3 questions MPs should ask before voting for Article 50

Let’s say you are about to buy a house. You receive a call from your solicitor saying that there are three unresolved legal questions relating to the property, any one of which might, at some future date, leave you with significant financial liabilities. Nevertheless, he tells you that he has exchanged contracts anyway because he reckons you’ll probably be able to sort it all out somewhere down the line.

You’d be aghast wouldn’t you? You would definitely try to stop the sale and sack your solicitor. You would probably report him to the Law Society too.

A far-fetched story? Perhaps, but this is pretty much what our elected representatives are about to do to us. They are being asked, in a very short bill, to allow the Prime Minister to trigger Article 50 which will begin the process of the UK’s withdrawal from the European Union.

But there are at least three legal questions about Article 50 to which we don’t yet know the answer.

1 Is Article 50 revocable?

The initial assumption after the Brexit vote was that, once Article 50 had been triggered, the UK would automatically leave the EU after 2 years unless the rest of the EU granted an extension. However, Lord Kerr, the author of Article 50, says that’s not so. This is currently the subject of a legal challenge in the Irish courts which “seeks to establish whether we can unilaterally – ie without the consent of the other 27 member states – withdraw our Article 50 notification.” . Jo Maugham explains the case here. At the moment the UK’s only fallback position if it doesn’t like the deal on offer is to resort to trading under WTO rules. If Article 50 is revocable it gives us the option of changing our minds.

2 Can we negotiate a new trade agreement with the EU before we have left the EU?

The EU trade commissioner, Cecilia Malmstrom, says not. It is, she claims, against EU law for the EU to negotiate a trade deal with one of its own members. The UK must therefore leave the EU completely before any trade deal can be agreed. All that can be negotiated in the two years following Article 50, she argues, is the terms of the separation, covering questions like the relocation of EU agencies based in the UK, the rights of EU and UK citizens, the pension payments of the UK’s EU officials and cross border security arrangements. If she is right, this would mean Britain leaving the EU on or before 31 March 2019 with no trade agreements.

Some lawyers disagree with her interpretation, arguing that there is nothing to preclude trade talks taking place in parallel with the withdrawal agreement. They may well be right but, at the moment, we can’t be sure because none of this has been tested. There will be 27 countries plus the European Commission involved in the negotiations. It only takes someone somewhere to decide that it is in their interests to challenge the legality of the negotiation and the whole process could be delayed. It would be helpful to get an answer to this question before we start.

3 Does leaving the EU automatically take the UK out of the single market?

Again, the general assumption has been that leaving the EU means that the UK leaves the single market too. But here too there is doubt. Some argue that leaving the EU and the European Economic Area are separate acts. To leave the single market, Article 127 of the EEA agreement must be triggered separately. If they are right, this means that, if no agreement is reached after 2 years, the default position is that the UK leaves the EU but remains part of the single market, rather than having to trade under WTO rules. This would give the negotiations a completely different dynamic. Rather than having to rush to conclude a deal, we could all take our time secure in the knowledge that there would be no sudden and severe disruptions to trade. This would give us the transition period. The UK could leave the EU and evolve from the EEA position to a bespoke trade deal over time.

Like Article 50, Article 127 is the subject of a separate legal challenge due to be heard sometime in February.

As yet, no-one can be sure of the legal position on any of these questions. but wouldn’t it make sense to get the answers before triggering Article 50? As Jo says:

No one, acting rationally, chooses to make a momentous decision earlier than they need to and before they have the fullest possible evidential picture before them. A Government driven by the interests of the country should want to preserve its optionality until the last possible minute. Moreover, it is hard to understand why the United Kingdom Government might argue for an outcome that denuded itself of a unilateral right and left it instead at the mercy of the agreement of the other 27 member states.

Imagine a board of directors taking a major decision on the future of a company, like a merger or demerger. If they did so without clarifying the legal position they would be in breach of their fiduciary duty.

Yet this appears to be what our parliament is about to do. It was left to private citizens to establish parliament’s right to vote on leaving the EU and it is being left to private citizens to establish the legal position. It should be our MPs asking these questions. Incredibly, most of them seem happy to vote to trigger Article 50 without having any idea about what it actually does.

If the answers to the above questions are No, No and Yes, then a vote for Article 50 automatically takes us straight to WTO rules. Do not pass GO, do not collect any trade agreements. Most people who know anything about international trade agree that this would be extremely damaging.

Of course, such a scenario may be very unlikely but, at the moment, no-one can be sure. Our MPs certainly can’t. No-one would buy a house if there were legal questions hanging over it yet parliament seems happy to take the most far-reaching decision since the Second World War without being in possession of all the evidence. Surely they should be asking these questions themselves. That’s their job.

People go into politics for all sorts of reasons but most are conscious of the legacies. A parliament which votes for something so critical from a position of wilful ignorance will be judged harshly by history.

Parliaments before the 18th century were often given names, such as the Good Parliament, the Merciless Parliament, the Unlearned Parliament, the Parliament of Devils and my favourite, the Parliament of Bats.

What might historians call this parliament? The Scared Parliament? The Ignorant Parliament? The Clueless Parliament? The Rabbit-in-the-Headlights Parliament? Or perhaps the Parliament of Lemmings, going headlong over a cliff without a clue where it was going to end up.

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16 Responses to 3 questions MPs should ask before voting for Article 50

  1. Richard Moorhead says:

    Jolyon, they might report them to the Law Society but they’d be wrong to. The SRA or the Legal Ombudsman would be the place to report them to. I know this is irrelevant to your post, but I must take my legal services regulation opportunities where I can find them. 🙂

  2. bill40 says:

    I speak as one who is very anti EU but not for Farage type reasons. There are many progressive policies the UK could pursue outside a fundementally neo liberal EU. I am careful of the company I keep and there is no way on earth I will be associated with the lunatics currently (failing) negotiating our exit from the EU. It is so inept I can only assume it’s on purpose.

    Brexit has been made up as they go along, I mean who the hell mention leaving the single market? Or the customs union? Exactly no-one that’s who. To spuriously claim it was obvious, after the event, is mendacity of the highest order.

    I find it strange nobody has commissioned a poll yet measuring current EU attitudes. The lies of both sides turned the referendum into a three ring circus so what do we make of the current situation? Or the threat to turn the UK into a bargain basement tax haven, who in hell voted for that?

    The remoaners are fast winning me over.

    • Dipper says:

      We are negotiating. The threat to walk away from the single market and customs union and make the UK a tax haven is a ploy to show the EU that we don’t have to accept whatever offer they make, that we have alternatives, and those alternatives may weaken their economies.

      I agree with you about making it up along, and the risks of Brexit are real. However, whenever I get worried I just imagine what would be happening if we had voted to Remain. We would be in the process of being forced into a federal state and be stripped of our national rights and independence. The blueprint is here. http://time.com/4637352/guy-verhofstadt-theresa-may-brexit-europe/

      • M. says:

        You are living in cloud cuckoo land if you think the EU are scared of what Britain’s departure will do to them. The respective trade figures between the EU and the UK show that to them it will only be a discomfort in comparison to our outright wounding.

        As for your second paragraph, it’s indicative of the nonsense that floats around the echo chamber that is the Eurosceptic blogosphere.

        • Dipper says:

          “As for your second paragraph, it’s indicative of the nonsense that floats around the echo chamber that is the Eurosceptic blogosphere.”

          Your second paragraph is typical of the determination to avoid looking in any detail at the reality of the EU that floats around the echo chamber that is the Remainers blogosphere.

          It is Guy Verhofstadt in an interview in Time magazine. He is the former prime minister of Belgium, the chief negotiator for the EU and widely tipped to follow Jean-Claude Juncker as EC president. Please point me to the quotation from Merkel or Hollande that says he is talking nonsense.

          Your first paragraph states the EU are in the driving seat. Why would they not force this through? How come we have no power to argue with them about our departure but power to resist them once we have voted to stay?

        • Dipper says:

          … and silence.

          A typical Remain/Leave argument.
          Remainer – this is going to be bad. We should have stayed with our friends in the EU
          Leaver – the EU is not a friendly organisation – look at all these things wrong with it.
          Remainer – you are lying/talking nonsense.
          Leaver – the origin of these lies and nonsense is none other than the EU/EC itself.
          Remainer – silence.

          I feel quite a lot of sympathy with Remainers. You’ve gone all in on the EU, but unfortunately you had no control over the EU and the political power in the EU is now taking it by force in a direction clearly not suitable for the UK. You’ve been the victim of a confidence trick, and now you just look stupid and are panicking.

          The thing to do now is to take the exit that the referendum has provided you with and commit to participating in (re)creating an independent state that embodies liberal values. The thing absolutely not to do is to try to overturn the vote because your side lost, or to take the side of hostile foreign nations against your own country and call for punishment beatings so that you can prove to everyone that you were right and they were wrong. I cannot overemphasise the danger of declaring war on people in your own country. We should all know by now that events have a habit of taking us into places we never thought we’d be, so should all be careful.

          The future is not only largely unknown, it is also undetermined. What happens now really is down to people largely in this country but also elsewhere working to create a better future. Far better to start working to create that better future than trying to justify the mistakes of the past.

  3. Keith says:

    The whole brexit fiasco is a big gamble which if it comes off will produce no net economic gains for the UK. It is amazing how much conflict and controversy, time, money and effort, will have been spent on this issue for exactly zero gain.

    • Dipper says:

      “no net economic gains for the UK”

      The division of the spoils is really quite significant here. Take unlimited immigration from the EU. It has been terrific for some people particularly in metropolitan areas – a healthy economy and a vibrant multi-cultural society, but for others particularly in deprived non-metropolitan areas it has seen direct recruitment from Europe at the expense of work for locals and simultaneous significant pressures on house prices, schools, and hospitals. If Brexit improves the lot of people in deprived areas I guess they will feel it is worth it.

      It is a gamble. I’ve been struck by an interview which I’ve seen repeated with different people in different places, where the interviewer asks a shop-floor worker what they think about the risks of Brexit. They reply that we’ve taken back control and will live with the consequences whatever they are. So implicit in that is that its a gamble and they are ready to take the consequences for better or worse.

  4. Blissex says:

    «Does leaving the EU automatically take the UK out of the single market?»

    I guess only the EUCJ would authoritatively know, but here is a fairly official opinion:

    «Is it possible to become a party to the EEA Agreement without being a member of the EU or EFTA?
    Article 126 of the Agreement on the EEA makes it clear that the EEA Agreement only applies to the territories of the EU, in addition to Iceland, Liechtenstein and Norway. Under the present wording of the EEA Agreement, it is therefore impossible to be a party to the EEA Agreement without being a member of either the EU or EFTA.»

    • Blissex says:

      BTW in my understanding it is actually funnier than the FAQ says. The EEA treaty is worded so that treaty obligations fall on “signatories” (countries) but treaty rights are given to “persons” (physical or corporate) citizens of EU and 3 EFTA states. So on exit from the EU the UK will be bound by the treaty as a signatory, but UK citizens won’t be able to take advantage of its provisions. Of course in practice the outcome is that the EEA treaty won’t be enforced against a signatory that is not an EU or 3-country member…

  5. Dipper says:

    … and here’s a comment from Norway


    clearly the writer has a view, but I have heard this from other Norwegians that being in the EEA is an outcome we should avoid.

    My fear, as a Leaver, is that those who campaigned for Remain are now panicking and trying to hang on to membership in some form, and are going to land us in the worst possible place – still subservient to EU institutions over which we have no influence, and unable to open up new relationships in the outside world.

  6. Pingback: Vote Leave can't hide their responsibility for the Brexit mess | New Statesman Media

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