The challenge of Article 50


untitled (21)The only way for a nation state to leave the European Union is by enacting article 50 of the Lisbon Treaty. Widespread expectation in the UK prior to Friday was that this would be enacted on Friday assuming we voted to leave, as much because of the way in which the Brexit camp presented the day as being the first working day after what some of them called Independence day. However David Cameron and some of his Government colleagues made it clear that they had other ideas and they did not plan for this to happen on Friday or indeed any time soon, indeed some commentators have suggested this may never happen. As we have heard in our news the EU leaders have called on the UK to enact this as soon as possible. However this may be easier said than done.

Article 50
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

There is no other way out, even if all 27 current members voted for us to be thrown out, that would have no impact. The problem is that our own constitution is a great deal less clear than might be assumed, and famously is not written down. It is partly because of this lack of clarity that on 4th May the House of Lords, European Union Committee published a document titled “The process of withdrawing from the European Union” As part of the process of preparing this document the Committee spoke to two experts, one of whom was Sir David Edward, a former Judge of the Court of Justice of the European Union and Professor Emeritus at the School of Law, University of Edinburgh. He is mentioned in paragraph 70 of the document:

The role of the devolved legislatures in implementing the withdrawal agreement

70. We asked Sir David whether he thought the Scottish Parliament would have to give its consent to measures extinguishing the application of EU law in Scotland. He noted that such measures would entail amendment of section 29 of the Scotland Act 1998, which binds the Scottish Parliament to act in a manner compatible with EU law, and he therefore believed that the Scottish Parliament’s consent would be required. He could envisage certain political advantages being drawn from not giving consent.

It is clearly far too early to make sense of what this means for a Government that appears to be in melt down, with an impoverished opposition. However this seems to be at the heart of why Nicola Sturgeon is seen as something of an article breaker or maker. Her willingness and that of the Scottish Parliament to consent to article 5o being enacted seems unlikely. So where does that leave us?

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About ianchisnall

I have a passion to see public policy made accessible everyone who want to improve the wellbeing of their communities. I am interested in issues related to crime and policing as well as in policies on health services and strategic planning.
This entry was posted in EU Referendum, Parliament and Democracy. Bookmark the permalink.

4 Responses to The challenge of Article 50

  1. Peter Grace says:

    Good Morning Ian, Scotland is not an independent state, so it does not formally have a direct relationship with the EU – that occurs through the UK. The Scottish Secretary, David Mundell, stated that Scotland remained within the Union via the referendum of September 2014 – and that Scotland, consequently, is bound by UK collective decisions such as the vote on Thursday.

    You mention the Scotland Act 1998 the statute which created (or, rather, recreated) the Scottish Parliament and Clause 29 of that Act, anent legislative competence, empowers the Scottish Parliament to legislate in the devolved areas for which it is responsible – while obliging it to take care that nothing it does is “incompatible” with EU law.
    So, the Scotland Act 1998 Act proceeds by specifying the issues which are reserved to Westminster – then grandly declaring that everything else is devolved and Schedule V to the Act lists the reserved areas.
    At sub-clause 7, it is noted that “international relations, including relations with territories outside the United Kingdom, the European Union and other international organisations” etc…..”are reserved matters.” They are, in short, Westminster’s purlieu.
    However, it then goes on to note that this reservation does not include obligations under EU law. Hence, Nicola Sturgeon’s argument that Holyrood is entitled to a say: based upon the legal formula which obliges Scotland to adhere to EU law while Westminster might point to the broader Schedule V, reserving relations with the EU to the UK.
    Then there is a further point. Clause 28 of the 1998 Act notes at sub-clause 7, in dry terms, with regard to legislative competence that “this section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”
    So, it is made clear that despite the Scotland Act 1998 Westminster’s ultimate sovereignty over the UK, the entire UK, is unaffected
    Holyrood might withhold consent for the legislative moves to implement Brexit. Westminster might note such a verdict, no doubt with polite gratitude – then proceed to implement Brexit, exercising its over-riding sovereignty.

    So, another option might be a second independence referendum – in order to allow Scotland to join/rejoin the EU in her own right, as a sovereign state. However, Nicola Sturgeon is not anxious to drive this option forward.
    Why not? Because she fears she might lose it. The big challenges she faced in September 2014 were: the economy, the currency and membership of the EU, in addition the SNP enjoyed an overall majority in the Scottish Parliament. Despite, the membership of the EU changing, she may have the largest party in Scotland, but she no longer has an overall majority. In addition, issues one and two remain. What would independence do to the Scottish economy? What currency would an independent Scotland use?
    Also, Scotland faces an uphill struggle with regaining membership of the EU as member states like Spain and Belgium would not want to encourage special status for Scotland which might, in very different circumstances, be demanded by their own autonomous provinces.
    In reality, Nicola Sturgeon and the SNP are not sure of the way forward, despite the rhetoric … but, even they realise that, currently, breaking up the UK is not the way forward.

  2. Tom Martin says:

    Great explanation Peter, and this just highlights the fact that it really is sovereignty that is at the heart of this whole issue. Scotland, the Scottish Parliament, the Scottish Government, the SNP, Nicola Sturgeon – none of these bodies have sovereignty. Any official status and rights they do have derive from an Act of Parliament, and at any point a majority in Parliament could revoke or amend those rights. The Scottish Parliament could be dissolved and its powers undevolved, and the only place the SNP could have any say on that is in Parliament. Hence the nationalists desire for full independence, by which they mean simply a desire for full sovereignty.

    The only body that can overule Parliament is the EU, because in joining the EU Parliament explicitly surrendered some of its sovereignty upwards to the EU. There are innumerable permutations for what form Brexit could take, but in every permutation there is one thing that HAS to happen. Parliament will become fully sovereign again, and no other body will be able to overrule it. When we talk about what ‘leaving’ the EU means it really comes down to that one thing. Every thing else – trade, immigration, regulatory harmony, single market – is up for negotiation.

    • ianchisnall says:

      Hi Tom, I value you taking the trouble to read my blog. Can I just challenge you final two sentences. I have no concern over our sovereignty. It is perfectly clear that we have sovereignty intact and that has nothing to do with the referendum. We are a sovereign nation and our sovereignty has never been under threat since 1939.

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