EU Referendum, In’s and Out’s and a thought about Article 50


We are so very fortunate in Britain to be living in a democracy that is envied in other countries.  That democratic process was no more in evidence than in the recent European Union Referendum.

However fortunate we are, it is undeniable that it has been a week of unprecedented shocks which has seen the pound falling causing worldwide and domestic economic uncertainty, the resignation of our Prime Minister, political fall-outs, potential historic changes to our constitution and bitter arguments on social media between the ‘inners’ and the ‘outers’.  However, there is always one thing in life that is certain and that is law.

In law, whenever a contract is drafted, it is always wise for the author to draft a voluntary ‘get-out clause’ and in the case of a country’s membership of the European Union, Article 50 is such a get-out.   The bad news is that Article 50 allows for only one party (the EU) to seek a negotiation, not the withdrawing member state (Britain).

Article 50 forms part of the Lisbon Treaty and sets out how an EU country might voluntarily leave the union.  It is very short, all of five paragraphs long and states: “Any member state may decide to withdraw from the union in accordance with its own constitutional requirements”.

Whilst Article 50 is very vague (it is assumed that when drafting the authors felt there wouldn’t be any member states leaving the EU) it is certain on one point that as soon as a member state lodges its intention to leave the EU an invisible stopwatch is triggered ticking down 24 months with the EU becoming in charge of the negotiating timetable.  The process is very strict meaning that it cannot be reversed or temporarily suspended if Britain does not reach deals or changes its mind.  During these 24 months, the outgoing member state must quickly negotiate any trade agreements with the remaining member states.  If no trade negotiations are reached within this relatively short time period, then it must leave empty handed.

Whilst David Cameron has stated that he is not going to be the one who presses the Article 50 red button, there is no mechanism in EU law that compels a state to withdraw.  Or is there?

Well surprisingly there is to some degree; Article 7 of the Lisbon Treaty allows the EU to suspend Britain (or any other member state) that it believes to be in breach of the basic principles of freedom which include democracy, equality and the rule of law.   Interestingly, not only has Article 50 never been used, neither has Article 7.  We are in unchartered waters.

There is some light for those that voted to remain within the EU; paragraph 5 of Article 50: “If a State which has withdrawn from the Union asks to re-join, its request shall be subject to the procedure referred to in Article 49”.  A short paragraph describing an incredibly long and slow process of re-joining.

As a family lawyer, I cannot help but see the similarities between the referendum and family law.  We have entered a legal separation heading swiftly towards a divorce; all we can hope is that an amicable clean break is reached at the very end.

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