Prime Minister Theresa May has made it clear that she intends to trigger Article 50 of the Lisbon Treaty, giving the UK’s formal notice that it will leave the EU, by the end of March 2017. How that process happens depends on a case in the Supreme Court, whose verdict is expected shortly; it will determine whether May can trigger Article 50 using the Royal Perogative, or whether it needs an Act of Parliament and – importantly but often overlooked – whether votes will be needed in the democratic bodies of Wales, Scotland and Northern Ireland.
Article 50 is on everybody’s lips, but it is not obvious that its implications are widely known. It is therefore worth reproducing in full:
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 on behalf of the Union 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.
4. For the purposes of paragraphs 2 and 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.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
The politics of Article 50 are complex, and of course untested. However, drawing on my own experience of working both as a UK Civil Servant negotiating EU legislation and for the Commission on EU projects, I’d offer the following thoughts.
The most obvious is that all the bargaining chips are in the hands of the EU. The departing Member State has no role in the EU’s deliberations, and the timescale of two years can only be extended by the unanimous agreement of the European Council. In other words, any member state can prevent that from happening, leaving the UK in limbo after two years. Moreover, the effective period for negotiation may be considerably less as the exit terms have to be agreed by the European Parliament, whose agenda may well be very different from that of the European Council – and that is a process that will inevitably take time; the co-decision procedure when Parliament, Commission and Council cannot agree can itself represent a major and time-consuming negotiation. There is almost nobody with material knowledge or experience who seriously believes that any kind of negotiation can be completed within two years, but that – at best – is what we are committing to the moment Article 50 is triggered. It may be that this is what Brexiteers are banking on to ensure that Brexit really does mean Brexit – a breakdown in negotiations and swiftly going it alone after two years of disagreement (with the tabloids doing their best to represent the negotiations as independent Brits dealing with dodgy foreigners). But to suggest that triggering Article 50 when the Government has yet to offer its negotiating aims (as distinct from strategy) to public scrutiny is, to put it at its mildest, grossly irresponsible. And until those aims are clear, it is difficult to see how any responsible opposition party could accept the triggering of Article 50.
Second, the wording of Article 50 makes it clear that the price of access to the single market will be an acceptance of freedom of movement. There is no scope for bending treaty principles in order to suit the needs of a Member State that has decided to leave; on the contrary, the negotiators are likely to apply the most stringent terms, even if it is possible to argue that some other Member States are moving away from the pure principles of free movement. It is one thing to be inside a club pushing at the boundary of rules; quite another to be a supplicant, outside the club, looking for what is essentially a favour to be granted to the remaining members’ economic competitors. Moreover, Theresa May has said quite unequivocally that she will prioritise the closing of borders over access to the Single Market. My guess is that when Nicola Sturgeon is arguing that full and unfettered access to the Single Market is the price of not holding a second independence referendum, she – and her advisers – know full well it isn’t on offer. The implication of this is that if you believe that full, unfettered access to the single market is a red line, you are logically bound to oppose the triggering of Article 50; without a cast-iron guarantee that the UK will accept free movement, you are signing the Single Market away.
Third, the position of the UK’s devolved administrations in Wales, Scotland and Northern Ireland, remains deeply problematic. Scotland and Northern Ireland voted to remain; but even in Wales, which voted to leave, there are immense problems. There seems little doubt that Brexit will affect the relationship between the devolved Governments and Westminster, most of all in Northern Ireland, where the border issue remains intractable and the Irish Government is a party to the Good Friday Agreement. Moreover, there remains a huge question for all the Devolved Administrations about those policy areas that are currently devolved – including issues like environmental protection, agriculture, fishing and waste management – but fall under EU jurisdiction. The UK Government position appears to be that that jurisdiction will be repatriated to Westminster; but quite obviously that affects the devolution settlements. One as yet unresolved question is whether the triggering of Article 50 will require the approval of the devolved legislatures; it is difficult to see how a simple executive action by the Westminster Government is compatible with the devolution settlements. In that context it’s important to note the wording of the first paragraph of Article 50, that the decision has to be made within the Member State’s constitutional arrangements; getting this wrong means that there is a risk that the UK’s triggering of Article 50 could be subject to a lengthy and difficult legal challenge – a situation from which nobody (apart from the lawyers) would benefit
Moreover, in Wales at least there is an aspiration that the Devolved Administrations should be represented at the negotiating table when devolved matters are to be debated. Again, this is hugely problematic. The Member State is the UK, and other member states – particularly those like Spain who have domestic issues around breakaway regions – are simply not going to recognise Wales, Scotland and Northern Ireland as negotiators in their own right. But before Article 50 is triggered, the role of the Devolved Administrations in the negotiation needs to be clarified.
In conclusion, the Prime Minister’s declared policy is to trigger Article 50, by executive action, in a matter of weeks. As I trust I have made clear, this is an absolute point of no return – it can only be retrieved by a unanimous vote of the EU states who will have no interest in accommodating the UK, and given their domestic politics, every interest in seeing the UK isolated and even punished. And, regardless of how one voted in the referendum, the question remains of whether the UK is remotely ready to take that step. The official opposition – whose leadership has shown a less than profound understanding of EU issues – is saying that it will not “block” Article 50, should the Supreme Court decide that Parliament needs to approve it.
It seems clear that the implications of Article 50 are poorly understood and that the Government has not even begun to answer the absolutely key questions about how the process will be handled. And the fact remains that, two years to the day after Article 50 is triggered, the UK will be out of the EU. If a settlement is agreed it will be handed down from Brussels; if it fails we will be out on our own with no say and no formal relationship with the EU. There are those who would doubtless be unconcerned to see this happen (the same people, one suspects, who talk in terms of “taking back control”). But the implications are clear; the uncertainties are so great, and the risks so high, that no responsible Government – and certainly no responsible Parliament – could trigger Article 50 until key questions – questions that go beyond the negotiating aims to the heart of the make-up of the UK – have been answered.