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.
* * * * *
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;
or
(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.
* * * * *
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.
* * * * *
Finally, did we surrender the UK Q3/Q4 2017 EU Presidency for nothing, or not enough?
No.
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.
* * * * *
Conclusion?
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.
QED.
Next?
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I am sure that in years to come your erstwhile colleagues in the various capitals around Europe will have a tale to tell about the extent of pre-negotiations before Article 50 is triggered, and indeed, on the negotiations they themselves conduct ancillary to the main negotiations in Brussels as an ongoing process. These have been useful in identifying differences of opinion, only a few of which have surfaced in the public domain so far. Those differences are helpful in undermining the Commission's attempt at building consensus for a "punishment Brexit" (for which there is little support in the Treaties, either conceptually under Article 8's good neighbour provisions, or anywhere much else in support of their purported exit bill), but at the end of the day we need to see them resolved into a sensible agreement.
Far from being a nicely defined set of procedures, the Article 50 process is ill-defined, and what little there is is frequently misconstrued to claim that it contains wording that is absent. It would probably have taken several years to negotiate if it had referenced a procedural appendix laying out in full detail how it was supposed to work. Taking what we have:
1) Article 50 is superior to other arrangements that require unanimity ( e.g. an Article 207 based trade agreement or a negotiation outside the scope of the Treaties), in that anything incorporated into the agreement only requires a Europarl majority and QMV Council support and the agreement of the withdrawing state. That means not being held to ransom by "Wallonia". In theory it means that anything for which there is QMV Council support can be included in the negotiation – over the heads of the EU Commission if need be – if there is a way of construing it as "setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union." It also means that a blocking minority can prevent certain tacks being taken, which may prove to be a useful holding device. It might be very interesting if the agreement referenced protocols to be fleshed out as time permits.
2. Negotiations continue until agreement is reached and concluded. There is no deadline on negotiations for the withdrawal agreement – only on any attempt to agree that membership is extended for a period – or indefinitely. The EU remains bound by Article 50 to negotiate meaningfully even once the UK has left. The idea put about by Barnier that there is only a very limited time window for negotiations only holds water if the EU intention is to persuade the UK to stay, because approval of all 28 has to be in place within the two year guillotine for that to be effective. However, it is rather strange that his idea of persuading us to stay is to highlight the size of the bill we will face in doing so, since it seems extremely unlikely that the EU will offer us a bribe of not having to pay their €60bn+.
3. Absent agreement to extend our membership before the guillotine falls, the UK is out whatever the state of the negotiations at the end of two years. That will of course serve to concentrate minds as the deadline approaches, but it does not guarantee a proper agreement is finalised prior to departure. Mind concentration will fall to emergency measures, and perhaps means of papering aspects of agreement post exit. There appears to be no appetite to explore the possibility of continued membership on a serious basis from within the EU – however, it is wholly possible that the UK might agree a limited extension to coincide with the end of the current MFF period to minimise the internal budget wrangling the EU faces, in exchange for substantive progress in other areas.
4. The EU's exit bill appears to have almost no backing in the Treaties. Obligations are almost entirely on Member States, with no provisions for ex members. The obligation to pay into the EU budget is entirely couched in terms of Member States, and will cease as soon as the UK ceases to be a Member. There is a joint and several guarantee of the EU's pension schemes – but that is only callable by pensioners in the event the EU goes bankrupt or disbands. By comparison with any commercial joint venture or partnership operation the Treaties are woefully lacking. The EU is liable to be disappointed in its appeals for funds, except to those operations the UK continues to participate in which will be small beer such as air traffic arrangements, perhaps scientific cooperation under Horizon 2020 etc.
5. The reason we have to pursue the Article 50 route is ultimately that the EU is not prepared to use any other route. The more we look at it, the more it appears that, far from being an option that no sane country might pursue as John Kerr has suggested, it is actually designed to secure whatever win-win arrangements can be made without unduly holding us to hostage. It does not on the other hand work too well for e.g. Greece should they decide to follow us out, as there is no obligation on the EU to continue to contribute to the Greek economy.