The week that was

The biggest news of the week was the Budget: the biggest news about the budget should have been that Brexit was not mentioned once. Headlines were dominated by the increase of high earning self-employed persons, overlooking another potentially important change lurking in the red box – the introduction of UK VAT on roaming telecoms services outside the EU – making it 20% more expensive to use a UK mobile in non-EU countries, or those that the UK seeks to do business with after Brexit. In other financial news, in Cornwall, where the majority voted to leave the EU and also relinquish £60m of annual funding from the EU, the Government has agreed to provide £18m to prop up the county’s weak economy.

Parliament this week warned of the consequences that might arise if the UK were unable to negotiate a Withdrawal Agreement  – the House of Common’s Foreign Affairs Committee advised the government to start preparing for the “real” possibility that it will leave the European Union without a deal. Worrying words also from Mars for chocolate lovers – a top Mars executive says that if the UK leaves the EU without a trade deal it will endanger jobs and raise prices. If the UK falls back onto World Trade Organisation rules, prices could be subject to trade tariffs of 30% in confectionery, 20% for animal products, over 15% for cereals and more than 10% for fish and fruit.

New personnel were sent to Brussels: the UK Permanent Representation to the European Union announced two new senior appointments. Katrina Williams has been appointed to the post of UK Deputy Permanent Representative and Simon Case will be the new Director General for the UK-EU partnership – he will work with Sir Tim Barrow, the UK Permanent Representative to lead the work on Brexit. Let’s hope he gets on well with Donald Tusk who, much to the anger of his compatriots, has been re-confirmed as President of the European Council for a further 2.5 years. If the two year timetable is held, he will therefore lead the EU-27 Heads of State and Government through Brexit.

Finally, daring to dream into the future, Commission President Juncker, shared his hope that the UK will one day rejoin the EU. Back to the present and he has been contacted by European Ombudswoman Emily O’Reilly, who has raised concerns about transparency and public access to documents. She has received complaints about the response to requests for public access to documents connected to the UK referendum and the negotiations.  Juncker has been asked to provide details of how ‘the Commission intends dealing with the transparency of the upcoming negotiations, bearing in mind citizens’ rights.’

This week begins with Dutch voters heading to the voting booths in a national election that may see this liberal country lurch to the right; the Prime Ministers prepares to trigger Article 50; academics at Oxford, fearing a huge loss of staff and skills, urge the Prime Minister to protect the residency rights of EU workers in the UK; and Angela Merkel prepares to meet Donald Trump, with aims apparently to sway rather that persuade him on climate change. One wonders whether she may also charm Steve Bannon, Trump’s right-hand, right-wing man in the West Wing, whose anti-EU worldview is keep many in Brussels awake at night.

From the CJEU:

C-342/15 Piringer : Freedom to provide services: Member States may reserve to notaries the power to authenticate signatures appended to the documents necessary for the creation or transfer of rights to real property

C-398/15 Manni : Approximation of laws-  there is no right to be forgotten in respect of personal data in the companies register

C-615/15 P Samsung SDI and Others v Commission Competition – The Court upholds the fines imposed on Samsung SDI and Samsung SDI (Malaysia) for their participation in the cartel on the market for tubes for television sets and for computer monitors

 C-484/15,C-551/15 Zulfikarpašić : Area of Freedom, Security and Justice – Notaries in Croatia, acting in enforcement proceedings on the basis of an ‘authentic document’, cannot be deemed to be ‘courts’ either within the meaning of the Regulation on the European Enforcement Order or for the purposes of the application of the Regulation on the recognition and enforcement of judgments in civil and commercial matters

Call for contributions: R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references

The editors of Eutopialaw would like to invite authors to contribute short (500 words) comments in reaction to the forthcoming Supreme Court decision in the Miller case, expected on Tuesday 25th January. Contributions can be on any aspect of the judgment, but given the focus of the blog should highlight those aspects of interest to EU law and lawyers. We hope with this call for short posts to encourage immediate responses that can be rapidly read and serve to stimulate ongoing conversation on the important and long term issues raised by this case. Authors should assume an informed readership that is familiar with the basics of the case and of EU law.

 Posts should be sent to the Editorial team at

An analysis of the EU law questions surrounding Article 50 TEU: Part Two

Dr Philip Syrpis

This is the second and final part of this series; the first is available here.

7. What is the status of the UK during the negotiation process?

As discussed above, subject to application of paragraph 4, which deals with participation in discussion in the European Council and Council relating to the withdrawal process, the withdrawing State remains a Member State of the EU, with rights and obligations intact.[1]

As regards the rights of the withdrawing State, certain interpretive difficulties may arise in any attempt to delineate the situations in which the withdrawing State may, and may not, be involved in European Council and Council decision-making. Once again, this is an area in relation to which the guidelines provided by the European Council may provide clarity. In practice it seems almost inevitable that the role and influence of the withdrawing State will inevitably diminish. It is unclear whether the State will have an interest in influencing the making of decisions at EU level which might well never concern it; and arguable that it is not legitimate to afford it such a role. The power of the argument against involvement will of course depend on the extent to which it is envisaged that the withdrawing State aspires to continue to have a relationship with the EU.

As regards obligations, the UK will continue to be bound by EU law rules until the withdrawal agreement enters into force.[2] This includes new EU legislation adopted after Article 50 is triggered, but before the withdrawal agreement enters into force.[3] While the UK is due to assume the Presidency of the Council in the second half of 2017, it is anticipated that alternative arrangements will be made in order to ensure the efficient functioning of the Union.[4] The principle of sincere cooperation enshrined in Article 4(3) TEU would continue to apply, and there are suggestions that it might be used in relation to the conduct of the withdrawing State during the process of withdrawal.[5]

8. How is the withdrawal agreement concluded?

Finally, there are significant uncertainties relating to the conclusion of the withdrawal agreement, both by the EU and the withdrawing State.

Let me begin with the position as regards the EU. The withdrawal agreement itself is negotiated as an EU external agreement, as is made clear by the reference to Article 218(3) in Article 50. Paragraph 2 provides that the agreement is to be concluded ‘on behalf of the Union by the Council acting by qualified majority after obtaining the consent of the European Parliament’.[6] Thus, it is possible for an agreement to be reached without the approval of all 27 Member States; and, unlike in the case of accession, for the scope of the Union to be altered notwithstanding the lack of the unanimous consent of the Member States. Equally, it is possible for an agreement not to be concluded notwithstanding the fact that it is approved by the governments of all the Member States. No agreement can be concluded if a majority in the European Parliament vote against it. It is also possible, as discussed in e) above, that alongside any withdrawal agreement, there will be another agreement, or set of agreements, dealing with the future relationship between the withdrawing State and the Union. To the extent that any such agreements are mixed agreements, they require ratification by all Member States, a process which will inevitably slow down the conclusion of the negotiation process.[7]

On the side of the UK, the withdrawal agreement would require ratification in Parliament, in accordance with the UK’s constitutional requirements.

How might these questions be settled?

The discussion so far indicates that many of the EU law questions relating to the process of withdrawal from the EU are unresolved. Nevertheless, given the uncertainty inherent in Article 50, it is contended here that it is possible, perhaps probable, that there will be litigation in relation to the process. There is the potential for such litigation to occur at both the national and the European level. It is difficult, at this stage, to predict the form which such litigation might take, but there are a range of claims which it is possible to envisage.

Claims may come before the European Court of Justice in the following ways. The most obvious basis for legal action will be in relation to the content and scope of any withdrawal agreement. Such an action might relate both to the procedures through which the withdrawal agreement was reached, and the substantive terms of any such agreement; and might come before the Court either directly in an Article 263 TFEU judicial review action, or indirectly, via a preliminary reference from a national court under Article 267 TFEU. It may, in addition, be possible to seek an advisory opinion from the Court via Article 218(11) TFEU as to whether the agreement is compatible with the Treaties. Actions may also be brought at earlier stages in the process, for example in relation to whether the negotiation process is compatible with EU law. As has been mentioned above, it is possible to envisage the making of claims against the withdrawing State, not only by the Commission under Articles 258 and 260 TFEU, but also, potentially, by the European Council and Council under Article 7 TEU.

There is already discussion of legal action in the UK on the basis of the conduct of the referendum campaign, and over the constitutionality of any decision to pull the Article 50 trigger.[8] Such litigation is likely to raise questions relating to the interpretation of EU law (most obviously, in relation to the interpretation of Article 50, perhaps based on the points discussed above), which the UK courts may decide to refer to the Court of Justice. At each stage of the process, legal action is possible – for example in relation to the conduct of the negotiations, and of course, in relation to the scope and substantive content of the withdrawal agreement(s).

This paper suggests that, in order to avoid the risk of litigation, the rules of the process should be clarified via the guidelines to be provided by the European Council. So as to be able to fulfil this function, the guidelines must be provided prior to any decision by the UK to trigger A50, and should provide as much clarity as possible in relation to the key questions discussed above, including in particular in relation to the ability of the UK to rescind the notification process, the scope of the withdrawal agreement(s), the status of the UK during the withdrawal process, and the mechanisms through which the withdrawal agreement(s) may be concluded. It is recommended that the UK government be fully involved in the drawing up of these guidelines. It may, of course, be that agreement is impossible to attain, or that the European Council refuses to provide guidelines before the decision to trigger Article 50. In such circumstances, it may be that there is litigation in relation to the Article 50 process, with courts playing a key role in shaping the process of withdrawal.

A suggested way forward

It hardly needs to be said that this is a crisis situation for the European Union. The prospect of the withdrawal of the UK from the EU is fraught with economic and political risk. Article 50 is intended to provide for the orderly exit of States from the Union. Whether or not this goal is achieved will largely depend on the conduct of the withdrawing State and the process of negotiation. Nevertheless, the legal framework in which the negotiations take place is also significant, as it determines the parameters within which the range of political actors involved will frame their strategies. The text of Article 50 provides very few answers. Nevertheless it envisages the provision of guidelines by the European Council. These may operate as the vehicle through which the answers to the legal questions identified in this paper are developed. In order to be able to play this role, they should, in the wake of the referendum outcome, be provided in advance of any decision by the UK to trigger Article 50. And, to the extent that this is possible, they should, notwithstanding the wording of Article 50(4), be agreed in negotiation with the UK, in order to minimise the risk of what may prove to be complex litigation, across more than one jurisdiction, in relation to the conduct of the withdrawal process.

I have argued above for Article 50 to be interpreted in a way which ensures that the UK is best able to maintain a working relationship with the UK, and achieve a settlement in which the interests of citizens of the EU are best protected. This suggests that the European Council guidelines should provide not only for a withdrawal agreement, but also for an agreement which defines the future relationship between the UK and the EU. To the extent that this objective is not achievable within two years, the European Council should commit to extending the time period. Most importantly, it should be made clear it is possible for the UK to rescind its notification, together with any procedural steps to be taken in order to stop the process.

Once there is more clarity, the UK will be able to consider its response. The calls to refuse to pull the Article 50 trigger are increasing, with legal efforts within the UK directed to imposing pressure on Parliament, either as a result of the conduct of the referendum campaign, or a result of the rights affected by the withdrawal process, not to trigger Article 50. While this option might be constitutional as a matter of UK law, it would carry with it a multitude of social risks, furthering poisoning relationships between the political elite and the people, who may feel that the result of the referendum has been ignored.[9]

It would be far better for Parliament to accede to the will of the people, and trigger Article 50; but only once the Article 50 process has been clarified; and it is argued here that this should be via European Council guidelines relating to the process of negotiation. Parliament has a role in scrutinising these guidelines, and in providing full guidance to the government and the people in relation to the substantive content and scope of the negotiations, the negotiation timetable, and the steps to be taken in relation to the conclusion and ratification of the resulting agreement(s).

As has been argued above, it should be made clear that it is possible for the UK to rescind the Article 50 notification. The European Council should commit to negotiations with the UK in relation not only to a narrow withdrawal agreement, but also to a broader agreement on the future relationship between the UK and the EU. It is only if these two conditions are met – and it may be possible for the UK to exert not only political but also legal pressure on the European Council in relation to the content of the guidelines – that it is possible to envisage a legitimate outcome to this crisis.

The clarification of the uncertainty surrounding the Article 50 process will enable the UK to make an informed decision in relation to the pulling of the Article 50 trigger. The UK government must then work on its negotiating strategy, and seek to reach an agreement with the EU27 which deals with withdrawal and the future relationship between the UK and the EU. It is only during the process of negotiation that it will become clear what leaving the EU will actually entail. There will, presumably, be a range of difficult decisions, for example in relation to the UK’s desire to control immigration, and to retain access to the single market (and we will all learn a lot about the operation of the EEA, and Switzerland’s relationship with the EU); and about the acquired rights of EU citizens in the UK, and UK citizens in the EU. In the time period in which negotiations will occur, there will no doubt be significant economic and political change within both the EU and the UK. Towards the end of the negotiation period, it will be possible for the UK to make an informed choice; either a) to rescind its notification and remain within the EU, b) to accept the negotiated deal, or c) to exit the EU without a deal. That decision will be for the UK, in accordance with its constitutional requirements. Parliament will of course be involved, and consideration will no doubt be given to allowing the people to have a further say, either via a general election or indeed a second referendum.

The process of withdrawal is not going to be easy. The EU law framework surrounding the operation is very unclear, with the provision of guidelines by the European Council representing a key moment in which it is possible to contribute towards the legitimacy of that process. This paper offers a number of recommendations. It is to be hoped that it prompts careful consideration of the options ahead, so that it is possible to arrive at a legitimate outcome, in which the interests of citizens of the EU are, as far as possible protected.

[1] Nationals of the withdrawing State will, in principle, retain their positions in the EU institutions pending the entry into force of the withdrawal agreement. It is interesting in this regard that there seem to be no plans to replace Lord Hill, the UK Commissioner who resigned in the wake of the referendum result.

[2] It should noted that there may be complications in relation to the enforcement of EU law against the withdrawing Member State; whether before the Court of Justice, under Article 258-260, or before the national courts. See further below.

[3] House of Lords European Committee Report, n7 above at [58].

[4] It seems that Estonia, due to hold the Presidency in the first half of 2018, will assume the Presidency in the second half of 2017; see

[5] See Hillion, n4 above at 139-40.

[6] On the possibility of a turf war between the EU institutions, see Duff, n4 above.

[7] See Lazowski, n4 above at 528.

[8] See and  

[9] See also R Ekins, ‘The Legitimacy of the Brexit Referendum’, UK Constitutional Law Association Blog, available at

What next? An analysis of the EU law questions surrounding Article 50 TEU: Part One

Dr Philip Syrpis

On June 23, the UK voted by a margin of 52% to 48% to leave the EU.[1] Within hours of the result, significant questions, which hardly surfaced during the long campaign, about the process of withdrawal and the possible terms on which it might take place began to emerge. The majority of these are political; as developments within both the Conservative and Labour parties amply testify. But many are legal. Much attention has, quite rightly, focused on questions of UK constitutional law – with lively debate about the status of referendums, the relationship between Parliament and the royal prerogative, and the role of the Scottish Parliament and Northern Irish Assembly. EU law has also been discussed, with Article 50 TEU, the provision introduced in the Treaty of Lisbon enabling a Member State to withdraw from the EU, being the principal focus.

In this short paper, I offer a tentative analysis of the EU law questions surrounding withdrawal from the EU; focusing on the interpretation and application of Article 50 TEU. The text of Article 50 contains a number of ambiguities, and the answers to many of the legal questions which arise are shrouded in uncertainty. This uncertainty contributes towards the volatility of the current situation, damaging the European economy. I offer some thoughts on the mechanisms through which answers might emerge. Throughout, I suggest possible answers to the legal questions. These are informed by the current political context, and are designed to ensure that the withdrawal process produces an outcome which is legitimate from the perspectives of both the UK and the EU.[2]

At the outset, it is worth emphasising two important points, which might otherwise be obscured.

First, it is all too easy in this context, as I have above, to refer to ‘the UK’ and ‘the EU’. This leads to the belief that both are monolithic entities with set objectives, one ranged against the other as the withdrawal process begins. This is of course not the case. The referendum has made it clear that the UK is a divided nation. England and Wales voted to leave, while Scotland and Northern Ireland voted to remain. There are also painful divisions between urban and rural areas, and the young and the old. Leave campaigners were not forced to, and (at least insofar as their objective was to win the referendum, sensibly) did not choose to articulate a clear vision of the future relationship between the UK and the EU. As a result, the referendum does not offer a clear mandate to the UK government, or to Parliament, which it might use to guide it in withdrawal negotiations. The EU is also divided. The EU institutions, and the governments of the Member States did not want ‘Brexit’, and cannot be expected to be united in their response. Many governments have trade interests which they want to protect. Others see economic opportunities in adopting a harder line against an always reluctant partner. All have an eye on the domestic political context. It is not immediately obvious what sort of deal with the UK best serves the ‘EU interest’.

Second, the legal analysis presented here is, as stated above, tentative. This paper is written in the immediate aftermath of the UK’s vote to leave the EU. I have little doubt that various elements of the legal argumentation can (and hopefully will) be further developed. It is also inevitable that some of the analysis presented here will be overtaken by events, and that much may in the end depend on the resolution to questions not posed here. There is nevertheless, I hope, some utility in producing this analysis at this stage, with the explicit aim of informing the debate among the key actors involved in the Brexit negotiations in this key period before the positions of the European institutions and the governments of the Member States begin to crystallise.

The Article 50 TEU process

The Treaty of Lisbon, via Article 50 TEU, introduced a specific EU law mechanism through which States may withdraw from the European Union. One searches in vain for an analysis of the provision in the main EU law textbooks. The origins of the provision lie in the draft Article I-60 of the Treaty establishing a Constitution for Europe.[3] As such, Article 50 is ‘an integral part of the EU constitutional(izing) package, rather than an element of the de-constitutionalization course instigated by the 2007 Intergovernmental Conference, following the rejection of the Constitutional Treaty’.[4] It has not been used, or tested.[5] In the context of the referendum in the UK, the Article was analysed in detail by the UK Government,[6] and the House of Lords European Committee,[7] and the European Parliament.[8] In the days following the vote in favour of leaving the EU, the Houses of Parliament have produced further reports,[9] and the withdrawal procedure has been the focus of much analysis and speculation.[10]

As Hillion says, ‘a common critique in the literature is that the procedure of Article 50 is formulated in an ‘incomplete’, ‘unclear’, if not ‘cryptic’ fashion, thus generating ‘uncertainty’’.[11] As will become clear below, the text of the provision does not provide answers to many of the key legal questions. Were the interpretation of the Article to come before the Court of Justice, and there is some discussion below of the circumstances in which this may occur, it could therefore be expected to apply a flexible purposive approach.[12] Hillion argues, and some may find this rather paradoxical, that Article 50 has a specific function in relation to the integration process in that it ‘bolsters the normative basis for a negotiated withdrawal’ and ‘points towards a strong post-withdrawal engagement by the Union with the former Member State’.[13] My analysis below builds on this approach, seeking to interpret the provision in the context of the current situation in a way which ensures that the UK is best able to maintain a working relationship with the EU, and achieves a settlement in which the interests of citizens of the EU are, as far as possible, protected. Any other approach, such as one, for example, based on the safeguarding of the interests of the EU27 at the expense of the interests of the withdrawing State, should be rejected.

Article 50 provides that a Member State ‘may decide to withdraw from the Union in accordance with its own constitutional requirements’. It ‘shall notify the European Council of its intention’. A process of negotiation ensues, ‘in the light of the guidelines provided by the European Council’. Paragraph 3 makes it clear that 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’, ‘unless the European Council, in agreement with the State concerned, unanimously decides to extend this period’. Thus, the withdrawing state remains a full member of the EU until the process has run its course, though paragraph 4 does provide that ‘for the purposes of paragraph 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it’. Finally, paragraph 5 states that ‘if a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49’; that is the normal accession procedure.

The operation of Article 50 raises a number of difficult legal questions. In the sections below, this paper considers 1) whether it is possible to withdraw from the EU without using the Article 50 process; 2) who makes the decision to trigger Article 50; 3) whether there should be informal negotiations prior to the triggering of Article 50; 4) whether it is possible to rescind an Article 50 notification, or otherwise stop the withdrawal process; 5) the scope of the withdrawal negotiations; 6) the extension of the two-year time period; 7) the status and likely influence of the UK during the negotiation process; and 8) the conclusion of the withdrawal agreement. It then considers the ways in which any disagreements as to the operation of Article 50 may be resolved; before concluding with an analysis of way in which the EU law might be developed in such a way as to ensure that a legitimate outcome will emerge.

1. Is it possible to withdraw from the EU without using Article 50?

Prior to the Treaty of Lisbon, there was academic debate over whether it was even possible to withdraw from the European Union or Community, given the commitment to ‘ever closer union’ in the Treaties, and the ‘unlimited’ duration of the enterprise.[14] It seems clear that withdrawal must always have been legally possible;[15] in the absence of specific EU law provisions, withdrawal would take place under public international law rules, in particular the rules established in the Vienna Convention on the Law of Treaties.[16] The inclusion of Article 50 in the Treaties in 2009 ‘reflects the intention to submit [withdrawal] to the canons of the EU legal order, instead of leaving it to the vicissitudes of international law’,[17] and to establish a withdrawal process which is able to lead to an orderly exit from the EU, in which levels of disruption and uncertainty are minimised. In the operation of Article 50, these objectives should be borne in mind.

Within the domestic debate there has been discussion of whether there are alternatives to Article 50. There have been suggestions, in particular among leave campaigners,[18] to the effect that it would be possible to effectuate withdrawal via repeal of the European Communities Act 1972, and thereby reclaiming the ability to legislate domestically free from EU law constraints. This would open up the possibility for legal action to be brought against the UK, under EU and international law.[19] The House of Lords in May 2016 stated that Article 50 provides the only means of withdrawing from the EU consistent with the UK’s obligations under international law: ‘A Member State could not fall back on the Vienna Convention on the Law of Treaties to avoid the withdrawal procedures in Article 50, because the Vienna Convention had to be read in the light of the specific procedures for treaty change laid down in the EU Treaties’.[20] As opinion in the UK has quickly coalesced around the proposition that withdrawal will be pursued via the Article 50 route, the rival arguments are not considered further here

2. Who makes the decision to trigger Article 50?

The decision to trigger Article 50 is said to be for the withdrawing state, ‘in accordance with its constitutional requirements’. The EU institutions, including the governments of the EU27, cannot impose legal pressure on the withdrawing State; though of course they may be able to exert some political pressure,[21] seeking, for example, to ensure that the economic and political uncertainty following the UK’s vote on 23 June is minimised. As a matter of UK constitutional law, it is clear that the referendum only has advisory status.[22] There have been debates within the UK about the extent to which the decision to trigger Article 50 is for the Prime Minister, acting under prerogative powers,[23] or for Parliament;[24] and also questions about the extent to which the Scottish Parliament may be able to influence, or perhaps even veto, any decision to pull the Article 50 trigger.[25] To the extent that the decision to trigger Article leads inexorably to a process through which the UK withdraws from the EU, with a resultant effect on a range of legal rights, protected by virtue of EU law and the operation of the European Communities Act 1972, it seems as though the approval of Parliament is required.[26] And, it is certainly legally possible that, notwithstanding the referendum result, Parliament might decide not to trigger Article 50.[27]

While the EU institutions cannot impose legal pressure on a State to trigger Article 50, the process of withdrawal is governed by EU law. A notification for the purposes of Article 50, should only be treated as a notification if it is made according to the conditions laid down in Article 50. Thus, where a notification is presented to the European Council, it should ensure its admissibility. As discussed below, it may be possible for questions relating to the validity of any notification to come before the courts. However, given that the only substantive condition relating to the notification of the intention to withdraw relates to compliance with domestic constitutional requirements, it is to be anticipated that, in any case before it, the European Court of Justice will tread carefully.[28] As far as possible, it should leave questions of national constitutional law to be determined within the Member State.

3. Should there be informal negotiations before Article 50 is triggered?

The Article 50 process, to the extent that it is outlined in the Treaties, only begins once a valid notification has reached the European Council. As such, it seems that questions relating to whether there may or may not be informal negotiations between the withdrawing state and the EU institutions relating to the withdrawal process are to be determined in the political rather than the legal realm.[29]

The legal position is also unclear in relation to when the ‘guidelines provided by the European Council’, in the light of which the Union is to negotiate and conclude an agreement with the withdrawing state, are to be adopted, or what their scope might be. By virtue of paragraph 4, it is said that the withdrawing state shall not participate in the discussions in the European Council ‘for the purposes of paragraph 2 and 3’ or ‘in decisions concerning it’.

In this paper, it is argued that these guidelines are likely to assume much importance, in particular in relation to the current situation, in which Article 50 may be triggered for the first time. It is suggested that it is important that agreement is reached between the European Council and the UK, in relation to full details of the withdrawal process, the scope of a withdrawal deal, and the mechanisms through which the deal will be concluded and ratified; and crucially, that this should occur before the decision to trigger Article 50. The legitimacy of withdrawal process will be enhanced to the extent that the UK Government is as fully aware as possible of the consequences entailed by triggering Article 50, and is able to secure informed constitutional consent for embarking on the withdrawal process.[30] Thus, it is to be hoped that the European Council, in the wake of the referendum result, and before any decision to trigger Article 50, is working on the preparation of these guidelines, and is consulting with representatives of the UK in relation to their content. If the EU institutions are unwilling to provide guidelines, the UK government should apply whatever legal and political pressure it is able to muster in order to obtain clarification from the EU institutions in relation to the conduct of the withdrawal process; making it clear that the levels of uncertainty over the process of withdrawal are likely to delay the decision to trigger Article 50.

4. Is it possible to rescind an Article 50 notification or otherwise stop the process?

Perhaps the most fundamental question to which a legal answer is required is whether it is possible for the withdrawing State, having notified its intention to withdraw, to rescind or revoke the notification, or, in any other way end the withdrawal process. Article 50 does not explicitly contemplate this possibility, but neither does it explicitly rule it out. There has been very little academic comment on this issue, but given the uncertainties surrounding the way in which the UK Government might seek to act following the referendum, it is an urgent question. Paragraph 4 indicates only that 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… unless the European Council, in agreement with the State concerned, unanimously decides to extend this period’. That may be read as meaning that once the trigger is pulled, the inexorable outcome is either withdrawal from the EU on the basis of the negotiated deal, or, in the event that a deal is not agreed within the two year period and there is no unanimous agreement to extend it, a default ‘no deal’ position, in which the UK’s relationship with the EU is governed by standard WTO rules. However, if it is possible to read in the option for the withdrawing Member State to ‘stop the clock’, it may be that there is a third possible outcome: a decision, taken within the two-year negotiating period, to rescind or revoke the notification and remain within the EU.

The clearest statements on this point were made in the evidence presented to the House of Lords in February 2016. Sir David Edward and Sir Derrick Wyatt QC were clear that it is possible to reverse a decision to withdraw at any point before the date on which the withdrawal agreement takes effect. In the words of Professor Wyatt:

“There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a State withdraws, it has to apply to rejoin de novo. That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind.”[31]

Other commentators take a different view. Barber, Hickman and King, for example, proceed on the basis that the Article 50 process is irreversible; ‘there is no turning back once Article 50 has been invoked. If no acceptable withdrawal agreement has been reached within two years, the exiting Member State is left without any deal with the EU’. They conclude that the UK ‘could not safely assume that it is entitled to withdraw its notification on the basis of the terms of Article 50’.[32]

The Treaty of Lisbon appears to have been drafted with the assumption that Article 50 would only be triggered, in accordance with constitutional requirements, once a clear consensus had been reached within the withdrawing Member State. Regardless of the arguments now raging in the UK about the authority and legitimacy of the referendum, the responsibility of Parliament, and the role of the Scottish Parliament and Northern Irish Assembly, it seems at the very least possible that the decision by a Member State to withdraw from the EU might be politically contested, and subject to significant internal scrutiny. After all, it is widely anticipated that the negotiation of any withdrawal agreement would take two, or perhaps more years. Within such a time period, political constellations are likely to shift appreciably. It is also, and this is a point to which I return in the final section, only once negotiations with the EU have begun, that the nature of the withdrawing State’s future relationship with the EU, and together with that, the practical consequences of withdrawal, will begin to emerge.

All this militates in favour of a reading of Article 50 which makes it possible for the Member State to revoke a notification.[33] It is, for example, possible to envisage the following scenario. A decision to trigger Article 50 provokes turmoil in a Member State. A general election follows. A decisive majority is attained by parties advocating remaining within the EU. In such circumstances, it seems ludicrous to hold the State to the commitment to negotiate a withdrawal agreement from the EU, and then afford it the opportunity to apply for readmission under Article 49. It is clearly far simpler to allow the withdrawal process to be stopped.

Given the uncertainty here, and the clear link between ascertaining an answer to this question and making the decision to pull the Article 50 trigger, it seems imperative that an answer is found either via the European Council guidelines, or, if necessary, in an action before the Court of Justice to interpret EU law.

5. What is the scope of a withdrawal agreement?

The agreement to be concluded with the withdrawing State, is, according to Article 50(2), to set out ‘the arrangements for withdrawal taking account of the framework for its future relationship with the Union’. This appears to envisage a distinction between the withdrawal agreement (or ‘divorce settlement’), and any future framework, which might be ‘left for a more comprehensive agreement, to be negotiated at a later date’.[34]

Legally, it seems as though even the ‘divorce’ may well require more than one agreement. According to Lazowski, ‘agreements on withdrawal, falling under the category of international Treaties [concluded in accordance with the procedure laid down in Article 218(3) TFEU], cannot amend EU primary legislation but can regulate non-primary law matters only. This implies that alongside an international treaty regulating withdrawal, the remaining Member States will – most likely – have to negotiate between themselves a treaty amending the Founding Treaties in order to repeal all provisions touching on the departing country’.[35]

When one considers the relationship between the divorce agreement and any agreement on the envisaged future relationship between the withdrawing State and the European Union, the picture becomes still murkier. If the aim is to reach agreement between the withdrawing State and the EU within the two year time period, the withdrawal agreement should be limited in scope. If on the other hand, the objective is to set the course for the future relationship, the agreement will of course need to be broader. It is certainly necessary for the withdrawal agreement to ‘bridge the gap’ between the old EU regime and the new future relationship,[36] and to deal with the issues surrounding the acquired rights of individuals and companies which might, over time, be phased out. A ‘catalogue of dossiers would have to be developed’;[37] with due consideration of what can and should be included within the withdrawal agreement, and what is to be determined in other treaties.

In line with the approach adopted throughout this paper, it is argued that these issues should be addressed in the guidelines provided by the European Council, and, as far as possible, agreed with the withdrawing Member State before the decision to pull the Article 50 trigger is made. In the last section, I argue for a broad interpretation of the scope of the withdrawal agreement, so that the contours of the future relationship between the withdrawing State and the EU are known before the end of the notification period.

6. Can the time period be extended?

Article 50(3) provides that the Treaties shall cease to apply to the withdrawing State from the date of entry into force of the withdrawal agreement, or, failing that, two years after the notification ‘unless the European Council, in agreement with the State concerned, unanimously decides to extend this period’.

Thus, it is not clear, even at the date on which Article 50 is triggered, when withdrawal might occur, or indeed on which terms. One possibility, though this seems unlikely, is that the agreement relating to withdrawal is reached swiftly. In this case, the Treaties will cease to apply to the withdrawing State from the date on which the withdrawal agreement enters into force.

If it is not possible to reach a swift agreement, and as the two-year time period comes towards an end, the prospect of a withdrawal without a negotiated agreement will begin to loom large. This would mean exit from the EU without a withdrawal agreement, with no option but to fall back on the trading terms derived from membership of the World Trade Organisation.[38] Transitional arrangements would be handled unilaterally by each side. The view of Sir David Edward is that ‘the long term ghastliness of the legal complications is almost unimaginable.’[39]

It is in the best interests of all, in particular of individuals and companies with acquired rights in the UK and the remainder of the EU27, for exit without an agreed withdrawal deal to be avoided. There are, it seems to me, two ways in which this may be accomplished.

First, Article 50 expressly provides for the two year time period to be extended, but only on the basis of the unanimous agreement of all States. That agreement cannot be guaranteed; and at this stage it is impossible to speculate about the likely pressures within various Member States which may affect the decisions of their governments about whether to agree to an extension of the negotiations. Thus, it seems that this is possible, but politically very uncertain. In relation to the extension of the time period, there is also what I take to be a mischievous suggestion by O’Dell that the negotiated period could, with the agreement of all, be extended indefinitely, with the result that withdrawal cannot take place.[40]

Second, if, as argued in this paper, it is possible to revoke the Article 50 notification, it becomes possible for the withdrawing State to make a unilateral decision to avoid the prospect of a disorderly exit, and to remain within the EU. The ramifications of this are considered more fully in the second part of this post.

The author would like to thank Albert Sanchez-Graells, and the many other friends and colleagues with whom he has been discussing Article 50 since June 23.

[1] See

[2] In this paper I do not engage with the literature on legitimacy; though it would be interesting to develop a more overtly theoretical approach. The core concern is with the social and normative acceptability of the withdrawal process, in both the UK and the EU.

[3] OJ C 169/1 [2003].

[4] See C Hillion, ‘Accession and Withdrawal in the Law of the European Union’ in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (OUP, 2015) 126 at 149. See also A Lazowski, ‘Withdrawal from the European Union and Alternatives to Membership’ (2012) 37 ELRev 523. Hillion references the scholarly scrutiny the provision has received at note 46.

[5] There is some discussion of Article 50 in Re Ratification of the Treaty of Lisbon [2010] 3 CMLR 13, before the German Constitutional Court at [305]-[306]; and in Re Ratification of the Lisbon Treaty [2010] 1 CMLR 42, before the Latvian Supreme Court. It was also referred to in the High Court in the UK in Shindler [2016] EWHC 957 (Admin).

[6] HM Government, ‘The Process for Withdrawing from the European Union’, Cm 9216, February 2016, available at

[7] House of Lords European Committee, 11th Report of Session 2015-16, ‘The Process of Withdrawing from the European Union’, May 2016, available at

[8] European Parliament Briefing, ‘Article 50: Withdrawal of a Member State from the EU’, February 2016, available at

[9] House of Commons Briefing Paper Number 7551, ‘Brexit: How does the Article 50 process work?’, 30 June 2016; House of Lords Library Note, ‘Leaving the EU: Parliament’s Role in the Process’, 30 June 2016.

[10] See for example: A Renwick, ‘The Road to Brexit: 16 Things You Need to Know about the Process of Leaving the EU’, The Constitution Unit, available at, N Barber, T Hickman and J King, ‘Pulling the Article 50 ‘trigger’: Parliament’s Indispensable Role’, UK Constitutional Law Association Blog, available at, K Armstrong, ‘Push Me, Pull You, Whose Hand on the Article 50 trigger’, UK Constitutional Law Association Blog, available at:, S Douglas-Scott, ‘Brexit, The Referendum and the UK Parliament: Some Questions about Sovereignty’, UK Constitutional Law Association Blog, available at, E O’Dell, ‘Would it fly? A possible Article 50 route to a second referendum’, available at, A Duff, ‘Everything you need to know about Article 50 (but were afraid to ask)’, available at, A Georgopoulos, ‘’Brexit’, Article 50 and the Constitutional Significance of the UK Referendum’, available at, ‘S Peers, ‘Article 50: Can the UK force the pace of Brexit’, The Conversation, available at, P Syrpis, ‘Once the UK triggers Article 50 to start Brexit, can it turn back?’, The Conversation, available at

[11] Hillion, n4 above at 135.

[12] See G Conway, The Limits of Legal Reasoning and the European Court of Justice (2014, CUP).

[13] Hillion, n4 above at 150-51.

[14] See Case 6/64 Costa v ENEL [1964] ECR 585.

[15] See also Lazowski, n4 above at 525: ‘it is widely accepted that that lack of an exit clause does not preclude the possibility of withdrawal from an international organisation’. In relation to the EU, withdrawal has been contemplated at various times in various states; in particular in the UK, which held a referendum in 1975 on whether the UK should stay in the European Community (Common Market). In relation to the ‘idiosyncratic’ situation of Greenland, see F Harhoff, ‘Greenland’s Withdrawal from the European Communities’ (1983) 20 CMLRev 13.

[16] See also re Secession of Quebec [1998] 2 SC 217, before the Canadian Supreme Court.

[17] Hillion, n4 above at 149.

[18] See eg

[19] See also Duff, n10 above.

[20] House of Lords European Committee Report, n7 above at [9].

[21] See eg: and

[22] See European Union Referendum Act 2015; discussed in Douglas Scott, n9 above.

[23] See

[24] See eg:

[25] See Scottish Parliament European and External Relations Committee, SP Paper 978, 16 March 2016,

[26] See e.g. David Pannick in The Times,; and Barber, Hickman and King, n9 above.

[27] See e.g. AC Grayling,

[28] See by analogy the case law relating to Article 4(2) TEU, discussed in A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 CMLRev 1471.

[29] The ‘EU side’ appears, publically at least, to be refusing to open informal negotiations with the UK until the decision to trigger Article 50 is made. See

[30] It is certainly possible to finesse any legal objections to the participation of the UK in the process of drawing up the European Council guidelines, notwithstanding the wording of Article 50(4). One can argue that the guidelines are a necessary precursor to the commencement of the withdrawal process; and that prior to the triggering of the Article 50, the UK remains a full member of the European Council.

[31] House of Lords European Committee Report, n7 above at [10].

[32] Barber, Hickman and King, n10 above. See also European Parliament Briefing, n8 above, which states that ‘most commentators’ argue that it is impossible, or at least doubtful from a legal point of view, to unilaterally revoke an Article 50 notification.

[33] See Duff, n10 above: ‘Within that two year period – for instance, following a British general election and change of government or, less likely, after a second referendum ‑ it would be perfectly possible for the UK to revoke its decision to quit. That Article 50 is silent on the matter of revocation does not mean that a change of direction would be illegal under EU law (as long as the CJEU were convinced that the switch was constitutional). The EU is well practised in the art of the stopped clock. Given the collateral damage done to the remaining EU by Brexit, a notification that London had changed its mind would be met with very great, if somewhat exasperated relief.’

[34] Hillion, n4 above at 140.

[35] Lazowski, n4 above at 529.

[36] House of Lords European Committee Report, n7 above at [25]. See also [31]: Coordination between the withdrawal treaty on the one hand and the future relations treaty on the other would be important. The UK’s aim would be to have a smooth transition between the past in the EU and the future in the new arrangement.

[37] Ibid at 529-33.

[38] Note however that even this option may not be straightforward, and will require agreement within the WTO. See

[39] House of Lords European Committee Report, n7 above at [49].

[40] See

Brexit: The Devolution Dimension

Jo Murkens

The results of the third nation-wide referendum in the United Kingdom are still sinking in at home and around the world. Just below 52% voted to leave the European Union, just over 48% voted to remain. The widespread conclusion is that the UK must leave the EU.

But there is another way of reading the result. The United Kingdom is not a centralised state. It is a ‘family of nations’. There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing. England and Wales voted to leave, but Scotland and Northern Ireland voted to remain. Recognising that split is not a matter of shifting the goalposts after the fact. It is about respecting an established, indeed a compelling constitutional order.

Before Westminster politicians think about the practicalities of withdrawing from the EU, they urgently need to address the constitutional consequences. What is the overriding objective? To give legal effect to the will of the UK electorate as expressed in an advisory referendum? Or to preserve the United Kingdom, which is split 2:2?

The strongest case against EU withdrawal is that it is not in the UK’s interest. On that view, an overriding state interest is invoked not to disregard the will of the people, but to recognise that the result divides the constituent parts of the United Kingdom. Abrogation of the Scottish and Northern Irish results would violate the principle of formal co-equality among the four British nations. That stance almost eagerly invites Irish republicans to re-unify Ireland and Scottish nationalists to launch a second independence referendum.

Of course, if the overriding objective is to give legal effect to the overall numerical tally and withdraw from the EU, then the Westminster Parliament must first overcome several obstacles before it can dedicate itself completely to the Brexit negotiations. It must repeal the European Communities Act 1972 by which it became a member state. It must also amend the devolution legislation for Scotland and Northern Ireland. EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. Section 29(2)(d) of the Scotland Act 1998, for example, provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. A similar provision, section 6(2)(d), appears in the Northern Ireland Act 1998. Indeed, the status of the UK and Ireland as EU member states and signatories to the European Convention on Human Rights was fundamental to the negotiation of the Belfast or ‘Good Friday’ Agreement.

Amending the devolution legislation would be technically easy, but politically hazardous. It would add fuel to the fire stoked up by Scottish demands for independence. It would place ‘a bomb under the Irish peace process’. If Westminster is serious about Brexit it will have to terminate the devolution settlement it has so carefully crafted since before 1997. There is no way for Westminster to avoid negotiating with Edinburgh, Cardiff and Belfast in addition to Brussels, and there is no way for the UK as a whole to survive this process intact.

The integration of the devolved nations within the UK’s constitutional framework means that their consent needs to be sought. The 62% of voters in Scotland, and the 55.8% in Northern Ireland, who voted to remain EU members have turned their nations into veto powers. If either declines, the UK as a whole cannot proceed with Brexit negotiations in any constitutionally plausible way.

The United Kingdom is no longer a centralised state, if it ever was. The devolution arrangements have changed the UK’s constitutional settlement. The old Westminster axis of power has become diffuse through power-sharing agreements with Edinburgh, Cardiff, and Belfast. People who voted Leave may ‘want their country back’, but their country has transformed over the last twenty years.

Under the current arrangements it would be perfectly possible for the family of four nations, acting collectively, to withdraw from the European Union. However, in the absence of unanimity and with awareness of a very delicate situation in Scotland and Northern Ireland, the next Prime Minister and the Westminster Parliament should not divert all political resources to make this purely advisory referendum legally binding. They must channel all resources to keep the Kingdom whole.

Jo Eric Khushal Murkens is an Associate Professor at the Department of Law of the London School of Economics and Political Science (LSE).

(Suggested citation: J. Murkens, ‘Brexit: The Devolution Dimension’, U.K. Const. L. Blog (28th Jun 2016) (available at

This piece was originally published on the UK Constitutional Law Association website and is republished here with kind permission.

England’s Difficulty; Scotland’s Opportunity

Aidan O’Neill QC (Scot)

The result of Brexit referendum has revealed certain difficult truths about our nation.    England is an unhappy country.  The vote shows that the English are politically riven in terms of class, educational level, age, and (non-) metropolitan status.  It has revealed what was for so long obvious; that London is not in, or of, England.  It is an international(ist) city- state whose politics and economy and outlook are wholly different from the nation whose capital it nominally is.   And Scotland is another country; they do things differently there.

One thing is clear, however:  the result of the referendum has to be respected and acted upon by all our politicians.    That is what living in a democracy means.    So let us end this talk of a second Brexit referendum, or these calls on our MPs to refuse to implement the will of the people on the Brechtian grounds (in his poem Die Lösung) that “the people has forfeited the confidence of the government”.

Brecht’s poem concludes “ would it not be easier in that case for the government to dissolve the people and elect another?”.     But it seems to me that the result of the Brexit referendum has done exactly that.     It has revealed that there is not one demos, one people, within the United Kingdom.  There are instead peoples, demoi.  The British people has been dissolved.

The referendum has revealed radically different visions about our European future and place in the world between Scotland (and Northern Ireland) on the one hand, and England and Wales (excluding London) on the other.   Respecting democracy on this basis means respecting the decision of the people of England and Wales no longer to be citizens of a member State of the European Union.   Equally, however, respect for democracy means honouring the expressed wish of the people of Scotland (and Northern Ireland) to remain as full participant citizens in the supranational polity that is the EU.

So rather than arguing over when and how Article 50 TEU might be activated and by whom, or whether the two year clock ticking for exit can be stopped once started, we need as responsible citizens in a democracy to face up in good faith to what many of us regard as an appalling result, and coalesce around pressing for the quickest possible conclusion of the least worst option which still respects the actual referendum result.

The Brexit referendum has given no mandate or guidance as to what our future relationship might be with Europe.  The best and cleanest way to respect the referendum result (both in the fact that a majority voted to leave the EU but that a large minority voted for no change) would be to seek the minimum possible change compatible with the UK no longer being a Member State.  This minimal change means, in my view, joining Norway, Iceland and Liechtenstein in the European Economic Area (EEA).   The EEA Agreement was concluded in 1993 and looks remarkably like the Treaty of Rome prior to its amendment by the 1992 Maastricht Treaty, which first brought Tory Euro-scepticism to the fore.  Article 1 EEA states

  1. The aim of this Agreement of association is to promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area, hereinafter referred to as the EEA.
  2. In order to attain the objectives set out in paragraph 1, the association shall entail, in accordance with the provisions of this Agreement :

(a) the free movement of goods;

(b) the free movement of persons;

(c) the free movement of services;

(d) the free movement of capital;

(e) the setting up of a system ensuring that competition is not distorted and that the rules thereon are equally respected; as well as

(f) closer cooperation in other fields, such as research and development, the environment, education and social policy.

The case law of the Court of Justice on those provisions of the EU Treaties and secondary EU legislation which are “identical in substance to corresponding rules” of the EEA Agreement are binding, but only up until the date of the signature of the original EEA Agreement: Article 6 EEA.   What this means is that the acquis communautaire of the Court of Justice prior to the development of EU citizenship rights binds, but that the CJEU has no general continuing jurisdiction in relation to the interpretation of the EEA Agreement.

The EEA States have their own institutions to police the EEA Agreement: instead of the Commission there is the EFTA Surveillance Authority; instead of the CJEU there is the EFTA Court; and there is no role for the European Parliament.   There is provision for inter-governmental co-operation with the EU in the form of the EEA Council (which consists of the members of the EU Council and members of the European Commission, and of one member of the Government of each of the EEA States) and the EEA Joint Committee (which consist of representatives of the Contracting Parties and which take decisions by agreement between the EU, on the one hand, and the EEA States “speaking with one voice” on the other”).

England’s current difficulty is that it has no leader, a fundamentally divided populace and no mandate as to what any future relationship might be sought from the EU.   Given that membership of the EEA guarantees free movement of workers and the self-employed it might be thought to go against the anti-migration sentiments which appeared to have fuelled much of the vote in favour Brexit south of the Border.

Scotland, however, has a First Minister who is undoubtedly in charge of her party, a population which was remarkably united in the referendum, and a clear mandate from the referendum to the effect that Scotland wants to stay in the EU.

In the next three months or so while the Tory party seeks a new leader and England goes into meltdown in trying to gauge what so ailed the country, Nicola Sturgeon has an opportunity now to forge strong positive links across Europe and among the big players within the EU institutions to push the idea that what has happened is not that the UK as a whole has voted to leave the EU but that England and Wales voted to secede from the Union (both British and European) leaving Scotland (possibly in confederation with Northern Ireland) as the faithful remnant ready and able to maintain their EU membership which needs only to be slightly re-jigged, but not fundamentally altered, to take account of England’s and Wales’ secessions.

Ultimately, if Scotland does persuade the rest of the EU round on this, and Nicola Sturgeon can negotiate a package in principle for Scotland (whether or not with Northern Ireland) being regarded as the continuing UK for EU law purposes, then she can present this package to the Scottish people to be voted on in the second Scottish Independence Referendum (the Scotland Act 1998 would have to be amended by Westminster to allow this to take place lawfully, rather than by UDI).    If she wins that referendum, Scotland gets a soft transition involving ending the British Union but maintaining the European Union, while England is left to wrestle its nationalist demons unencumbered by its northern Celtic fringe of which it knew increasingly little and cared ever less.

Interestingly Article 121(a) EEA states that

The provisions of this Agreement shall not preclude cooperation :  (a) within the framework of the Nordic cooperation to the extent that such cooperation does not impair the good functioning of this Agreement.

The Helsinki Treaty of 1962 states in its preamble that “the Governments of Denmark, Finland, Iceland, Norway and Sweden, desir[e] to promote and strengthen the close ties existing between the Nordic peoples in matters of culture, and of legal and social philosophy, and to extend the scale of co-operation between the Nordic countries; [and] desir[e] to attain uniformity of regulation throughout the Nordic countries in as many respects as possible.”  Its terms were most recently updated at 1995 and now contain the following provisions, among others, on Nordic co-operation:

Article 1

The High Contracting Parties shall endeavour to maintain and develop further co-operation between the Nordic countries in the legal, cultural, social and  economic fields, as well as in those of transport and communications and environmental protection.  The High Contracting Parties should hold joint consultations on matters of common interest which are dealt with by European and other international organisations and conferences.

Legal Co-operation

Article 2

In the drafting of laws and regulations in any of the Nordic countries, citizens of all the other Nordic countries shall be treated equally with the citizens of the aforementioned country. This shall apply within all those areas falling within the jurisdiction of the Treaty of Co-operation.

Exceptions to the first paragraph may, however, be made if a requirement of citizenship is constitutionally stipulated, or is necessary because of other international obligations or is otherwise deemed necessary for particular reasons.

Article 3

The High Contracting Parties shall endeavour to facilitate the acquisition by citizens of one Nordic country of citizenship in another Nordic country.

Article 4

The High Contracting Parties shall continue their co-operation in the field of law with the aim of attaining the greatest possible uniformity in the field of private law.

Article 5

The High Contracting Parties should seek to establish uniform rules relating to criminal offences and the penalties for such offences.

With regard to criminal offences committed in one of the Nordic countries, it shall, as far as circumstances allow, be possible to investigate and prosecute the offence in another Nordic country.

Article 6

The High Contracting Parties shall seek to achieve a co-ordination of legislation in such areas, other than the aforementioned, as are considered appropriate.

Article 7

Each High Contracting Party should endeavour to ensure the implementation of regulations to allow decisions by a court of law or other public authority in another Nordic country to be executed also in the territory of the said Party.

If England and Wales were to join the EEA but Scotland (and possibly also Northern Ireland) were to remain within the EU, the Nordic co-operation agreement could also provide a useful template for a co-operation agreement to determine future relations between the now independent countries of the former British Isles (or the Anglo-Celtic Archipelago (ACA), as it might usefully henceforth be termed given the need for Ireland’s full participation within it).  On this model, the analogue to Norway within the ACA is England and Wales; Northern Ireland may be seen to be a parallel Iceland; Scotland would map on to Sweden, and the Republic of Ireland to Finland.

This then becomes a positive story from an EU perspective, showing that the Brexit vote result was not because there are fundamental problems with the EU, but because there are fundamental problems with England which may be summed up as “England has a problem with London, and London a problem with England”.   But the Brexit referendum results are respected, with England and Wales joining the EEA and Scotland and Northern Ireland staying within the EU.

Ultimately it could well be in England’s interest to have Scotland remain in the EU to argue by proxy its case and protect our common island interests from within the EU.    The fundamental change in relationship between Scotland and England – which might also  involve Scotland gaining a veto on any future free trade/investment treaties (“mixed agreements”) concluded between the EU and non-EU countries  such as the prospective new independent state of England and Wales- might be good for us all.

Conrad Russell once observed that the fundamental problem with the Treaty of Union was that England would brook no equal and Scotland no superior.   If Scotland stays in the EU then, like, Ireland it might begin to grow up and de-infantilise and lose its readiness to play the exploited victim.  And England will at last, guilt free, get to be England. The English will truly get their country back, whatever that might turn out to be.

Post-Referendum Reaction – The UK Votes to Leave

Dr Iyiola Solanke

I find it hard to find anything positive to say. For me, the reason for the referendum was absurd – it is already clear that it came into being because of an internal division between members of the Conservative Party. Also, the level of the debate is embarrassing – over the last few weeks I have often wondered if I am in a national playground rather than engaged in a discussion on the future of the United Kingdom.

We voted to leave. Brexit can be seen as the consequence of decades of our leaders first, ignoring the desires of the British public and second, the deliberate miseducation of the British public.

The British public have been treated like children by political leaders for decades. The popular voice has recently been raised and ignored on a range of issues from the decision to go to war in Iraq to fees for university education. This is the backdrop to the rejection of expertise across the political spectrum – why listen to ‘them’ if they do not listen to us? The referendum is a chance to force leaders of all political stripes to listen and the chance to make a difference – even if it is a difference that will be to long term disadvantage. The temptation to do the opposite of what the ‘experts’ who called the referendum want is understandably seductive. Citizens can finally ‘take control’ not only from Brussels but also from Westminster – even if so doing will be, as the saying goes, cutting off your own nose to spite your face.

Then there is the shameful failure to educate the public on the vagaries (and yes, there are many) of the EU. This task has been left to daily newspapers yet none have taken it seriously. Worse still, one newspaper (that shall remain nameless) has done its best to mislead by regularly confusing the European Union with the Council of Europe, and the Court of Justice in Luxembourg with the European Court of Human Rights in Strasbourg.  Thus the referendum debate has sown as much confusion as clarification on the EU, making voters giddy with (dis-) information overload and inducing a decision to leave simply to be rid of the source of the headache, even if it is also the source of valuable public goods from reduced mobile roaming rates to essential protections at work.

So I for one am not surprised to wake up on June 24th to discover a majority voted to leave the EU. Those who voted to do so might be surprised, however, at some of the things that will remain the same. I list five below:

  1. The UK will still be obliged to respect the rights set out in the European Convention on Human Rights (ECHR) and comply with the rulings of the European Court of Human Rights in Strasbourg, as the Convention and the Court belong to the Council of Europe, an international organisation created in 1941 which pre-dates the EEC/ EU and the Court of Justice of the European Union (CJEU) in Luxembourg.
  2. Migrant workers, asylum seekers and refugees from former colonised and war-torn countries will still seek to re-locate to the UK by lawful or unlawful means. If France no longer feels obliged to co-operate with UK border controls as it has been doing, more desperate people may drown in the Channel. The level of immigration may therefore drop slightly and the number of deaths may increase significantly.
  3. British citizens and businesses will still experience the disappearance of jobs in the face of globalisation and the technological revolution. The more we bank, buy goods and holidays online, send electronic cards, use our Kindles and iPads, the faster the demise of our high streets and rural economies. Those who thus far have been unable to reap the benefits of membership of EU, one of the richest polities in the world, will continue to find it hard to do so after June 23rd.
  4. Home students will continue to pay high fees to study at UK Universities as these are set in Westminster not Brussels. International students enrolled to study in the UK will also still stay pay higher fees than home students for the same reason. International students may even face a fee increase if students stop coming from the EU and institutions seek to recoup the income lost by this.
  5. The British summer will still bring more rain than sun.

The world needs to note that 48% of the UK voted to remain so this is by no means a landslide victory for Brexit. David Cameron has resigned and will leave by the end of September. BMEs in the UK will now have to make sure our voice is heard in the re-negotiations. If I were a Brexiter, I would be planning how to explain that my vote brought the UK to political disintegration and international marginalisation.

Countdown to the Referendum: Remaining and reforming the EU by Rhodri Thompson QC

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series the articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin, Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC, Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

In our final article in this series before the vote tomorrow, Rhodri Thompson QC provides his final thoughts on how this referendum campaign has developed and the future for reform of the EU if we remain. He gives a summary of ten good reasons to stay, and five bad reasons to leave the EU. To download this article, please see here.

We hope you have enjoyed this series. If you would like to get in touch with your feedback, please email

Countdown to the Referendum: Brexit and the WTO Agreement by Dr Erik Lagerlof

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series the articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin, Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC, Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

In a guest post for the Matrix referendum series, Dr Erik Lagerlof asks whether the UK would be able to rely on the WTO agreement if it were to leave the EU. He argues that the UK as a joint contracting party alongside the EU and the other Member States will not continue to benefit from the WTO agreement if it decides to leave the EU. To download this article, please see here.

Dr Erik Lagerlof is a senior associate at the Swedish law firm Vinge.

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Countdown to the Referendum: Brexit and Premier League Transfers by Nicholas Randall QC

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series the articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin,Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC,Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

This week, Nick Randall QC considers the consequences of a Brexit vote on the ability of Premier League clubs to sign overseas talent. To download this article, please see here. 

We hope you enjoy this series. If you would like to get in touch with your feedback or to add someone to the mailing list, please email