the other member states, and on the parties to hundreds of EU trade agreements with non-member states. It is, therefore, an intensely multilateral and consensual right of withdrawal, as the drafting of Article 50 makes clear.
(3) The European Court of Justice would almost certainly decide that the two-year period mentioned in Article 50(3) does not apply in the case of the United Kingdom. The Court would refer to the terms of Article 31 of the Vienna Convention on the Law of Treaties concerning the interpretation of treaties. The “object and purpose” of the EU Treaty provision is to deal with a recalcitrant or defaulting member state. The withdrawal of a member state such as the United Kingdom without a withdrawal agreement would lead to a tsunami of legal chaos and legal consequences. The mere fact of the continuation of the negotiation of a UK withdrawal agreement would nullify the two-year provision.
(4) The European Court would almost certainly decide that a notification of intention to withdraw can be withdrawn. Article 50 does not preclude it. For example, the (political) decision to withdraw might be negated by a further referendum or a general election.
It should also be noted that, in normal circumstances, the Supreme Court would have regarded itself as obliged, under Article 267 of the EU Treaty, to seek preliminary rulings from the European Court on points (3) and (4), before deciding that mere notification of an intention to withdraw would alter legal rights and obligations in the UK, giving rise to the necessity of legislation.
Philip Allott is Professor Emeritus of International Public Law at Cambridge University and a Fellow of Trinity College Cambridge.
(Suggested citation: P. Allott, ‘Taking Stock of the Legal Fallout from the EU (Notification of Withdrawal) Act 2017’, U.K. Const. L. Blog (2nd Feb 2017) (available at https://ukconstitutionallaw.org/))