by Richard Lang
Paragraph 1 of Art 50 of the Treaty on European Union, governing voluntary withdrawal of a member state from the EU, reads: “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.” This right is followed in the next paragraph by an obligation: “A member state which decides to withdraw shall notify the European Council of its intention.” This contribution addresses a single hypothetical scenario, namely, one in which Theresa May triggers Art 50 without prior parliamentary approval, asking: If she did this, would she be acting illegally? Several legal commentators have now offered answers to this question, the majority in the affirmative, and last month a legal action began by which the claimants wish to enjoin May from so acting. Thus the judges will have the final say. But which judges?
First things first. The academic consensus is that triggering Art 50 is the only legal way for the UK to withdraw from the EU. For the moment, the UK is still bound by her Treaty obligations. By the same logic, it follows that during the triggering process (which only involves sending a letter to the European Council, and will therefore be almost instantaneous), the UK will be bound by the doctrine of the primacy of EU law. Although developed by the Court of Justice through its case law, this doctrine is now enshrined in the Treaty, at Declaration 17.
Next, the possible grounds for challenging May’s act subdivide into two categories: the argument from UK Constitutional Law, and the argument from EU Law. This contribution concentrates on the second, which in any event cannibalises the first. From the point of view of EU Law, the claimants would presumably argue that, although May is the head of the government which is the international projection of the member state, she cannot claim that the UK has “decide[d] to withdraw” under Art 50(2) where said decision was not “in accordance with its own constitutional requirements” under Art 50(1).
The precise ways in which the decision allegedly fell short of those requirements have been discussed at length by many learned jurists, including in NLJ Geoffrey Bindman QC (“Do we have to leave the EU?”, NLJ, 8 July 2016, p 6), and their work should be consulted for further elucidation. Particularly recommended are Barber, Hickman and King, “Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role”, UK Const. L. Blog and contra, Armstrong, “Push Me, Pull You: Whose Hand on the Article 50 Trigger?” UK Const. L. Blog.
The issue is, though, that the interpretation of the phrase “constitutional requirements” from the Treaty would be the exclusive role of the Court of Justice. Although Art 50 has never been used before, let alone litigated upon, this phrase is used in over 10 other Articles, some of which have been the subject of judicial interpretation. An interesting case to consider would be Case C-145/04 Spain v UK, where the court refused to criticize the UK’s decision to grant EU voting rights to Commonwealth citizens residing in Gibraltar but not having citizenship of the Union. To say that this was a “light touch” appraisal of the domestic constitutional requirements at stake would be an understatement, more like “no touch”. This raises the prospect that whatever interpretation the member state concerned has already made of its own constitutional requirements will be nodded through, and the party challenging this interpretation will leave the court defeated and without further legal avenues to pursue, EU Law having primacy over domestic law.
It is to be expected that, on a reference from the UK court, the Court of Justice would once again take this path in any ex post challenge arising from a prerogative triggering of Art 50. An ex ante challenge, such as that currently before the courts, may have a first mover advantage, although that will still depend on the view taken by the Court of Justice both on the interpretation of “constitutional requirements” and on the issue of when the latter phrase should be interpreted: the Court does not like hypotheticals.
Parliament has every right to rely on British judges to restrain government from cutting across her. But the judges must exercise the law as it stands on the day on which the reliance is placed. After the event, barring a possible but unlikely disagreement of the prime minister’s interpretation of UK constitutional law by the Court of Justice, primacy will force them to uphold May’s action. Before the event things may be different, but only if the Court of Justice hands sovereignty in interpreting the requirements to the national judges before it is too late. Either way, even where the issue under discussion is the UK’s exit from the EU, EU law (including legal interpretations by the Court of Justice) must take precedence over national law. Put another way, even as she attempts to remove the shackles of the doctrine of primacy, the UK cannot act as though they are already off.
Richard Lang BA(Hons) LLM PhD, senior lecturer in law, Brighton Business School, University of Brighton (R.A.Lang@brighton.ac.uk)
This article was originally published on New Law Journal.