Leaving the EU & Article 50: Legal entitlements, practical opportunities

Martin Howe QC

Friday 22nd July: This week French and European counterparts discussed with Mrs May their thoughts on the timing of Article 50 to give effect to the UK’s decision to withdraw from the EU. Monsieur Hollande pressed for rapid action. Mrs Merkel seemed to acknowledge more time may be needed. For her part, the prime minister has stated that the process will begin in 2017. Who is right? Here Martin Howe QC, in an extract based on his new pamphlet*, explains:

Not only is it possible, but it is prudent for the UK to engage in a period of planning and of informal pre-negotiation with other member states, before invoking the formal procedure of Article 50 and setting its 2-year timetable running. There will be a significant task in revising UK domestic law in preparation for exit, even if this is speeded up by using the regulation-making procedures under section 2(2) of the European Communities Act 1972. At the same time the UK will need to replace areas where its international relations are currently conducted via the EU with direct international treaty arrangements. This suggests that 2 years may well be a relatively short period in which to prepare for exit, particularly if, as seems apparent in the aftermath of the vote, no serious contingency planning was done inside Whitehall for the eventuality of a Leave vote.

The public rhetoric by some EU leaders in the wake of the referendum against delaying formal notification under Article 50 should not be taken at face value. Before the referendum, German officials meeting British delegations outlined the sort of arrangements with which their country would be happy after a possible leave vote, and the German Chancellor has made clear that she expects a positive and constructive approach. There is every incentive for individual member states, particularly those who export significant proportions of goods to the UK, to ‘pre-negotiate’, whatever the public ‘stance’ of leaders anxious to limit what they claim to be the ‘damage’ caused by Brexit to the EU project.

It would therefore be ill-advised to give formal notice under Article 50 too early, i.e. at a time when the 2-year period would expire before the UK would be ready for exit. That would most likely lead to a request by the UK to the EU to agree an extension of time, which could well be met by a demand for concessions in return. The only circumstances in which an extension of time should be contemplated would be if an agreement is very close and there is a mutual desire to allow a little more time to close the deal.

A delay between the referendum and giving formal notice cannot, however, be too long. The latest date possible for the process to end is constrained by the UK political timetable so that the process of exit is concluded and wrapped up in good time in advance of the end of the current parliament. Moreover the business community will need reassurance that there is a firm end-date to the process. Complex international negotiations would expand to fill the time available to them and a firm end date is needed in order to bring them to a successful conclusion.

So, notification should be given under Article 50 as soon as we in the UK are confident that all our preparations for exit, involving changing our internal law and lining up external non-EU trade deals, will be in place within the 2 year period. We will then be able to undertake the negotiations proper from a position of strength, knowing that we will be in a position to exit the EU hopefully with, but if necessary without, a deal with the EU.

*Martin Howe QC is a barrister at 8 New Square specialising in IP and EU law. His publications for Politeia include How to Leave the EU: Legal and Trade Priorities for the New Britain and Zero Plus: Principles for EU Renegotiation.