I’ve been quiet on all the Brexit agendas latterly. Too much going on as I eke (eeeek) out a living.
But a reader writes:
In my view the UK has walked into a trap by agreeing to exercise article 50 at the start. It is clearly not fit for purpose. Instead we should be using it at the very end (a simple exchange of letters) once the full negotiation on leaving and new arrangements completed
And we should not have dropped the presidency. We could have used the presidency to be extremely difficult in 2017 and forced the negotiation of a sensible exit process with a timetable instead of the cliff edge with unmotivated negotiating partners. We just gave it up for zero credit or gratitude
The UK would have been much better off if article 50 had never been introduced. No rules would have forced a much more sensible negotiation and timetable
As a reader I would be interested in a post on this theme
Your wish is my command.
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First, our own Brexit diplomacy got entangled in all that tedious litigation over the role of Parliament (if any) in authorising the UK government to take the decisions needed to give effect to the Brexit referendum result and launch formally the treaty and other processes needed to start negotiating Brexit with our EU partners. That duly wended its way to the Supreme Court where eleven(!) top judges failed to agree, but delivered staggering fees at taxpayers’ expense to many barristers as they pored over the issues.
Here’s the judgement in full. Lord Reed’s dissent is the highlight:
More fundamentally, however, the argument that withdrawal from the EU would alter domestic law and destroy statutory rights, and therefore cannot be Page 76 undertaken without a further Act of Parliament, has to be rejected even if one accepts that the 1972 Act creates statutory rights and that withdrawal will alter the law of the land.
It has to be rejected because it ignores the conditional basis on which the 1972 Act gives effect to EU law. If Parliament grants rights on the basis, express or implied, that they will expire in certain circumstances, then no further legislation is needed if those circumstances occur. If those circumstances comprise the UK’s withdrawal from a treaty, the rights are not revoked by the Crown’s exercise of prerogative powers: they are revoked by the operation of the Act of Parliament itself (emphasis added)
Yes! Nails it.
Lord Reed ends with a great, bold passage socking it to those who want to make everything judicable:
.. controls over the exercise of ministerial powers under the British constitution are not solely, or even primarily, of a legal character, as Lord Carnwath explains in his judgment. Courts should not overlook the constitutional importance of ministerial accountability to Parliament. Ministerial decisions in the exercise of prerogative powers, of greater importance than leaving the EU, have been taken without any possibility of judicial control: examples include the declarations of war in 1914 and 1939.
For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.
Thanks in part to all this litigation, Parliament is now debating the proposal that HMG trigger TEU Article 50 and set in motion the agreed procedure for an EU member state leaving the Union. With Labour wisely or otherwise supporting the A50 route, it looks like that that’s what will happen in a few weeks’ time.
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So what about those reader specific points? They boil down to these questions:
Should we be invoking A50 at the start or the end of the process?
Would we be better off without using that route at all?
Did we surrender the UK Presidency for nothing?
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The EU is a network of treaties: contracts between states. The definitive Vienna Convention Article 54 says this:
The termination of a treaty or the withdrawal of a party may take place:
(a) in conformity with the provisions of the treaty;
(b) at any time by consent of all the parties after consultation with the other contracting States.
In other words, and perhaps surprisingly, a state does not have the simple formal right unilaterally to proclaim that a treaty with another state is ended, and thereby end the treaty. Pacta sunt servanda: agreements are to be carried out (VC Article 26: Every treaty in force is binding upon the parties to it and must be performed by them in good faith).
So, yes the UK could leave the EU without using A50 if all other member states agreed. But what if they don’t?
This question had never been tackled substantively until the Lisbon Treaty for the first time saw all EU member states agreeing a procedure for a state to leave the Union, namely TEU A50. More on all that here. This makes sense – EU issues are now immensely complex, so it’s wise to disentangle them in a measured, controlled way according to procedures agreed by all.
So I think we are better off using that A50 route: any alternative just makes everything messier.
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Fine. But does A50 need to be invoked to start the process? Or can it be a concluding formality after the negotiations are concluded?
As I said immediately after the Brexit referendum result:
The smart thing now as I have argued at length here and elsewhere is for key European leaders to sit down calmly but with some new urgency and consider what new arrangements as between the EU/UK and for the EU itself are going to be credible and sustainable with voters. Whatever happens the EU treaties now have to change in the coming years. It’s highly unlikely to be possible or desirable politically simply to have everything else continuing as before but with the UK not in the EU club.
In other words, the legal forms are important but they don’t matter. What matters is answering the key strategic questions. Then you find the legal language to make it all happen.
It follows that the key negotiations can be conducted and concluded in a couple of years without Article 50 being triggered at all. Or, perhaps, Article 50 will be triggered only when the clear outlines of a New Deal have been identified, with the Article 50 process kicking in to launch the legal formalities needed to finish things off.
In short, all sorts of options are possible. So don’t panic if no one option quickly emerges.
However, we now see that the real-life problem (as opposed to the legal wranglings and wider issues of principle/policy) is that bureaucrats and politicians in London and Brussels need to know what they’re doing. Do we take this Brexit business seriously? Or not?
This is why the A50 formal decision is so important. It launches a legal and practical procedure within agreed parameters and timelines (even if the latter can be tweaked in the light of events, if all agree to do so). Without launching that procedure it’s hard to commit resources to any serious negotiation on What Next?, as everyone involved is too busy wondering whether in the end Brexit might not happen to focus on the post-Brexit relationship.
And this is why the Remain camp have been straining every sinew to find footling legal ways to try to stall the A50 trigger moment. Once it’s triggered Brexit starts to look and be irrevocable for almost all purposes. There WILL be a new relationship based on the UK not being a full EU member, and now we all have no choice but to hammer that out.
This is not to say that the strategic essence of the deal can not be addressed before A50 is triggered. I have no idea what that might be, but No 10 and Mrs Merkel’s people and other key officials around Europe will be manoeuvring over the Big Picture pros and cons of different models (Norway, Switzerland, EEA, WTO or whatever). Anyone interested in the mysteries of these options can do no better than the EU Referendum blog and Richard North’s dizzying grasp of myriad vital real-life details.
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Finally, did we surrender the UK Q3/Q4 2017 EU Presidency for nothing, or not enough?
Even though these days the role of these Presidencies is largely procedural/hollow, they involve a lot of work. UK civil servants have far bigger things to work on now. And the very act of giving up that Presidency sent a signal that Brexit does mean Brexit. What’s the choice? To try to run a Presidency when you’re thinking about leaving the club would simply confuse and exasperate everyone else.
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We are heading towards the A50 triggering moment. That’s the best if not only available way to give effect to the Brexit referendum outcome. And because that’s what happening, the detailed negotiations now must start in earnest.