Andrew Duff -  On Governing Europe

In London everyone is agitated about how to trigger Article 50. Proceedings continue in the English High Court on whether the government needs the consent of parliament before it triggers Article 50.

It should surprise nobody that the EU dimension is largely absent from the London courtroom. Nobody mentions that Theresa May, in her capacity as a member of the European Council, has the duty to notify her colleagues of what they have already read in the newspapers — namely, that the UK has decided to leave the EU.

Plaintiffs in the case persist in missing the point that the invocation of Article 50 in itself does not extricate the UK from its rights and obligations under EU law; neither will it deprive the Westminster parliament of its rights of scrutiny over the Brexit process; nor does it extinguish the right of the UK parliament to give or deny its consent to any eventual Brexit deal.

The outcome of the litigation is of some academic interest, but the material result is clear: one way or other, either an administrative decision of the prime minister or a vote in the House of Commons will start the formal Brexit procedures before the end of March next year.

In Brussels, meanwhile, people are rightly more concerned about how an Article 50 withdrawal agreement will be concluded early in 2019. I have written at some length about Article 50 — most recently for Policy Network on the possibility of a new association agreement between Britain and Europe. Today I try to spell out in greater detail how the Article 50 negotiations might be concluded by its two parties.

Article 50 has a different status in London and Brussels

As far as the European Union is concerned, the Article 50 agreement will be decided by the Council, with the votes of at least 20 of the 27 member states, on the recommendation of the Commission and after a vote in the European Parliament by simple majority (including the residue of British MEPs). If any one of those three elements is missing, there will be no agreement and exactly two years from the invocation of the Article the EU treaties will simply cease to apply to the UK.

Presuming, nevertheless, that the Council will reach a decision to bid the UK farewell on the basis of a mutually acceptable package, how the EU’s 27 states then deal with the matter internally is irrelevant: no one state or combination of states can block its entry into force. Article 50 treats the secession of a member state by way of a special organic law having direct effect. The Council’s decision will not be subject to national ratification.

In the UK, however, the Article 50 agreement will be treated exactly like an ordinary international treaty – in effect, reversing Britain’s original EC accession treaty of 1972. Under the provisions of the Constitutional Reform and Governance Act 2010, the document will be laid before both Houses of Parliament. For there to be a vote, somebody will have to table a negative resolution. The government, which controls the Commons’ agenda, should decide to give the proposed resolution time for debate and vote.

The Commons’ Speaker will need to rule that the agreement does not fall foul of section 25(2) of the 2010 Act which restricts the operation of the special negative vote procedure to measures which are not “a regulation, rule, measure, decision or similar instrument made under [the EU] treaty (other than one that amends or replaces the treaty (in whole or in part)”. The purpose of that provision was to prevent the British parliament from obstructing the passage of ordinary EU law.

So the government will be keen to establish beyond doubt the character of the Article 50 agreement as a treaty in terms of international law despite the fact that the same measure is seen and treated rather differently in Brussels.

The scope of the Article 50 agreement

While it is true that the main purpose of Article 50 is to deal with the technical extraction of the UK from its rights and obligations of EU membership, it may also include a statement about the framework of the future relationship between the UK and the EU.

Here the negotiators face a dilemma. Without a prospective agreement on what should happen next, the Article 50 negotiations are likely to collapse in acrimony. It will be much easier to conclude the agreement if a consensus emerges during the negotiation on the nature of that future relationship.

However, if the Article 50 deal strays too far beyond technical secession and becomes a portmanteau treaty weighing on the substance of a continuing future relationship, the agreement might fall foul of the constraints of the 2010 Act, provoking calls in Britain for an act of parliament (that could be amended) or, worse, for a second referendum.

Only if the agreement clears all these hurdles will it be laid before parliament at Westminster. Then, each House has 21 ‘sitting’ days to vote against it, acting by simple majority.

If the House of Lords rejects the treaty, the government, after explaining again why it intends to do so, can still proceed with ratification. If the House of Commons rejects the treaty the procedure is delayed for another 21 days, after which the government can re-table it. If the Commons votes rejection for a second time, the treaty falls and there will be no Brexit — or at least no legal Brexit according to the EU treaty.

It’s politics, stupid

Debate among lawyers continues about whether the UK could change its mind and alter course during the Article 50 negotiations within the two year period. As I have argued previously, indeed it could. Invoking Article 50 is not leaving the EU but only the start of an exit process. Intentions change.

Although Article 50 is silent on the issue of revocation, it is a characteristic of EU law – a common law system, after all – that what is not prohibited by treaty is permitted. And the main aim of the European Union is integration (‘ever closer union’) not disintegration. Withdrawal of the notification of intention to leave the Union would have to come wrapped in apologies, but it would be accepted by consensus — that is, a relaxed form of unanimity — by the European Council (‘sincere cooperation’). Donald Tusk, President of the European Council, confirmed as much at his conference with the European Policy Centre on 13 October.

In the High Court hearing of the case against the prime minister’s exclusive use of the royal prerogative, the Lord Chief Justice indicates that he regards the question of the irrevocability of the Article 50 notification as important. He has the option of making a reference to the European Court of Justice for a preliminary opinion on the matter (Article 267 TFEU), although he will be aware of the risk of exacerbating and prolonging the constitutional and political chaos. As things stand, the High Court is expected to make its Article 50 ruling in mid-November, opening the possibility for either side to make an appeal to Britain’s Supreme Court.

Labour’s big moment?

It is not too early to speculate on whether the Commons will be minded to vote down the Article 50 agreement once they have seen it. After all, the deal is bound to leave many dissatisfied on both sides of the Brexit debate. All political parties will be divided (apart from the Greens and UKIP, who have only one MP each). The SNP, which alone voted against the holding of the In/Out referendum, may be expected to oppose the government’s Brexit deal. A handful of Europhile MPs from the other parties will doubtless join them.

One notes that the current operative composition of the Commons is Conservative 330, Labour 231, SNP 54, Others 30.
So the brunt of the responsibility for a vote to reject the Brexit agreement will lie with the Labour party, most of whose MPs sit for constituencies which voted on 23 June to leave the EU. Therefore, unless the Tory party splits asunder and takes a kamikaze leap, a negative vote against the Article 50 agreement is most unlikely to materialise.

Everyone knows that defeat of the Article 50 agreement at Westminster would cause political upheaval in London and Brussels. The government would be on the brink of resignation. On the other hand, Theresa May could decide simply to renege on the UK’s EU commitments, accept the country’s immediate departure from the EU, and lead the descent into the cold clutches of the WTO.

In any case, remote as the possibility is, what would the EU 27 do if Britain proves itself incapable of completing its withdrawal from the Union? The European Council could decide to stop the clock and invite the British parties to sort out their country sharpish. But faced with its own rising constitutional crisis, the EU 27, by then mightily tired of British shenanigans, would be more than likely to let the guillotine fall exactly two years after it had first been invoked.

The improbability of an early election

The fall of a second prime minister within the same parliamentary mandate could be expected in normal circumstances to trigger a general election. Here, however, another recent constitutional measure enters the scene.

Under the terms of the Fixed-Term Parliaments Act 2011 the next general election is scheduled only for 7 May 2020. An early dissolution of parliament is no longer at the whim of the resigning prime minister. Triggering a premature general election requires either a vote of at least two-thirds of the whole House of Commons or a vote, by simple majority, of no confidence in the government (if not reversed within 14 days). An early general election is therefore impossible without the complicity of the Labour party whose position in the polls looks decidedly precarious. Seldom has the official opposition party been less prepared to fight an election.

The EU will be watching closely how the mood of MPs changes, on all sides of the House, during the Article 50 negotiations. But it’s wise to hedge your Brexit bets.

The honest truth is that nobody quite knows where and how the Brexit gamble will end. But then nobody knows quite when, how or why it ever started in the first place.

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