Article 50 – still waiting

Is the UK going to leave the EU? It is not certain, with a number of questions yet to be answered.

EU flag
Source: Bloomberg

There has been much talk of Article 50 in the past week and its potential activation or otherwise. Many commentators have pointed out that the UK has yet to actually activate Article 50, and so in effect remains a full member of the EU. Until the process begins nothing actually changes, regardless of what politicians on both sides say.

The key element here is that only the member state can make the notification - no one else. And it is for the member state to choose when to activate Article 50. The fact that David Cameron did not activate it a week ago, leaving that particular joy to his successor, suggests that it may never be activated.

Indeed, even if a UK prime minister wanted to hit the button, it is not at all clear that he can. The article notes that a state must do so ‘in accordance with its own constitutional requirements’ (emphasis mine).

This might require a PM to gain the agreement of the devolved governments, or to submit it to an act of parliament. It may lie within the realms of the royal prerogative, that dubious construct of the UK constitution (itself a complex thing), which would indicate that it is entirely up to the PM.

However, as we saw with the Syria vote in 2013, such major decisions as going to war are now being put to the legislature (i.e. Parliament) rather than simply being within the purview of the executive (the PM). Arguably, triggering Article 50 would fall within that.

The EU referendum was specifically set up to be non-binding, unlike the referendum on the Alternative Vote (remember that?), which was designed to be binding if there was a ‘yes’ vote. It would be tricky for a government of any type to try to ignore the result, but not impossible.

We will hear much from all sides over the coming weeks and months about Article 50, but I would suggest that people should focus on the UK prime minister (whoever that may be), Angela Merkel and Donald Tusk. Any other comments from other politicians, trade commissioners and the like should be treated as entertaining diversions, but nothing more. These three will be the real movers and shakers as the UK looks to its future, and it is up to the PM of the UK to activate Article 50.

As a side note, activation requires a proper written notification, it cannot simply be done verbally. In effect, the EU has to wait for a fully-paid up notification, done in the sight of lawyers (‘reverently and responsibly in the sight of a number of lawyers’ as the excellent Jack of Kent legal blog puts it, quoting marvelously from the Church of England’s wedding service).

Thus, we are reminded of the fact that the EU is made up of sovereign states. They are, in essence, stuck with us until we decide to hit the button on Article 50, something that may never happen.

It promises to be an entertaining few months. 

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