No doubt Mrs May is receiving a great deal of advice, mostly conflicting, from all quarters. It seems to me that most commentary ignores the essential facts and is either made in pursuit of agendas which are irrelevant but opportunistic or which unnecessarily complicate the issues. Either will only confuse and delay matters and lead to an unsatisfactory result. In these articles I attempt to remove the clutter and get down to the necessary essentials of making a clean and rapid exit.
There are at least six points about Article 50 that I see routinely overlooked or misunderstood.
- Article 50 is the only means of legally forcing the EU to negotiate at all. If the EU refuses to negotiate an agreement, as some of its wilder and unrealistic officials and state leaders seem to imagine it may, it would be in breach of the treaties and UK would be within its rights to immediately suspend all payments to the EU pending resolution in the European Court of Justice. The frequently mooted Vienna Convention on the Law of Treaties does not provide an alternative legal avenue because it requires the parties (at Article 54) either to use the exit clauses in the treaty or to agree among themselves an alternative. The EU is not a party to the Vienna Convention, although it selectively applies its clauses to its own treaties. It is highly unlikely to desire or to be able to agree an alternative to Article 50.
- The UK Parliament has already authorised the government to exercise Article 50 by approving the Lisbon Treaty without exception. So there is no constitutional requirement to return to Parliament. Whether the ensuing agreement on terms of exit requires parliamentary approval depends on what it contains. Not all international agreements need to be debated or voted on in Parliament. Normally it is a Royal Prerogative exercised by HMG after a treaty has been laid before Parliament for 21 days. However, the European Communities Act 1972 will need to be repealed at an appropriate time by Act of Parliament and no doubt it would be necessary and convenient to include clear statements regarding for example the status of EU law. Where Article 50, somewhat unnecessarily, refers to the departing state’s constitutional requirements this is what it means: each country has its own internal arrangements and it simply recognises the different processes by which a member state may withdraw.
- The two year negotiating period can be extended only by agreement with the UK. This enhances the UK’s already strong negotiating position: if the EU doesn’t agree within two years, it gets nothing. EU agreement is by QMV which also enables UK to demand a quick response and to sideline any states being awkward. There is nothing in the treaties to prevent UK discussing matters with individual EU member states.
- The treaties continue to apply until the exit agreement comes into force and the agreement must be agreed by the EU Parliament. Therefore it is essential that pro-Brexit MEPs maintain their attendance in the EU Parliament and turn out to debate terms of the agreement and lobby on behalf of the UK at every opportunity. This also enhances Britain’s negotiating position: it should be prepared to threaten attending every meeting and opposing every integrationist policy.
- Article 50 concerns “arrangements for withdrawal”, not terms of any future relationship. It contains no requirement to negotiate or agree anything other than this.
- Sensibly, Article 50 states that the EU can decide among the other member states what its negotiating position is without the UK being present. So too can the UK and this is perfectly normal in any negotiation. It does not mean, as some commentators insist, that the EU can dictate terms without consulting UK.
Many commentators seem to think that leaving is itself negotiable. It is not. It is the decision made by the voting public in response to the question put by Parliament for them to have the final say: leave or remain. No half way house was offered, no future relationship was offered. Being an independent sovereign nation is the normal state for nations to be in. The EU is abnormal. UK has decided merely to return to normality.
My view is that the UK needs to leave first and only then attempt a further formal relationship, if at all. Leaving first enables clarity of purpose in the negotiation, a narrow agenda and provides the fastest route to an agreement and a new status for UK and for the EU. It has the following advantages compared with attempting to transition into a new relationship while still a member of the EU:
- The EU is in turmoil and many of its leaders are hostile and in no mood to be accommodating. A quick exit without any attempt to forge a new relationship allows them time to calm down and adapt to the new EU without UK.
- The UK needs to adjust to governing itself as a sovereign nation. UK Government needs to get used to having sole responsibility for government. It needs to establish UK’s domestic policies and to develop international relationships that will give it a broader perspective on the EU and Britain’s new place in the world.
- Industry and individuals need certainty of the outcome as early as possible. It will quickly become clear that EU policies, directives and regulations no longer apply to the UK and any issues will be decided solely by the UK’s own government, parliament or courts.
- A quick exit to normality will demonstrate to the EU (and many in the UK who should know better) that the UK is not a supplicant begging the EU for concessions.
- The UK needs to wait to see how the new EU will develop before attempting any formal long term relationship with it. The EU will either federalise rapidly or become more discordant and fractured.
- As an independent nation not bound by EU rules UK gains a negotiating advantage for any future formal relationship.
In Part 2 I will outline the approach I think UK should take.