Article 50 is not the only or the best way to leave

Now that the invocation of Article 50 is imminent, I thought I would reflect on how we managed, as a country, to gain such momentum for such a bad way of leaving the EU.

Firstly, it should be understood that before Article 50 was agreed, it was not impossible to leave the EU. Greenland did so, by agreement, and without that agreement being subject to an arbitrary one-sided deadline. The point of agreeing Article 50 was not to make it possible to leave, but to make it harder. Article 50, like Trident, is not meant to be used; that is not what it is for.

Before the referendum David Cameron did promise that a Leave vote would result in immediate invocation of Article 50. It didn’t – the government has had 9 months instead to come up with a plan. Not that that seems enough. Other countries will not negotiate before invocation because “that is the procedure”, and, more to the point, as soon as we invoke, they have us over a barrel.

It is a little quaint for Theresa May to claim that any challenge to her Brexit priorities, weakens her position, when she is about to catastrophically weaken her own position by invoking Article 50, and starting a clock which the other side can stop and we can’t.

Why is this so weak? Fundamentally this sort of negotiation is about arriving at an agreement that suits both sides better than no deal. It is a positive-sum game, in which the value of that positive sum is shared between the two parties. Each side will try for a larger share of that value, of course, and has the leverage of threatening ‘no deal’. In that game you are in a much weaker position if the other side can wait you out (due to a 2 year deadline they can extend and you can’t) and you can’t do the same to them.

Before the referendum, Michael Gove was arguing at one point that a leave vote, should not lead to article 50 but that we should give the EU a chance to come back with a better offer to remain. Why? Because article 50 is no way to get anything you want. What has changed? Only the momentum. (No, not that Momentum, they never change.)

So what is the alternative? Contrary to popular myth, the EU is not an organisation that rules over national governments. The reverse is true. The national governments that make up the EU can, and often do (much to the annoyance of European Parliament) ignore EU procedures and agree between them whatever it is they want. It’s a feature of them being undiluted sovereign governments. Article 50 only has the standing that the national governments want it to have.

Now John Major – I forget when or why – went through a period of vetoing everything that came to the European Council until he got what he wanted. It was a petty move at the time, but it demonstrates that a degree of consent is essential for the EU to function. It would never benefit from trying to keep a member prisoner. I don’t even need to suggest dishonouring treaty obligations, though of course a sovereign nation like ourselves could do that and find itself outside the EU very rapidly.

No, the point is that if a member wishes to leave, agreement is in everbody’s interest, Article 50 or no. The point of Article 50 is to load that agreement against the leaving member. Remind me why we’re about to invoke it?

* Joe Otten was the candidate for Sheffield Heeley in June 2017, is a councillor in Sheffield and is Tuesday editor of Liberal Democrat Voice.

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18 Comments

  • Little Jackie Paper 14th Mar '17 - 8:49am

    It is worth pointing out that the EU institutions appear to have envisaged informal advance negotiations ahead of an A50 notice – see p3

    http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf

    I was very surprised that the EU countries did not want to discuss the final status of those who have moved. If I were to put what my Hungarian friend thinks about that up here I expect LDV would ban me for life.

    To be honest Mr Otten I’m not sure what your argument is here. Taken to its extreme you could be read as suggesting that an important Treaty provision was so badly written that the agreement should never have been signed. I simply do not buy this argument that A50 is not meant to be used. Why else would it be there if not to allow a state to leave?

    Are you saying that you agree with Gove that the EU could come back with another renegotiation offer? I don’t think anyone ever took that seriously.

    Are you saying that you think that it is impossible to negotiate a deal of some sort? That Treaty does seem to envisage some form of agreement and presumably you are not endorsing the EU breaching that?

    If you are thinking something other than A50, what are you thinking? You may very well have a great idea, just I don’t think this article tells me what it is.

  • Bill le Breton 14th Mar '17 - 8:52am

    Quite right, Joe. Triggering A50 hands the initiative to the 27. Before triggering, the leaver could do the stalling, following the trigger the 27 can do the stalling.

    One supposes that HMG just thought it couldn’t withstand the pressure that would have come from Leavers and Remainers had it tried to hold out longer than 31st March 2017.

    But this highlights an important issue; what is good negotiation is often poor politics.

    What is responsible behaviour now?

  • Difficult to agree with you on this one, the only thing that the 27 have on their side is the clock and being able to reset it. It’s within each others best interests to come to a good positive agreement. If we decide to just walk away we lose the possibility of having a good trading relationship with the EU. If they decide to walk away (or push us as the case might be) they suddenly find themselves with a gaping hole in their budget.

    Yes the are other ways of leaving, or getting forced out, but the whole idea of Article 50 is to allow a nation to leave on good terms with the EU instead of blowing everything up and giving them the middle finger as they walk away.

    It worries me that the writer appears to be in politics but seems to lack the basic understanding that politics is about compromise not throwing your toys out the pram and hoping everyone forgives you and gives you sweets.

  • Little Jackie Paper 14th Mar '17 - 9:13am

    Bill le Breton – ‘What is responsible behaviour now?’

    To my mind the question there is would a majority of voters (as distinct from REMAINers or LEAVERs per se) vote for an EEA or EFTA option? Most REMAINers at the referendum didn’t seem to like that idea for reasons that, I admit, were not entirely clear to me. Certainly some eurosceptics have talked about a Norway option in the past. Christopher Booker has banged that drum for decades, but obviously some were far more hardline. I really don’t know.

    One thing I would perhaps dispute however. You say, ‘the 27 can do the stalling.’ True – but the Treaty does seem to envisage an agreement and that surely implies a good-faith negotiation?

  • William Ross 14th Mar '17 - 10:40am

    Joe

    The reason we are about to invoke Article 50 is that the Lisbon Treaty ( remember that significant constitutional change nobody asked us about) provides that this is the legal way to exit the EU.

    Its time you got over your trauma.

  • No-one seems to be paying attention to the fact that a Brit, Lord Kerr of Kinlochard, drafted Art 50. He may be a Europhile, but what he was thinking when he drafted it to be so adverse to a leaving country, when he knew the country most likely to ever use it was his own, is beyond me. He has done his country a significant disservice. Surely he should be asked questions by the Brexit Select committee.

  • Sue Sutherland 14th Mar '17 - 1:19pm

    Please don’t get over your trauma Joe! I think we have to carry on fighting our corner as one disaster follows another and anger is a useful reaction to trauma. We now face the very real prospect of the breakup of our nation as we know it and all May can do is hector Sturgeon for playing games. With an attitude like hers we aren’t going to come out of any negotiation smiling.

  • @William – “the Lisbon Treaty ( remember that significant constitutional change nobody asked us about) ” That a sovereign Westminster meekly did as the Executive wanted and allowed it to pass into law; just as it has done with the Brexit bill…

    I suggest it is clear that reform of Westminster is necessary and long over due. However, the nature of the reform isn’t about voting methods, or whether the HoL should or shouldn’t be elected; but whether Members are actually prepared to do the job they have been appointed to and which we expect them to do.

  • @Annabel – I think as Lord Kerr of Kinlochard hails from Scotland, he was probably being loyal to Scotland, unfortunately, in drafting Article 50, he obviously under-estimated the English and Westminster’s desire to feel the fear and do it anyway…

  • Mark Goodrich 14th Mar '17 - 1:49pm

    I agree with all of this other than Article 50 *might* not set an irrevocable deadline running. The government could revoke its notification and it is an open question whether we could then stay in (at least until the Irish court case on the topic is heard). The lunacy is that the option of revoking the notification is also ruled out by the Government which as Joe says, puts us in a desperately (and unnecessarily) weak position since our BATNA becomes car-crash / no-deal Brexit.

    (BATNA = Best Alternative to a Negotiated Agreement = key concept in any negotiation).

  • Little Jackie Paper 14th Mar '17 - 1:59pm

    Mark Goodrich – I agree that A50 can be revoked, but I can see why the government would indicate a wish not to do so. For me there is a basic question of good faith here. There is nothing on the face of the treaty to prevent a member state invoking A50 and using it as a sort of weapon, creating instability for the EU as an attempt to get a better deal. Saying upfront that the intention is not to use A50 notification as a tool to get a better deal is a way to put at least some certainty into this.

    More generally the point I think everyone here is getting at is that A50 really is not fit for purpose. If there is an acceptance that a state can leave (and that surely is the purpose of A50) then it follows that it is in everyone’s interests for that process to be orderly. I do take Mr Otten’s point, however absent legal footing I don’t see how any exit can be orderly.

  • Art 50 is the only way for a member state to leave the EU under EU law. Its existence means that the example of Greenland is now redundant (and Greenland it should be pointed out was never a member state but rather a “region” (for want of a better phrase) of a member state which continued on as a full member state).

    Nor is it correct to claim that member states ignore EU procedures since, as they have written constitutions, such actions would immediately be challengeable in the courts of each and every member state, never mind the ECJ itself.

  • Toby Fenwick 14th Mar '17 - 9:56pm

    Joe – I think that this fails in international law. The Vienna Convention on the Laws of Treaties specifies how to leave Treaties which lack an overt mechanism for departure. But Lisbon (Rome as amended) is not one of these, and that means Art 50.

  • grahame lamb 15th Mar '17 - 8:18am

    Bill le Bretton asks: “what is responsible behaviour now?” A fair question.

    I say (as I would say to Paddy Ashdown who strongly supported the Lords’ first decision) that the people have spoken. As Lord Randolph Churchill said: trust the people. The people have spoken.

    Leave the EU we must. And leave the EU we will.

  • Hi Sue – are you suggesting that if the EU throws TM a hard ball (very likely) she should just smile and accept it? I’d prefer a feisty PM prepared to stand up for the UK and get the best possible deal for our country as a whole.

    TM could do without a fight on the home front as well but unfortunately Sturgeon, Salmond and the SNP are hell bent on securing their vision of an independence at any cost to Scotland or the rest of the UK. It will not be TM who breaks up the Union.

  • @Pat & Sue – re: if the EU throws TM a hard ball (very likely) she should just smile and accept it?

    I think there is no doubt the EU will, to the rose tinted glass’s wearing Brexit fanatics, throw TM a hard ball. Unfortunately for them (the Brexit fanatics) the ‘hard ball’ will be simple truths that the Bexiteer’s refuse to see and acknowledge. So TM will have a simple choice smile and accept or show herself up to be a spoilt child, given it is her government who initiated the Article 50 exit negotiations…

    In the coming years, we can expect to see much media space and time taken up with Brexit fanatic’s rallying cries and moanings about how unfair etc. the EU are being, to ‘plucky’ Britian…

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