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.
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.