Brexit | Can the EU force the UK to trigger the two-year Brexit process?

There has been a great deal of discussion over the last couple of days about whether the European Union can force the United Kingdom to begin the two-year exit process set out in Article 50 of the Treaty on European Union. So: can the EU make the UK do that? The short answer is “no”. Below is a slightly longer answer, and an explanation of why the UK Government – legally, at least – is in the driving seat on this matter.

Although there is more than one legal basis on which Brexit could be accomplished, the most likely mechanism is Article 50 of the Treaty on European Union. This provision has been much discussed in recent days, but the discussion has not always been on the basis of an accurate understanding of what Article 50 actually says and means. Let’s start, then, with the actual text of Article 50. For now, the most salient parts are paragraphs 1 to 3. (The italics are mine.)

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union …

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

On Friday, Donald Tusk, the President of the European Council, said that he expected the UK to trigger this process “as soon as possible”. But that may not be in the UK’s interests, not least because of the hiatus that is caused by David Cameron’s decision to resign. He clearly envisaged in his referendum statement that negotiations with the EU would not formally begin until his successor was in place in the autumn. The question, then, is whether Article 50 allows the UK to insist upon its preferred timetable.

There are two fundamental points about Article 50 that help us to answer that question. The first is that Article 50 is wholly irrelevant unless and until a Member State has made a decision in accordance with its own constitutional arrangements to leave the EU. The second point is that once such a decision has been taken there is an obligation to notify the EU at which point the departing Member State loses control of the timetable: exit is (unless the EU agrees otherwise) irrevocably set for two years from the date of the notification.

The crucial question, therefore, is whether a “decision” has been made in the sense that Article 50 uses that term – to which the answer is “no”. The outcome of the referendum is not a decision for the purposes of Article 50. That is so because the referendum – legally speaking – was purely advisory. The legislation that allowed the referendum to take place did not invest the outcome of the referendum with any sort of legal effect. The UK Government is therefore not legally obliged by the referendum to trigger the Article 50 process, either at any particular point in time or at all. Nor does anything else obliged it to do so. Whether – and, if so, when – to trigger Article 50 is a matter for the discretion of the UK Goverment using its inherent powers – known as “prerogative powers” – to conduct UK foreign policy. It follows that, as far as the UK’s “own constitutional arrangements” (as Article 50 puts it) are concerned, no “decision” has yet been taken.

The referendum, then, is not the “decision” that fires the Article 50 starting gun. But what about the conversations that the Prime Minister will inevitably have when he attends this week’s European Council meeting? By talking about Brexit, will Cameron be notifying the Council of the UK’s decision to leave, thereby – as has been suggested by one commentator over the weekend – inadvertently triggering Article 50? No he will not – because unless and until Her Majesty’s Government formally makes a decision within the meaning of Article 50, any conversations that the Prime Minister has cannot amount to notification of that decision – quite simply because there is no decision to be notified.

The upshot is that although the EU may bring great political pressure to bear upon the UK to get on with formal Brexit negotiations, there is nothing it can legally do so as to force the pace.