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

  1. Auld Nick says:

    The Kamikaze Parliament.

  2. Dave Timoney says:

    Given that one MP has been assassinated, the tabloids have characterised sceptics as “enemies of the people” and the broadsheets/BBC seem determined to use the issue to break Labour, I think The Fearful Parliament would be appropriate. (Also, as I’m sure you know, the Lemming death wish is a myth).

  3. Dipper says:

    … and your proposal is what?

    Guy Verhofstadt has made it clear he sees a Federal Europe with the UK a state join that federation (http://time.com/4637352/guy-verhofstadt-theresa-may-brexit-europe/). These euro politicians such as Verhofstadt and Juncker are going to impose this on Europe come hell or high water, and I don’t see anyone capable of stopping them. They showed their respect for the UK by giving us absolutely nothing in the renegotiation. Your argument is that this fate, losing all control over the basic functions of statehood, is inevitable? Or are you going to somehow “reform” the EU despite Juncker saying this wouldn’t happen?

    It is easy to say the current situation is shambolic, fraught with risk. What you haven’t done is demonstrate that there is any alternative to this process that doesn’t lead to the destruction of the UK as an independent self-governing state that makes its own laws and controls its own borders.

    It is worth reading all of this lengthy piece http://blogs.spectator.co.uk/2017/01/dominic-cummings-brexit-referendum-won/, particularly the bit about focus groups and immigration.

    People who argue that there is no alternative to staying in the EU are playing with matches in a fireworks warehouse. When legitimate concerns of people about how they are governed and who represents them are dismissed by the mainstream parties, populists, nationalists, and facists move in.

    • Rick says:

      Dipper, just talk me through the process by which the UK could become part of a federal European state. Explain to me how that would happen.

      • Dipper says:

        If you had said ten/fifteen years ago “explain how we lose control of the right to decide who enters the country” I couldn’t have given you an answer, but here we are.

        It goes something like this. The European parliament passes a vote bringing in institutions, the commission and parliament starts sanctions against nations not signing up, start withdrawing rights and funding for nations not participating, the European courts start siding against us for not participating and supports the sanctions, the UK parliament decides to go along with integration because the alternative is economic punishment and isolation.

        There has been suggestion UK banks will not have access to Euros directly if we leave the EU and this is one benefit of staying. Prior to the referendum it was suggested that the UK would lose access unless we adopted the Euro, so the kind of threats we are being subjected to know for leaving the EU would have been made to us for not singing up the federal state.

      • Dipper says:

        I think a lot of journalists and commentators don’t understand the nature of power. Perhaps you have never been through a takeover and seen how it operates.

        Journalist/academic/consultant types get lots of opportunities to increase their power and influence. Lots of reports, papers, articles. You take lots of small gambles to build a position, never needing to take a big risk.

        Heads of government, CEO’s have one chance only, so they have to go all in and be absolutely ruthless. As a CEO told a friend of mine when he was firing him ‘I only get one shot at this. I can’t afford to have you and X fighting. So you’re going.”

        People like Juncker and Verhofstadt get one chance to write their names in history. They will throw absolutely everything they have at it, and be ruthless with dissenters. Just see what they have done to Greece.

  4. Jim says:

    A longer version of ‘Its all very complicated so we better stay in the EU, regardless of which way the vote went’.

    Which bit of ‘We voted to leave the EU’ don’t you get? Do you think for there would have been a milliseconds consideration given after a Remain vote as to exactly what form the EU might take in the future and how the UK would fit into that, or whether what it might become would be in our best interests? Of course not, we’d have been told ‘You voted to Remain, so here’s the blueprint for a United States of Europe that we already prepared, thats what you’re getting, bend over.’

    • Dipper says:

      exactly. Well said Jim.

    • Rick says:

      Jim, it looks from this as though you are the one who can’t deal with complexity. You cling to a silly little soundbite “Which bit of ‘We voted to leave the EU’ don’t you get?” even though it’s totally irrelevant to this argument. I haven’t suggested we don’t leave, I’ve just said we need a lot of questions answering before we do. These questions are actually quite clear.

      As for the ‘what form the EU might take in the future’ this is paranoid nonsense. There is no way the UK can be forced to participate in anything that it doesn’t agree with. We have opt outs from any form of further integration and if the EU ever did become something we didn’t like we could always leave.

      • Dipper says:

        “if the EU ever did become something we didn’t like we could always leave.”

        and here we are.

      • Jim says:

        “a silly little soundbite “Which bit of ‘We voted to leave the EU’ don’t you get?” even though it’s totally irrelevant to this argument.”

        Ah, the perennial call of the leftist democrat – the vote is irrelevant. The true colours reveal themselves.

        We are leaving, no Single Market, no Free Movement, no Customs Union, nada. Get used to it petal.

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