Darren Harvey, PhD Candidate in Law, Darwin College, Cambridge
Last week, Alyn Smith MEP for Scotland received a standing ovation from the European Parliament following a passionate speech in which he expressed the desire for Scotland to remain within the European family of nations: link here.
This immediately brings to mind a further aspect of the debate surrounding the UK’s position regarding the Article 50 TEU withdrawal process which, to my mind at least, has not been given full consideration to date; namely, the need for consent of the European Parliament before any withdrawal agreement may be completed.
The relevant paragraph of Article 50 reads as follows:
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
Leaving to one side the question of how the Article 50 process may be triggered in accordance with the UK’s domestic constitutional requirements (under Article 50(1)), it is clear from Article 50(3) TEU that once notification to withdraw has been made, 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 referred to in paragraph 2. In other words, the two-year clock starts ticking from the moment notification is made by the UK of its intention to leave the EU, unless of course the European Council votes unanimously with the UK to extend this period, or the UK withdraws the notification (if that is even possible; Article 50 is silent on this point).
This means that, should no deal be reached within the two-year period and should no unanimous agreement be reached in the European Council to extend the negotiations (a distinct possibility in my view), it is clear that the UK’s membership of the EU would simply come to an end.
However, in the event that a deal is reached, not only will its entry into force be dependent upon a qualified majority vote in favour in the Council, but also, and crucially, prior to such a vote taking place, the consent of the European Parliament is first required.
This raises two questions: first, how does the European Parliament give or withhold its consent? And second, what happens if that consent is not forthcoming?
Turning to the first of these questions, the default decision-making rule for the European Parliament is set down in Article 231 TFEU which provides: ‘Save as otherwise provided in the Treaties, the European Parliament shall act by a majority of the votes cast. The Rules of Procedure shall determine the quorum.’ According to Rule 168(2) of the European Parliament’s Rules of Procedure ‘A quorum shall exist when one third of the component Members of Parliament are present in the Chamber.’
Given that Article 50 TEU is silent on this issue, the default rule in Article 231 TFEU would appear to apply. However, Article 82 of the European Parliament’s Rules of Procedure, entitled “Withdrawal Agreements” provides: ‘If a Member State decides, pursuant to Article 50 of the Treaty on European Union, to withdraw from the Union, the matter shall be referred to the committee responsible. Rule 81 shall apply mutatis mutandis. Parliament shall decide on consent to an agreement on the withdrawal by a majority of the votes cast.’
It therefore appears to be the case that the default quorum rules in Article 168(2) Rules of Procedure apply. This means that, should the full European Parliamentary chamber vote on the UK’s withdrawal agreement (which seems likely), a simple majority of votes cast shall determine the Parliament’s position.
However, unlike the rule for accession treaties set down in Article 49 TEU which requires Parliamentary consent by a majority of its component members: i.e. a number of votes greater than one half of the European Parliament’s total number of MEPs; Article 50 TEU merely requires a majority vote of at least one third of the total number of MEPs.
In other words, provided that more than one third of the total members of the European Parliament turn up to vote on any future withdrawal agreement, a simple majority of votes cast shall be sufficient to determine the European Parliament’s position.
What happens if the European Parliament withholds its consent from the UK’s withdrawal agreement? According to Article 50(2) TEU the answer appears clear: without European Parliament’s consent, there can be no move to a qualified majority vote in the Council and thus the withdrawal agreement cannot be concluded. Should this consent be withheld for the duration of the two-year period running from the moment the UK signals its intention to withdraw, it seems that the UK would once again be facing the prospect of having its EU membership come to an end without a deal.
Alternatively, should a deal be reached within the two-year period but the European Parliament signals its intention to withhold consent, it is conceivable that this may prompt a move to extend the negotiating period via a unanimous vote of the European Council and, in so doing, perhaps provide the European Parliament scope to have some input into the substance of the withdrawal agreement.
In light of this, the role of the European Parliament is not to be taken lightly in the months and years that follow - not least because national governments will have much less control over their MEPs than their representatives in the European Council and the Council.
Furthermore, whereas Article 50 (4) TEU makes it clear that for the purposes of Article 50 (2) and 50 (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, nothing is said about the MEPs of the withdrawing state. Will the UK’s MEPs be involved in the vote to give consent to the withdrawal agreement prior to moving to Qualified Majority Voting in the Council?
To my mind this brings an additional and as yet largely unexplored question to the table regarding the role that Scotland (and perhaps Northern Ireland) can play in the Article 50 withdrawal process. Whilst it may not be possible as a matter of UK domestic law for the devolved governments to block Brexit (see Mark Elliott’s post), there would appear to be scope for Scottish and Irish MEPs to begin building alliances across the European Parliament to withhold consent from any future withdrawal agreement lest their interests be protected. The great risk with this, of course, is that the European Parliament withholds consent, no extension to the negotiations is agreed in the European Council, and Scotland, with the rest of the UK, leaves the EU with nothing.
The above is of course speculative in nature and much negotiating lies ahead before we begin to build up a clearer picture of what any future UK-EU relationship will look like. Following last week’s standing ovation in the European Parliament for a MEP who is a member of the Scottish National Party, however, the European Parliament may yet prove to be a key player in how that future relationship takes shape.
Photo credit: euractiv.com