Are We Still Married? The UK, the EU & Article 50
By Dr Harry Hagopian, Public International Lawyer
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
John Kerr, or Lord Kerr of Kinlochard to be more formal, served as Britain’s Permanent Representative to the EU from 1990-1995, as UK Ambassador to the USA from 1995-1997, and as Permanent Secretary of the Foreign Office from 1997-2002. In 2002-2003, he acted as Secretary-General of the European Constitutional Convention.
In this latest capacity, John Kerr was key in drafting Article 50 of the Lisbon Treaty - 261 words split into 5 sections - that came into force in 2009 and that PM Theresa May applied on 29 March 2017. The explanation given to the man on the Clapham omnibus was that this letter triggered the countdown toward the withdrawal of the UK from the EU within two years - in other words, on 29 March 2019. The other impression also given by some politicians was that this letter was conclusive and foreclosed any option for future membership or for a later change of intention or course by the UK.
As things moved on, and the stumbling obstacles multiplied, the deadline of 29 March 2019 has become almost irrelevant since many people acknowledge that any real divorce would take far longer. But this realisation pales into insignificance in view of Lord Kerr’s recent suggestions that Theresa May’s letter was only a notification of the UK ‘intention’ to withdraw from the EU. Intentions can change, he stated, and the UK still retains all the rights of a member-state.
In fact, Lord Kerr adumbrated the idea that the UK and the EU remain married so long as the divorce talks are ongoing. In other words, reconciliation is still possible till the last day. In his opinion, Article 50 requires the parties to negotiate the ‘arrangements’ for withdrawal, and the British people can therefore change their mind at any stage during the process.
I can well imagine the raw anger felt by some staunch “Brexiteers” who will have considered Lord Kerr’s statements as another scene in a dark plot choreographed by ardent “Remainers” who simply cannot accept that the British people had spoken in the referendum on 23 June 2016 and had opted to pull out of the EU Club of 28. But is it so?
I beg to disagree with this adamant come-hell-or-high-water ideology. I recall my earlier days as a lawyer when couples consulted me in order to initiate divorce proceedings. It was my duty to explore their respective intentions and also to advise them on the consequences of divorce - for them personally, but equally importantly for their children and holdings. In fact, there also was an obligation imposed by [the then] Lord Chancellor to try mediation before the competent courts granted both parties the decrees nisi and absolute. I would argue that the same applies to Article 50. But how?
The government in my opinion is in some panic about the way the talks are proceeding in Brussels. It is also wary of the real intentions of a majority of Members in the House of Commons let alone of Peers in the House of Lords. Hence, the legislation being sought to transpose EU rules and regulations into UK law to ensure a smooth exit from the bloc will also rely in part on the so-called Henry VIII powers which date back to the Statute of Proclamations of 1539. These would allow ministers to amend the Bill without the need for secondary legislation. No wonder MP’s fear that sweeping changes could be made by the Government without any real input by them.
I do not wish HM Government to do a volte-face and declare that it is ditching its plans to exit the EU. That would not only be deemed anti-democratic and akin to political suicide by any government, it would also create unacceptable civil unrest in the UK. Nor am I convinced that a second referendum is an answer since the average voter will not be any wiser of the new package deal than s/he was of the ‘facts’ behind the first referendum. Politicians spin and dissimulate at will.
However, I have heard many business leaders, journalists, think-tank researchers and lawyers warning the UK of the dire economic and human consequences of a cliff-edge or “hard” exit from the EU. I am truly uneasy about the outraged - and at times self-righteous - expostulations by Brexiteers who claim that that there is no scope for a rethink or a pause. Did I for instance not read recently that the Foreign Minister is slowing down the talks in Brussels because he thinks the negotiators might hand out too many ‘concessions’ to Brussels? Did he and the Environment Minister Michael Gove not send a memo to the Prime Minister entitled “EU Exit - Next Steps” that attempts to strong-arm her toward their own ambitions? And did we not also learn that PM Theresa May aims to make it even harder to reverse Article 50 by amending the EU Withdrawal Bill with the addition of a set departure time of 11 PM GMT to the date of 29 March 2019?
Let me add an admission here. There is no clear legal answer to the reversibility or otherwise of Article 50. The only attempt I am aware of that sought jurisprudence on this issue was led by a London-based lawyer, Jolyon Maugham, who filed a lawsuit in an Irish court. But he withdrew the suit after opposition from the Irish government and the unlikelihood that it would make it to the European Court of Justice - the only legal body that can answer the question definitively.
However, given Lord Kerr’s viewpoint about the reversibility of Article 50, and also in view of the cleaving polarisation within British society between those who are scandalised by our exit from the EU and those who would not budge on it, I suggest a compromise that might satisfy a majority of the British populace who are pragmatists rather than ideologues.
What if the UK Government informs the EU that it is willing to pause (not stop) the Brexit dealings and re-negotiate in good faith with Brussels on a new package that addresses some of the fears the British people purportedly harbour whilst still retaining membership of this Club in the interim period? After all, the past year has jolted both the UK and the the EU and both sides might witness a new epiphany by daring to think outside the box. Let us be honest and aver that our former prime minister failed miserably in his negotiations with Brussels - and mutatis mutandis Brussels with him - and therefore came up with the referendum in a moment of unjustified self-confidence. With both sides having felt the anxieties of the talks in Brussels, let alone the uncertainties and ructions they are producing, could we not try this option? What do we lose if we can get a better trade deal without leaving the EU and as such without forfeiting all the other benefits of membership - especially for the future of our younger generations who were in their majority against Brexit in the first place?
Nevertheless, such a bold decision requires an equally bold leadership. It requires the political flair and muscular political will to move forward. Alas, the Government is deeply fractured and the Opposition is intellectually incoherent. Both often seem rudderless if not also clueless. So the ship of state drifts whilst ministers define unreachable goals and we all - Brexiteers as much as Remainers - grapple with the unknown. Is it in the public interest of this country to do this when wisdom would dictate that we should not cater to the aims of the fringes from both sides of the Brexit argument but bolster instead the interests of the majority of the British people? After all, the bottom line about Article 50 suggests that the answer remains unswervingly political and not strictly legal.
At the talk organised by Open Britain, Lord Kerr made an apt analogy with marriage. Might I also add that his staid talk threw a cat amongst the pigeons. Yet, given the flaccid stature and painful solipsism of our political masters, no matter the positions they hold, it might well be the cat and not the pigeons that will dash out of the coop!
Dr Harry Hagopian is a Public International Lawyer, Advisor on the MENA & Gulf regions and Consultant to OTS Solicitors. This piece reflects his personal views and not necessarily those of OTS Solicitors.