Trigger warning!
Any second now TEU Article 50 is to be triggered. Brexit!
Wait. What’s Article 50?
Always a good idea to read the original, so here it is:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
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 by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. 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, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period …
Here are my thoughts on Article 50 (or not) written straight after the Brexit referendum result:
The smart thing now as I have argued at length here and elsewhere is for key European leaders to st 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.
As I expected, it has taken a while for London and Brussels (and Berlin and Paris) to mull all this over and finally get the Article 50 notification trundling out to the runway and revving its engines for takeoff.
Thus, an interesting practical question now presents itself. What exactly mounts to ‘notifying the European Council’ as per section 2?
A terse telephone call and message left on the European Council’s voicemail might not be deemed quite enough. Likewise a breezy Tweet from No 10’s Twitter account:
This is to notify the European Council that under TEU Article 50 the UK intends to leave #EU
#Brexit
#freeatlast
#hope #change
Maybe best to send in a formal document. But formal in what form?
Thus it would tick all boxes of diplomatic precision for the UK Representation to the European Union to submit to the offices of the European Council a Note Verbale:
The UK Representation to the European Union presents its compliments to the office of Mr Tusk as President of the European Council, and has the honour to inform the Council that this Note Verbale represents the official notification by the United Kingdom under Article 50 of the Treaty on European Union that the United Kingdom has decided with withdraw from the European Union.
The UK Representation to the European Union avails itself of this opportunity to renew to the office of the President of the European Council the assurances of its highest consideration.
Yet again that maybe is a tad … perfunctory?
Reader itdoesntaddup offers the idea of a letter from the Prime Minister to Council members:
Dear Members of the European Council,
As you will be aware, the UK has decided to withdraw from the European Union in accordance with its constitutional requirements, as described in Article 50, paragraph 1 of the Treaty on European Union. We hereby give you the formal notice required by Article 50, paragraph 2 of the Treaty on European Union of our intention to leave the European Union.
We note that in accordance with Article 218, Paragraph 3, it now falls to you to appoint your lead negotiator for the negotiations for the agreement that you are required to conclude with us on behalf of the Union, having secured the approval of the European Parliament, that will set out the arrangements for our withdrawal, taking account of the framework of our future relations, as specified in Article 50 (2). We note you will also need to establish negotiating guidelines before talks can proceed.
We further note that in accordance with Article 50(3), the UK will cease to be a member of the Union and cease to be obligated by the Treaties:
(i) On a date set forth in the withdrawal agreement, provided that it is concluded within two years from today;
(ii) Two years from today if no agreement has been concluded by that date (notwithstanding your obligation to negotiate and conclude an agreement with us will continue after that date until it is fulfilled);
(iii) On some other agreed date if there is unanimous agreement among yourselves and the UK to extend our period of membership beyond two years from today that is concluded within two years from today.
Although we are giving notice to leave the EU, we intend that our negotiations will honour the values expressed in TEU Article 8 and Article 3 paragraph 5, and we trust that negotiations will proceed in a cordial manner. We note that the provisions of Article 50 supersede those of other provisions of the Treaties for all matters included in the withdrawal agreement.
Yours sincerely,
T May, Prime Minister of the United Kingdom of Great Britain and Northern Ireland
On behalf of Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith
That looks to do the job. But it maybe bangs on a bit too much, telling them what’s in the A50 text when they (ought to) know that already?
How about this:
Dear Mr Tusk,
This letter gives the European Council formal notice under Article 50 of the Treaty on European Union that the United Kingdom intends to withdraw from the European Union.
I ask that the procedures under the Treaty for negotiating this withdrawal now be launched.
Yours sincerely,
Theresa May
Prime Minister
That might be too terse? Try this:
Dear Mr Tusk,
This letter gives the European Council formal notice under Article 50 of the Treaty on European Union that the United Kingdom intends to withdraw from the European Union.
I ask that the procedures under the Treaty for negotiating this withdrawal now be launched.
I assure you that the United Kingdom enters these negotiations in good faith with a view to establishing a new, strong and positive relationship between the United Kingdom and European Union. I am writing to you and Council members separately with proposals for taking the negotiations forward.
Yours sincerely,
Theresa May
Prime Minister
This version includes for the historical record (as this is an historic document of historic proportions) a formal affirmation of the UK’s good intentions, while pushing any detail about starting the detailed negotiations into a different ‘public’ letter that will have its own tone and inwardnesses as required.
Plus Mrs May might send further PERSONAL letters in manuscript to Donald Tusk and other key leaders that say something like this:
Dear Donald,
As the Article 50 procedure is launched, I just want you to know that I’ll be fully committed to working with you and other colleagues to get a good result for the UK, the European Union and Europe itself.
None of this is easy or without risk. But I am confident that with good will and mutual trust we can reach the creative compromises needed to achieve success.
Yours ever,
Theresa May
The point? Diplomacy.
Even with (maybe especially with) such momentous documents it’s all about both substance and tone. They in turn both have policy/public and personal dimensions.
How Europe’s leaders as people play up differences or build on common ground or both at the same time is central to the negotiations. ‘Framing’ the issues right from the start both on and off the record in terms of trust and cooperation leading to shared success helps propel things in a wise direction.
Let’s see what No 10 emits.
Share this page:
There are quite a few readings (in my view, misreadings) of Article 50 that circulate among politicians, lawyers, remainer activists and journalists. The logic for setting out the Article 50 process in the notice letter is to set the framework for negotiations and to remove ambiguities. Thus we want no question as to whether we have fulfilled our constitutional requirements to give notice, and there is no harm in reminding them that they have the right to run the negotiation and appoint the lead negotiator, rather than leaving it all to Juncker to pull strings in his Punch and Judy show interpretation.
Equally, it is important to note that negotiations do not terminate just because the UK leaves under the guillotine – it is an obligation of the EU to negotiate and conclude that agreement – the idea floated by Juncker and Barnier that there are only 18 months or less for negotiation should be countered. That is only true if the EU is going to offer us a deal to stay, where time would be needed to try to get the unanimous approval required.
Setting out the timescales on which the UK would cease to be an EU member and the processes that lead to each is also an implied reminder of the fact that if they fail to agree timeously they will not be entitled to a brass sou from the UK after its last monthly budget payment, which again rather undermines the combative Juncker/Selmayr stance.
The explicit references to Article 8 and 3(5) not only give some expression to our hopes for sensible negotiations, but remind the Council that these are Treaty obligations on them. It also offers an avenue to pursue an early agreement outside the Article 50 framework on the rights of migrant citizens under 8(2).
Finally, the reminder that the Article 50 agreement has its own rules that make it easier to secure agreement within the EU should remind them that it would be to their advantage to include as much as they can agree on at QMV level in the agreement, rather than leaving it all to the EU Commission et al. on their this year, next year, sometime, never timescales and self-interest, rather than the self-interest of the EU states.
One of the little oddities about the Article 50 agreement is that is falls under Article 216, being an agreement conducted on behalf of the Union, and thus requires no further ratification once Council has given it QMV approval – whereupon it becomes binding on all member states (potentially even including the UK itself if they pull a finger out and complete it before we leave) and EU institutions. There is no being held hostage by "Wallonia".
You're someone who's looking at all this with a v beady eye!
Let's see how far HMG goes in spelling all this out in the formal 'letter' itself next week. Another way of doing it would be to attach or send separately a 'Note on Procedure' or somesuch that indicates more or less categorically how HMG interprets the subtle points you make.
NB that there's always a tension between laying down a bold marker and losing flexibility..!
I agreethat there is no risk of being held hostage to Wallonia on the article 50 settlement, but the EP is a different matter – especially if the rights of EU citizens in the UK are not guaranteed and it is seen as cheery picking or is too close to BJ's position on cakes. Also, if the eventual FTA is a mixed agreement – as almost certainly it will be – then Wallonia may well be involved. I have advocated it would be sensible to put as much as possible in the article 50 agreement. This would be good for the UK – but is this as true for the EU? If I were them, I would max out on asset stripping, test how much the UK will pay, threaten customs controls (which they can do and we cannot respond under WTO rules until we adopt new legislation (which we can do only after we have left – and which cannot specifically target the EU – except through NTBs). I see our hand as very weak – so the UK negotiators will need to be well-prepared and on peak form. Are they?
I agree that Europarl as presently constituted is quite likely to reject the agreement on first presentation. Then Verhofstadt will claim he has had his say. However, I think this will be an act of theatre, because in reality any agreement put to them will have QMV support in Council, and they will be asked to think again (this is the EU!) – if necessary following the May, 2019 elections – perhaps after some minor pre-agreed modification is "negotiated". They will be reminded that leaving without a ratified agreement means a budget crisis for Brussels (and certainly no element of exit fee). It really is quite striking that there is no provision in the Treaties for anything other than complete freedom from Treaty obligations on leaving: even the most rudimentary commercial joint venture or partnership agreement will have pages of clauses setting out details of what happens when a coventurer decides or is forced to leave.
Perhaps Charles Crawford can remember who was working for John Kerr who might have actually prepared Article 50 drafts (I doubt it was John himself, even though he may have tabled them): I'm inclined to think they were a closet Eurosceptic with a brilliant mind and a sharp eye for how to sell the poisoned chalice to those who believe in more Europe.
Sunder Katwala, writing in the Telegraph, suggests that there ought to be two Article 50 agreements, with the first dealing with settled migrant rights. The problem with that suggestion is that should the EU agree, then why not as many salami slices as suits on Article 50 terms? There is no provision for more than one Article 50 based agreement, and if there is more than one, then how do you decide when you have finished (I have a possible answer, but it takes agreement: you establish protocols to the main agreement that can be papered in, but the list of protocol headings is fixed)? However, there is nothing to stop parallel agreements under other Treaty provisions as envisioned by 8(2). These would of course fall under the relevant mechanisms for negotiation – EU Commission or High Representative leads, some may require unanimity and ratification by national parliaments.
The agreement on migrants is not without difficulties in that various aspects of it will impinge on other areas, such as freedom of movement of capital (migrants in the UK remit some $25bn p.a. to their home countries according to the World Bank), EHIC (strictly an EEA competence), entitlements to welfare, etc. It may be that some of these have to be left until later, even if basic residency rights can be agreed.
There is an obvious set of tensions between agreements under Article 50 and other agreements. Under Article 50, the Council is in control, and the finalisation and ratification process is simplified. In others, the Council (and thus governments of Member States) largely loses control, except where it is called on to vote. The battle between Juncker and the Council now begins in earnest. Can the Commission be trusted to negotiate sensibly if it is entrusted with some agreement(s) outside Article 50, or will it try to use the situation to show its power, whatever the cost to Member States?
It should be obvious that Council (in which Juncker has no vote) should seek to maximise Article 50 content on topics where they have QMV support to include them in negotiating guidelines, and thus bypass the obstructive Commission. It should be equally obvious that Council will not sanction things that are not in their interests.
I think that the Juncker/Selmayr idea of trying to push a big bill across the table really doesn't work: there is no legal basis for it in the Treaties whatever. It would be much smarter to offer carrots in exchange for Danegeld payments. Plainly, the real idea is to be intransigent for 18 months, and then offer continued membership as an alternative and demand that the UK hold a referendum to stay in time to meet the 50(3) deadline. Juncker almost admitted as much in his Bild interview recently:
Not sure what he thinks is happening to Northern Ireland… but obviously he still hasn't got the message that Brexit means Brexit.
I'm sure that DEXEU and the FCO and embassies around the EU will have been busy working out how to ensure that at the least blocking votes can be established against some of Juncker's sillier ideas. Holding the EU's feet to the fire on their treaty obligations to negotiate per Article 50 (not filibuster), and honour the spirit of Article 8 and 3(5) seems to be an essential way forward.
Apologies to CC for such a lengthy response.
Most erudite! No need to apologise. V interesting.
Even if Sir J Kerr gets the credit for 'drafting' A50, maybe the perfidious French get even more for thinking of it in the first place: http://www.nbcnews.com/storyline/brexit-referendu…
An interesting tale. Yet having carefully read Article 50 in English, French, German, Spanish and Dutch only in the Dutch is there any possible ambiguity that arises from the same word having two meanings. By far the most common misinterpretation of Article 50 is to suggest that 50(3) implies that negotiations end under the guillotine, whereas it is quite explicit that only the obligation on the withdrawing state to abide by the Treaties is ended. On this occasion, I don't think your bête noire of failure to understand precise meanings in a different language applies. How these erudite minds failed to notice this I do not know, but I suspect it was down to wishful thinking and being assured that the words said things they do not say. I was pleased to see that Prof Derrick Wyatt, QC (for the Bar Council, and from experts in EU Law, Brick Court Chambers) supported my interpretation that negotiations do not end – even if we have already left – until they are properly completed by agreement, and that there is no provision in the Treaties to support an exit bill, in his evidence to the Select Committee.
I can understand that someone who has worked in the service of government will look at this through a political lens. However, the legal dimension cannot be ignored as – the the very least – it has the potential to have a big irritation factor. There are a lot of remainers (myself included) who will do everything we can to slow the Brexit train down until such time as it can be reversed and, sorry to say, 'damn the consequences'.
The letter is vitally important from a legal perspective if it is not to fall foul of a legal challenge in UK or at the ICJ. Taking into consideration certain legal facts,
1. That the referendum was not legall-binding or self enforcing
2. That Parliament did not vote for the UK to leave the EU, but only to allow TM to trigger article 50 (ostensibly at her discretion)
Then who has taken a decision for the UK to leave the EU? My belief is that the letter must state that, following the referendum result and the adoption of the enabling legislation, the Prime Minister has decided that the UK shall leave the EU.
If she does not craft the letter in this manner, then the notification can be challenged as non-compliant with Article 50. Whether the challenge will win is another matter – but it will serve the delay purpose nicely. I cannot emphasise enough that the UK Government must stop acting as though there is no legal dimesnion to all this. There is an I and other will use every oportunity to file the necessary challenges.
Thanks to Gina Miller, the Supreme Court has ruled on what is required to table notice in accordance with our constitutional requirements. Contrary to your supposition, it does not include the idea that the decision is the Prime Minister's alone: it is the decision of Parliament to endorse the referendum result and authorise notice that matters. I remain unsure whether the government really was opposed to the Miller case going ahead. It has offered clarity – not least in eliminating the idea of a Scottish veto – perhaps not even at the cost of a delay, given the tactical delay that appears designed to sideline Hollande from the Council discussions.