Negotiating Brexit – The Shades of Article 50

I would say that Brexit is clearly the biggest diplomatic event of our lifetime. After all, when was there one bigger? For the UK, the end of the Cold War didn’t even come close in terms of its impact. As such, it shouldn’t be entered into lightly or half-heartedly as it is going to radically change many things.

Unfortunately, that is exactly what we have done. Rightly or wrongly, we are now set on a course of action with no agreement even on the destination, let alone how to get there. That presents many challenges and this one issue is going to eat up the resources and time of the British Government for the foreseeable future. So what’s the next step?

Destination

No one knows what this is. And we really need to set out what we want before we start trying to negotiate to achieve that. However, this isn’t a piece that is looking at what type of deal we should get – that’s another discussion – this is a piece on how to approach the negotiations. It’s up to all those who voted Leave to agree what they want and what they are prepared to accept – which are unlikely to be the same thing! For example, do we want to stay in the Single Market, do we want a complete end of all freedom of movement, do we want to be able to overrule European laws, etc? This has to be thought out as you don’t go into negotiations just hoping for the best. The goals, the priorities, the “red-lines” etc all need to be worked out now in order to give the UK team the best strategy and thus a fighting chance of getting the best deal possible.

Article 50

Once we have agreed objectives, we need to start negotiations. This is where we have the problem with Article 50 – that section of the treaty of Lisbon that deals with a member state leaving the EU. The EU Commission and member states have said that they won’t begin negotiations until the UK have given formal notification under this article. However, not wanting to make a complete leap in the dark, the UK has said it wants to negotiate and know where it is going before it leaves. So, a stalemate.

And what about the future? Whilst Article 50 refers to “…taking account of the framework for its future relationship with the Union”, this does not say that these negotiations cover all aspects of its future relationship. Given these negotiations are governed by Qualified Majority Voting and Trade Agreements require unanimity, then it implicitly recognises that things such as the future trading relationship are not covered by these negotiations. Officially, those key trade negotiations are supposed to happen after Brexit when the EU will negotiate as one body with a newly separate UK. In the meantime, we would be trading on World Trade Origination rules, which would be one hell of a shock to the economy.

To think that all of this is stacked against the leaving state would be right. Virtually all the negotiating power is with the EU. There are two years to conduct a leave agreement and, if none is agreed, the leaving state is just thrown out. Trade negotiations are separate and the EU has no need to hurry – whereas a leaving state will have no agreement of its own and will be desperate to re-establish its trading position. None of this should be a surprise, though, when you bear in mind that the man who wrote the article, wrote it as a deterrent that was never supposed to be used. All of which puts the UK in a difficult position, to say the least.

How to approach the negotiations

Assuming the UK has established its objectives and tactical approach (which it is still far form doing), the most important thing we need to do then is to keep our options open. This is essential in all negotiations – in all strategy, in fact – because if you run out of options, you are forced to take what’s available. But if you can pick and choose and ultimately don’t need to take anything, then you are in the driving seat.

Being able to walk away from the negotiating table at any time is therefore absolutely key. If the EU knows we have to accept something, what leverage will the UK have? Yes, we are still an important market for European goods but – without all the trade agreements – we could be left in the lurch as we can’t sign or even informally agree anything with others (or the EU) until we have left. So it would be a colossal leap in the dark – and we could easily get economically shafted as all other states in the world will be using this as an opportunity to advance the interests of their own industries and economies. So we must be able to keep the options open.

The way to give strength to the UK’s negotiating team is to float the possibility that we might change our mind. That way, we can threaten to walk away from the negotiating table and back to the status quo if we are getting a rough deal. In fact, a strict reading of Article 50 allows for us to change our mind because having to use Article 49 only applies If a State which has withdrawn from the Union asks to rejoin…” and that clearly doesn’t apply until you have actually left. That was certainly the conclusion of a study into the leaving process conducted by the House of Lords; but we should put it beyond doubt and make it clear to the EU that we reserve the right to walk away from the negotiations. And there is a way of doing that.

Conditional Notification

To achieve this, the UK gives the formal notification via an Act of Parliament (it’s dubious that it can be done in any other way as the current legal case is arguing). In that Act, we then state that the terms of leaving need to be approved by Parliament or by Referendum, otherwise the notification is incomplete and the UK stays. With that in place, the UK can then go into the negotiations knowing it is not going to be screwed over. This is because Article 50 says “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”  Well,  the UK constitution is basically a collection of Acts of Parliament. If one of these says we need to give explicit consent to the specific terms being offered, then that becomes our constitution.  That may be debatable – but given the previous legal reading of Article 50, there is a strong case to make that interpretation. Fundamentally, Article 50 is a badly drawn clause that’s been untested. Therefore, any government would be failing in its duty to look after British interests if it did not interpret the Article in the most favourable way.

Some say that this gives the EU an incentive to make terms bad for us so that we would stay! Hardly. I think the EU is disappointed; but they’re not going to be falling over themselves to manipulate us into staying. They’ve got their own interests. When you ask people who say this, what should we do then? They say we should put all our cards on table as it’s in the EU’s interest to make it work – i.e. they will be nice as they want a deal too. Yes, they do; but if we don’t have the right to walk away, we’d be faced with whatever deal they offer (which would be one that maximises their advantage) or walking away into WTO rules, which would be severely damaging to the economy. Some say that would be fine; but I would venture that those who say this really don’t understand the impact that this would have on the UK economy.

More importantly, everyone who has some understanding of the complexities of trade agreements (let alone the intertwining of Single Market law in the UK body of law) knows that this is going to take years. At the very least, we will need some form or transitional period to avoid crashing out with untold damage to our economy. But if we want some form of special deal, we need to be able to control the exit – and extending our constitutional requirements to agree the deal effectively increases the options available under Article 50. Yes, that’s an untested unintended approach; but the whole process is! If we want to get the best deal for the UK, we have to be taking that assertive positive position. If we can’t even do that on the fundamentals of how we are going to negotiate, what use is the British team going to be when it actually comes to the nitty gritty?

Conclusion

So start negotiating Mr Davis– but do it with all our options open. Who knows what deal we can get; but by using a conditional notification we would get the maximum amount of control possible over the process. This could then be enshrined in a promise to hold a second referendum because none of us know what deal can be achieved.

So do the deal – and then let us have the final say when we can actually see what both options truly mean. Then, whatever happens, the people really will have spoken.

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6 thoughts on “Negotiating Brexit – The Shades of Article 50”

  1. Rubbish. A conditional notification under art 50 is no notification at all and would be ignored by the other 27 MS

    RT: Possibly; but then it would go to the ECJ for a ruling. The point is that this whole process is untested and the suggested approach does confirm to the letter of the law. In the absence of any current plan, I would therefore suggest it is worth discussing and considering.

  2. Having read the various posts I dont propose to refight the campaign all over although I disagree with a number of statements made there but to comment on what to do now and the nature of the leave vote, the latter first.

    Your subdivisions of the leave vote make sense although it is wrong to look at them as separate. You refer to 3 groups I think 2 leave and remain. Anyone involved with the leave vote will tell you two particular things:

    1) Leave voters came from all sectors of society. The traditional Labour post industrial areas where people no longer feel part of any process or any decision that is made and the middle class voters not part of the establishment or elite as you wish to call it, who have had enough of paying for the endless mistakes of government. In talking to one another they found that this was in many ways a new coalition in UK politics, that traditional voting habits now could be disposed of since there were common agreement on many subjects not least migration taxation sovereignty and most of all the democratic deficit in the globalised EU world. It is worth stating very strongly that the Leave vote is not an aberration any more than Trump is an aberration. The wave of populist sentiment that has been coming across the world and is increasingly manifesting itself arrived on 23rd June. It is in the US. The vote was a demand to leave the EU but also very importantly a message to the establish political economic and social order that people have had enough of not being heard. The expression not being heard does not mean people don’t listen it means that people listen and do nothing. It means that when people complain that they don’t like something it is rammed down their throats whether they want it or not. When they adopt social attitudes that are contrary to the views of the social and cultural elites they are often simply abused or deemed simpletons who have no understanding. Post Brexit, the noise was heard that people are not qualified to vote on such complex matters as EU which remarks are a travesty of any democratic society. The UK has over hundreds of years achieved a universal franchise (RT: since 1929) where each vote counts equally and there is the sense of a desire on the part of some to return to a franchise based on some form of qualification. We heard post Brexit from young people complaining that their futures had been blighted by the vote forgetting that many have fought for more than a generation under something that they in no way believed in, and the complaints song the young went so far as people complain that leave voters were wrong because they did not think the same way as the complainant. That is just entitlement. The nature of the leave vote was a vote against these attitudes, the superior London centric views of the elites were being rejected forcefully.

    The vote was also a populist vote. The wave of populism I am talking of is gaining force and traction. Brexit Trump Austria and a far right president, the Philippines and a government promoting the killing of drug dealers, all these are manifestations of the enormous democratic deficit created by globalisation. Now it is all very well to say that globalisation brings benefits and it does, but for whom, not the leave voters. Populism is fine in principle, a populist is defined as a person concerned for the interests of ordinary people and nothing wrong in that, but the danger of populism is that it is easy for such intentions to fall into the hands of extremes. Immigration or migration, the refugee crisis are not seen as good in any way, they are seen as a threat to life and a threat to culture. This country is made of immigrants but these have been people who came and integrated, but that immigration was controlled. EU immigration is not and it is seen not that immigrants are bad but that for example they make an NHS already under pressure more unworkable. (RT: minor part of the problem – please refer to my post on immigration) But express that and you are called racist xenophobic by these elites. This vote was a rejection of that. The EU is seen as an institution that personifies that arrogance and that lack of accountability. I will say that the EU is antidemocratic and undemocratic, and whether it is or not is another debate (RT: Well, it automatically becomes part of the debate because there are many many people who would say you are completely wrong. I discuss this on an earlier post on Democracy) , but there is no doubt that people understand that to vote in the EU elections has no relevance in the EU (RT: I’m afraid that isn’t true. MEPs ave a lot of influence and power nowadays) and is simply a marker of the state of UK politics because the vote has not real authority in the EU (RT: it does have real authority in the EU but if we in the UK treat it as a domestic election, that’s our choice, though it does miss the point somewhat). So leave voters however you want to round them up, classify them interpret them or abuse them (RT: I am certainly not abusing any Leave voters and no one should) , are driven by a powerful understanding that the world is not as it should be in a democratic society, that something is rotten in the state of the EU and that something is rotten in the UK. (RT: certainly that is what many of them believe. Whether they are right or not is another matter) To continue to patronise these voters is frankly dangerous, they are angry, they are determined and in 17m people they have found a unity and strength in numbers that they wont let go of. If you do it will bite and bite very hard. I would classify myself in the 2nd group of leave and I am driven by a belief in fundamental democracy. I dont believe in pooled democracy (RT: ALL democracy is pooled – in the UK as well. Please see earlier post) although you can have treaties like Nato, I believe that the nature of community that binds us together is not served by experts and technocrats being in command, although we need them to advise and implement, real democracy lies in the votes of ordinary people, and those people must vote directly for those who make decisions. Without that there is no real democracy and we enter the world of 1984. The vast majority of leave people feel that way and migration is the classic because put simply people dont want it unless it is carefully controlled no matter the price. Tell them they are wrong certainly, but that is what they want and who are we to say no? In past times there would be a debate, now soluyions are discussed amongst those with influence and imposed

    As are as what to do now is concerned I dont disagree with your approach or attitude to it, we are in uncharted waters but I do feel that Article 50 should be invoked immediately. We cannot expect to have our cake and eat it by the EU telling us what deal there is before we do it. Invoking it will take away much of the 2nd guessing around whether it is really going to happen and indicate some clear direction for the economy (RT: I’m afraid that will only come when all the trading relationships have been established and that will unavoidably take years) and will I think enable some unity to come because the die will be cast. When the deal is done it needs to go to some vote a referendum on the deal or parliament or even an election but for now we should invoke article 50. We also need good clear leadership with a leadership that is clear about where it is going and not sacrifice that on the alter of keeping all our options open. There needs go be a balance and a clear indication that the government will respect the outcome.

    RT: I’ve answered a number of points in the body of your text; and I understand your point of view. In the Three Tribes piece, I am only highlighting the three distinct visions for the future, not their motivation. The problem for Leave is that only one of the tribes wants to severely curtail immigration – the other does not – but without each other there is no mandate. That is the dilemma; but we do appear to agree that the only way forward is to get a specific deal and then vote on that with the options and consequences crystal clear.

  3. Why invoke Article 50?
    We do not live in Toryland – we elect Governments not rulers.
    We cannot allow such a fundamental & permanent constitutional change to be enacted by a whim of the same people whose whimsy brought us to the sorry pass, without agreeing with the notion that we are ‘ruled over’ and not Governed.
    Ergo:How can denying Democracy be democracy?

    There is, of course, much else to be said about how we got here and where we go from here, but all of this should take place prior to invoking Article 50.

    RT: There is certainly a lot that needs to be discussed – both in the UK and with the EU. The approach here is just a suggested way forward to start that debate. As to why invoke Article 50, the answer probably is that because Leave won. At the very least, we therefore need to develop the Leave option even if the majority of the population then dislike the reality.

  4. 17 million people voted to brexit. 16 million voted to stay. That makes 33 million. 42 million were able to vote, so 9 million were happy to stay as they were. So the people who were happy to be in the EU have been ignored. The people who say this is undemocratic must remember that the vote was not a general election which can undone in 4 or 5 years time, but a vote for ever. So everyone should have been counted.

    RT: I agree. And that is the main reasons major constitutional changes – and they don’t come more major than Brexit – in most countries have a higher voting requirement (turnout and majority) to ensure that a country is united behind such a change and to take account of those who can’t or don’t vote. This is even more pertinent in this case because of the economic hardship and practical parliamentary work that Brexit will involve. We can do it, of course we can, but it’s a huge effort and the country is far from united behind the issue.

  5. I suspect that a withdrawable invocation of Article 50 would be either presented with a worst case scenario or not taken seriously. As things stand, the 27 believe Brexit means Brexit and might be forgiven for being less eaten up with the detail of what that means than the UK government. Perhaps when they receive an indication of what it means, they might take more interest. If they find out it means, “Yes, well, maybe,” they have the option of reverting to their pre Brexit stance of “We hope not” or regarding the UK as a wretched nuisance unable to make up its mind. RT: I think the whole Brexit process and the split nation has shown that; but it’s also shown up some of the failings in the EU which they need to address. I’m not sure how the 27 would react; but the UK should take the stance that is most advantageous to us.

    Psychologically, the route back seems a difficult one to take and I belong in the group who regard Brexit as the greatest disaster for the nation in decades. Like many, I think the exit will be extremely painful, not only economically but in terms of something which I might liken to a sense of wellbeing. What I wish for quite simply won’t happen and would amount to Ms May standing outside number 10 and admitting that the whole thing was a grave error fuelled by deception. RT: I think you’re right – that won’t happen. I suspect the 27 would agree with both elements of that sentence but it’s cloud cuckoo land because it isn’t going to happen.

    Tragically, I think this travesty will have to run its course. The price to be paid or victory to be had will have to be discovered and doubtless interpreted and reinterpreted. I got out 6 years ago and am so glad I did. Nonetheless, I remain extremely saddened. To suggest that populism is nothing more than reaching out to a decent majority who are tired of being ignored is to ignore the motives of those who do so. RT: As we have seen.

    RT: I agree with most of what you say; but we do need a way forward and this approach offers one. A parliamentary vote is required – as I’m sure the courts will confirm in October – and this is a proposal Parliament can unite behind. It gives a strong negotiating position and the prospect of approval of a final deal so that people can see the exact choice rather than the empty promises they were shown. I would like to see MPs respond as to why they cannot take up such a position.

  6. Perhaps I’m naive. The Express accused Mr Juncker of saying something crazy by making that admission. I’m not sure I understand why and so my naivety continues.

    So, I’ll naively suggest that maybe 2 years isn’t too short a period in which to negotiate trade deals. I might even go further and say the time period could be a matter of months. RT: I’m afraid that is very impractical and highly unlikely. Trade deals are immensely complex things and would likely take experienced negotiators years. And the UK hardly has any of those.

    Apparently Apple and Eire are annoyed with the EU Commission. Correct me if I’m wrong but I don’t think either of them is disputing the Commission’s central finding that Apple paid a tiny fraction of the Corporation Tax which would have fallen due if it had paid at the standard rate of 12.5%. There appears to be no factual dispute about the figures; rather, an assertion that multi billion multinational corporations should be entitled to negotiate grace and favoured status and that Sovereign States should be entitled to grant it with cries of foul when it becomes taken away because of supranational rules. RT: As I understand it, it’s more to do with State Aid. Under Single Market rules, it is not allowed for a state to give extra help to a company based there – other than by the agreed EU wide rules – because it puts up barriers to competition and trade. The special tax deal for Apple amounts to state aid and is therefore illegal

    Again, naively, I wonder if it requires something of the size of the EU to stand up to something the size of Apple and to say, “Paying derisory amounts of tax is unfair to other businesses and an injustice to the people of the country in which you are located.” RT: Without a united approach to this sort of thing within Europe, there will be a race to the bottom with countries giving all sorts of aid in an attempt to undercut each other – effectively destroying the Single Market. So yes, I think you are right that it takes something the size of the EU to stand up to this.

    I imagine (probably naively) that it’s this kind of thinking which got in the way of TTIP and might yet get in the way of TISA. There may be a reluctance to accept that multinationals with billions at their disposal should be able to have such a huge input into decisions about how goods and services are provided to the point where their economic interests can pose a legal challenge to government policy. RT: Pretty much. We could have had TTIP – or any trade deal – virtually overnight if the EU had just rolled over and accepted what the others wanted. The deals take time because it stands up for Europeans and so progress is through compromise – we get this if they get that. Another reason why they take time as neither side wants to make concessions they don’t want to. This is why size matters in such negotiations and why the UK will be at a serious disadvantage on its own

    Outside the EU, of course, things might be viewed differently. Is it naive to suggest that the UK’s ideal type Brexiteer agenda is a quick look to the United States with cries of, “TTIP and TISA? Of course we remember but we were wearing different hats then. Come on back to the table. We should be able to wrap this up in a month or two.” RT: I think that may well be a typical Brexiteer view. Unfortunately, such a view betrays a complete lack of understanding of the underlying realities. The Americans would undoubtedly do a quick deal. But it wouldn’t be good for anyone in the UK.

    As I say, I’m naive so maybe I’ve got it all wrong and those who say quite openly that the UK can ditch the Single Market have more noble aspirations. RT: I think most Brexiteers who think that have honest decent – if nationalist – aspirations. But they hold hopes and dreams which I forecast will flounder on economic realities. But, of course, I may turn out to be wrong… Perhaps there won’t be any signs saying Welcome to Apple Healthcare (obviously not the one that kept the doctor away). I don’t know. I only know that if this does lurk within their minds, all this stuff about years and years of disentanglement and trade deals lies nowhere outside their own personal Overton window.

    RT: Bottom line is that good trade deals require experience, negotiating strength and time. The UK has none of those three and so I would be shocked if we get any good trade deals. We will certainly get some; but I predict they will be good for the other side, not us. David Davis spent then summer reading up on trade law and I think has had a very sobering experience as he slowly realised that things are just a bit more complicated than he thought they would be.

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