Judges’ Brexit & binding nature of Article 50

Judges’ Brexit & binding nature of Article 50


“As is well known, the referendum on whether the United Kingdom should leave or remain in the European Union produced a majority of 51.8 per cent in favour of leaving. But that referendum was not legally binding on Parliament.” (Lady Brenda Hale, Deputy President of UK Supreme Court, 16th November 2016, Kuala Lumpar, Malaysia)


With a view to leaving the European Union, the UK Prime Minister Theresa May has vowed to trigger the Article 50 notice by the end of March next year. She intended to leave the EU altogether within two years and no later than spring 2019.

Unfortunately on 15th November 2016, the Prime Minister dealt fresh blow as Lady Brenda Hale, one of the Supreme Court judges, signals major delay on starting Brexit. She is one of the 11 Supreme Court Judges who would hear the Government’s appeal against the legal challenge to Brexit in December 2016. Lady Hale said a “simple Act of Parliament” may not be sufficient to start the process, arguing a ‘comprehensive replacement’ of a 1972 Act may be needed.

Judges’ Brexit

Prior to that on 3rd November 2016, a ruling was given by three High Court judges that the Prime Minister Theresa May does not have power to use the royal prerogative to trigger Article 50 herself. They unanimously held that the Prime Minister cannot trigger Brexit without Parliament’s approval. Against this Ruling, the Government applied for Permission to appeal before the Court of Appeal. On 4th November 2016, the Prime Minister Theresa May applied before the Supreme Court for permission to appeal against a legal ruling that she cannot trigger Brexit without Parliament’s approval. On 5th November 2016, Theresa May has been given permission by the Supreme Court to appeal against a legal ruling that she cannot trigger Brexit without Parliament’s approval. This means, the Government has been allowed to appeal against the High Court ruling delivered last week that the Prime Minister must seek MPs’ approval to trigger Article 50 of the Lisbon Treaty, launching official Brexit talk.

The challenge will start on 5 December and is expected to last four days. The 11 Supreme Court judges would consider whether the High Court was right to rule the Government must get parliamentary approval before triggering Article 50. A judgment is expected by the end of December.

As Lady Brenda Hale, one of the Supreme Court judges hearing the Government’s appeal against the legal challenge to Brexit next month, expressed her own views, ahead of the appeal hearing, which begins 5 December, it is expected that such a requirement could delay Brexit, or result in it appearing in a softer approach compared to ‘Hard Brexit’ plans.

Therefore in this Article an attempt would be made to establish how the UK Government could trigger Article 50 despite the High Court Judges’ ruling, Pros & cons of Article 50 and binding nature of the Referendum.

What is Article 50 ?

Article 50 of the Lisbon treaty sets out how the UK (an EU member state) might voluntarily leave the union. Article 50 says: “Any member state may decide to withdraw from the union in accordance with its own constitutional requirements.” A very close examination of the words used in this article would show that the wording is vague; almost as if the drafters thought it unlikely it would ever come into play.

In the last couple of days, Article 50 has become the subject of a dispute between EU leaders desperate for certainty in the wake of the Brexit vote, and Brexiters in the UK playing for time.

Withdrawal Process

Under Article 50, the UK an EU leaver country should first notify the European council of its intention to leave the European Union. Then the UK should negotiate a deal on its withdrawal from the EU and finally establish legal grounds for a future relationship with the EU. On the European side, the agreement needs a qualified majority of member states and consent of the European parliament.

There is a clear provision in Article 50 that gives negotiators two years from the date of article 50 notifications to conclude new arrangements/Divorce settlement. Failure to do so results in the exiting state falling out of the EU with no new provisions in place, unless every one of the remaining EU states agrees to extend the negotiations.

Once the article 50 trigger is pulled / triggered, the EU council of ministers will by qualified majority voting agrees a negotiation mandate. In the form of directives, this negotiation mandate will be placed before the EU Commission. They will have to agree on the terms for divorce, essentially a set of instructions and red lines for the European commission.

Upper Hand to EU

It appears that the process is designed to give the EU the upper hand over the departing state i.e. in this case the United Kingdom. The clause puts most of the cards in the hands of those that stay in.

Binding nature of Referendum

While 51.9% of the British electorate had voted to leave the EU, that referendum “is not legally binding on parliament”. Britain’s Brexit vote does not require the government to pull the trigger immediately. The referendum is not legally binding upon the UK.

Even in Article 50, there is no mechanism to compel a state to withdraw from the European Union. While delay is highly undesirable politically, legally there is nothing that can compel a state to withdraw. Article 50 is there to allow withdrawal, but no other party has the right to invoke article 50, no other state or institution.

In case of breach

It is also mentionable that under Article 7, first introduced in the treaty of Amsterdam, the EU could suspend a member if it deems it to be in breach of basic principles of freedom, democracy, equality and rule of law.To trigger article 7, there must be a reason to do with the foundational values of the EU, democracy and the rule of the law on so on.

Article 7 has never been used. Recently, in relation to Poland and Hungary, there has been some discussion of Article 7 of the Lisbon Treaty. But it is very difficult to see this applied to the UK.

It is to be noted that Article 50 was never triggered before within the EU. There is only one precedent to refer to here. Greenland left the EU in 1985 after two years of negotiation. It has a population of 55,000, and only one product: fish.


With 250 words and five short, obscure paragraphs in a European treaty, Article 50 have suddenly become valuable political currency in the aftermath of Britain’s decision to leave the EU. This Article has instantly become the defining clause in a war of words between Britain and the EU. In addition, the recent controversial statement of Lady Hale one of the 11 Supreme Court Judges who would hear the Government’s appeal against the legal challenge to Brexit in December, has raised the prospect that Prime Minister Theresa May would have to comprehensively replace existing EU legislation before the government could even begin Brexit, in a move that could seriously delay the process. One of the questions raised in these proceedings is what form of legislation would be necessary for parliament to be able to lawfully trigger article 50, if the government loses its appeal. A number of politicians have raised the same question.

Though it was not dealt with explicitly in the high court judgment, it is not a new issue. In no way was Lady Hale offering a view on what the likely outcome might be. Any potential agreement the UK struck with the EU at any point after withdrawal would come up against the same dynamics as Article 50, most notably requiring approval by EU leaders, MEPs and national parliaments. The UK will have to renegotiate 80,000 pages of EU agreements, deciding those to be kept in UK law and those to jettison. Nobody knows how long this would take. But some ministers say it would clog up parliament for years.

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Barrister M. A. Muid Khan
Barrister M. A. Muid Khan is a Barrister of the Honourable Society of Lincoln's Inn, Chartered Legal Executive Lawyer of CILEX. He was declared as the Best Human Rights Lawyer of England & Wales by Bar Council, Law Society & CILEX. He can be contacted at barristermuid@yahoo.co.uk