Article 50(1) of the Treaty on European Union states that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements." Article 50(2) commences - "A Member State which decides to withdraw shall notify the European Council of its intention ..."
The High Court's judgment contains this passage (Paras. 15 to 17):
- Is the challenge by the claimants a challenge to the decision to withdraw or giving of the notice?
- There was some debate about whether the claimants' challenge is properly to be regarded as a challenge to the making of a decision to withdraw from the European Union under Article 50(1) or a decision to notify the European Council under Article 50(2).
- In our view, nothing really turns on this, since it is clear that the two provisions have to be read together. The notification under Article 50(2) is of a decision under Article 50(1). If the Crown has no prerogative power under the constitutional law of the United Kingdom to give a notice under Article 50(2), then it would appear to follow that under the provisions of Article 50(1) it cannot, on behalf of the United Kingdom, acting solely under its prerogative powers, make a decision to withdraw "in accordance with [the United Kingdom's] own constitutional requirements".
- However, we agree with the submission of Lord Pannick QC that, whatever the position in relation to any decision under Article 50(1), a decision to give notice under Article 50(2) is certainly the appropriate target for this legal challenge, since it is the giving of notice which triggers the effects under Article 50(2) and (3) leading to the exit of a Member State from the European Union and from the relevant Treaties.
In Counsel Magazine, barrister David Wolchover argues that there is no legal basis for the 29th March notice to the EU - Article 50: The trigger that never was? Wolchover claims that the UK has not made a decision in accordance with UK constitutional requirements and it follows from this that the 29th March Notification is invalid.
That this House recognises that leaving the EU is the defining issue facing the UK; notes the resolution on parliamentary scrutiny of the UK leaving the EU agreed by the House on 12 October 2016; recognises that it is Parliament’s responsibility to properly scrutinise the Government while respecting the decision of the British people to leave the European Union; … recognises that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further calls on the Government to invoke Article 50 by 31 March 2017.This motion was passed by 448 votes to 75. Following the Miller litigation, there is also the enactment of the Notification of Withdrawal Act.