Andrew Duff -  On Governing Europe

Running Commentary IX

Remainers look for meaning

The second reading debate in the House of Lords (20-21 February) on the Bill to allow Theresa May to pull the trigger on Article 50 turned on whether parliament should insist that the government give it a ‘meaningful’ vote on the outcome of the Article 50 negotiations. Nobody quite nailed what ‘meaningful’ in this context means: parliamentary etiquette does not really admit of any vote being meaningless.

One can distil from the very many speeches on the matter that the staunchest Remainers want to be able to refuse to accept the outcome of the Article 50 negotiations in order to bring down the government and reverse the verdict of the Brexit referendum. Others, less radical, want to be able to vote against whatever the government brings back in order to oblige ministers to return to the negotiating table in Brussels to get a better Brexit deal. This bunch are thrice handicapped, however: (1) because they have no idea what the government will bring back; (2) because there is no evident consensus among Remainers about what a better deal would look like; and (3) because they forget that any second bite of the cherry would require the unanimous agreement of the EU 27.

One peer who carries weight in these matters is John Kerr, former secretary-general of the Convention which drafted the constitutional treaty (later morphed into the Lisbon treaty). Kerr told the Lords that he thought an extension to the two year timetable for the Article 50 process “would certainly be given”. He added: “If having looked into the abyss we were to change our mind about withdrawal we certainly could and no one in Brussels could stop us.”

His testimony was supported by an informal Opinion drawn up by several eminent QCs led by David Edward, former judge at the European Court of Justice, and Francis Jacobs, former advocate-general. They concluded their analysis by asserting that Article 50 does not preclude the UK from: (1) notifying its intention to withdraw from the EU subject to an act of parliament consenting to the terms of the withdrawal agreement; or (2) parliament deciding, having seen the terms of the agreement, to “seek to negotiate different terms if possible and otherwise change its intention to leave” [para. 60].

The way it’s seen in Brussels

I can only say to these gentlemen (who are all my friends) that this is not how the Article 50 process is seen in Brussels. There all we need to know is: (1) that the UK has decided to leave the Union in accordance with its own constitutional requirements – which it has, either by referendum or by parliament or a mixture of both; (2) that Mrs May has carried out her duty as a member of the European Council to notify her colleagues of her country’s intention – which she will, before the end of March.

As soon as Article 50 is invoked the process of negotiation will commence. Article 50(2) gives the EU no discretion in the matter, saying that the “Union shall negotiate and conclude an agreement” with the UK [my emphasis]. We have two years to do this unless the European Council agrees unanimously to extend that period. Why would it?
As far as the EU is concerned, the withdrawal agreement will be enacted in the form of a special law of the Council, after having received the consent of the European Parliament. It will enter into force at a date to be decided as part of the negotiation, which may or may not be exactly two years after the date of Mrs May’s notification. We can be sure, nevertheless, that the awful moment when the Brits shuffle out of the institutions and the Union Jack is lowered at the Berlaymont will be before the date of the scheduled elections to the European Parliament in May 2019.

What happens if there’s no agreement

According to Article 50(3), if no Brexit treaty is agreed between the government and the EU 27, the EU treaties “shall cease to apply” to the UK exactly two years after the prime minister’s notification. In other words, the EU will simply pack its bags and leave the UK.

I believe the same thing will happen if the Westminster parliament rejects a withdrawal agreement that had been reached in good faith by the EU with the British government.

While Kerr and the QCs are certainly correct in surmising that the UK could seek to revoke Article 50, whether or not they would thereby succeed in keeping the UK as a member state of the EU would depend entirely on the goodwill of the European Council. That goodwill may not be there.

It is fairly clear that once the European Parliament and Council have enacted the Article 50 agreement in terms of EU law, it will be too late for the UK to turn back. So any attempt at revocation must come early; and it must be constitutional; and a prodigal UK government must be able to reassure the EU 27 that the revocation is the settled will of the British people and parliament and that the UK will henceforward be a better behaved European state.

I have my doubts.

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