“The question then arises as to the consequences if the constitutional requirement of Parliament’s express statutory approval is not satisfied upon conclusion of Article 50 negotiations. The Three Knights Opinion contends that, if Parliament is unwilling to consent to the negotiated agreement, or approve of withdrawal without any agreement in place, the notification issued under Article 50(2) would either lapse or could be unilaterally withdrawn. In such circumstances Article 50(3) would not automatically expel the UK as no Member State can be forced to withdraw otherwise than pursuant to a voluntary decision taken in accordance with its own constitutional requirements.
If follows that, as a matter of law, one must read the UK’s notice of intention to withdraw from the EU as containing an inferred clause of constitutional compliance conditionality. To do otherwise could have the effect of the UK being expelled from the Union in contravention of its unwritten constitution, the EU Treaties and customary international law and practice.”
More substantive than the 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), which was passed by Parliament on 13 March, the Prime Minister’s 6 page letter of notice, issued under Article 50 TEU, is lacking in one crucial respect. This post asserts that, as a matter of UK constitutional law and in accordance with the EU Treaties as well as customary international law, conditionality should be inferred into this notice. Such conditionality manifests in the requirement of domestic Parliamentary approval at the end of the Article 50 negotiation process.
On Wednesday 29 March, shortly after the UK’s Article 50 notice had been delivered to Donald Tusk, Theresa May told the House of Commons that it was a ‘historic moment from which there can be no turning back’.
That premise is disputed. As a matter of law, it is far from certain that notice issued under Article 50(2) is…
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