Andrew Duff -  On Governing Europe

Running Commentary XIV

The wheels are starting to fall off


Some thing important is happening to the Article 50 process, and it’s not good. The EU side seems well prepared to start the first formal session of the negotiations with the British on 19 June, but its stance is constrained by tight guidelines from the European Council and inflexible directives for the Commission’s mandate — compounded by an unhealthy fascination with rigid procedures.
The UK side, on the other hand, is in disarray: the Tories have stoked up the nationalistic rhetoric in the general election campaign, while none of the political parties have been able to advance a coherent or comprehensive prospectus for the UK after it leaves the EU. To this extent, therefore, holding the election may prove to have been a waste of time and energy — especially if Mrs May fails to accrue a large majority of loyalist ‘pro-Article 50’ Tory MPs to face down the crazy guys.


I have written a longer piece for the European Policy Centre in which I predict that, if things go on like this, the talks will collapse quite early on. The EU must realise that it cannot treat the UK like an ex-colony and the UK must show greater respect for the constitutional order of the EU from which it is trying to escape.

The British have blundered into a maze which is Article 50 and need help to find their way out.


It is in the interest of both sides to try to define together the framework for Britain’s future relationship. They would be well advised to set up a joint transition authority to manage the Brexit process and to prepare for the accord on the new ‘deep and special partnership’ which Theresa May says she wants.


If neither side adjusts its diametrically opposed position in order to accommodate the other, the Article 50 talks will collapse and the EU will simply withdraw from the UK on 30 March 2019 without a negotiated settlement. Then we will really need a Plan B. Thinking about that contingency now will do wonders to concentrate the mind.


Unequal treaty


Ex-ECJ judge Franklin Dehousse (@FrDe2059) launches an excoriating attack on the imperious way the EU approaches Brexit. “Article 50 was invented, after all, to show that the EU is not a prison”. He warns that attempting to impose the jurisdiction of the European Court of Justice on the UK post-Brexit is doomed to failure, and that the ECJ would be better put to use concentrating on its core tasks. Dehousse likens the EU’s approach to that of the British in China in the 19th century when they imposed unequal treaties on the Qing dynasty. Read him at the Egmont Institute here.


No turning back


Ex-MEP Brendan Donnelly, for the Federal Trust (@FedTrust), is also very pessimistic about the present state of Brexit play, and in particular the way the Conservative party has compounded the UK’s difficulties during the general election. “The UK’s negotiating partners emphatically do not share the British government’s self-congratulatory assessment of the relative negotiating positions of the two parties.” Donnelly warns that the new parliament may be wholly unprepared for the failure of Article 50 process and the prospect of a non-negotiated Brexit.

Whatever the outcome of the British general election next Thursday it will entrench the decision taken by the British people last year to leave the EU.

Many Remainers who hoped that the decision could somehow be challenged or even reversed in the courts are doomed to disappointment.


The latest setback is the end of the case taken by Jolyon Maugham QC to the Irish High Court seeking a reference to the European Court of Justice under Article 267 TFEU for an opinion on the issue of the revocability of Article 50. The Irish were clearly reluctant to get involved in such an Anglo controversy — but the cost and timing of continuing with the litigation seem to have been decisive factors on the pulling of the plug. More via Twitter, of course, @JolyonMaugham.



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