Article 50: Will it ever be invoked?

Article 50 is a one way street. Once it is invoked the Member State will leave, either once a withdrawal agreement is reached or after two years, whichever comes sooner. There is scope for this deadline to be extended, by unanimous agreement between Member States, but not on its face for the process to be stopped.

 

This means that as soon as a Member State invokes Article 50, its negotiating position for fixing the new terms of its relationship with the rest of the EU instantly worsens. In two years it will be out with no access to the European single market and trading on the same WTO terms as Yemen. It therefore made no sense for David Cameron to immediately invoke Article 50 after the referendum was lost, and nobody who had thought about it expected him to do so.

 

Mexican Standoff

This has created an impasse. It is not in the UK’s interests to invoke Art 50 before it has a deal, or at least the outline of one. It is also not in the interests of other Member States to negotiate until Article 50 has been invoked, and they have said they will not do so. So what now?

 

Legally, it is for the Member State to invoke Article 50. Nobody can legally force the UK to do so. One, possibly the only, way to in practice do so was to bounce the UK into invoking Article 50 by offering a deal subject to a time limit. “We’ll give you X, Y and Z, but this offer remains open for acceptance by invoking Article 50 only until 1 January.” By refusing to negotiate at all, other Member States have no practical means of applying pressure on the UK to start the process.

 

Outside is Worse

If you are, say, a French negotiator and another State seeks some kind of special deal, who are you more likely to give it to? A Member State of the European Union, or a non-Member State of the European Union?

 

If other Member States wish to see the club of the European Union continue, it is not in their collective interests to give a special deal on free movement to a member who is leaving. Put another way, although the deal Cameron secured struck some as being similar to the re-negotiation  achieved in 1975 by Wilson, that was as good a deal as seems likely to be achieved. A deal struck between parties trying to retain goodwill within the club is going to be better than one struck by the same parties when one has left and the goodwill is gone. There is not going to be a good deal on offer.

 

Inherent Contradiction

In a speech today, John McDonnell called for the UK to have continued access to the European Single Market and an end to Free Movement of Persons. This is incomprehensible. It is like asking for a four sided triangle. Part of what makes the single market a single market is free movement of persons. Without it, it is something else.

 

What did the referendum mean?

One of the central problems with a referendum is that it offers a binary choice, on this occasion In or Out. Within the ‘Out’ camp there were at least two strands. One group wished to regain UK sovereignty, but would wish to retain full access to European markets through the European Economic Area or some other arrangement. For this group, achieving that would mean keeping free movement of persons. The MEP Daniel Hannan would favour that option as it now seems would Boris Johnson MP. For others, regaining control over immigration, but at the cost of losing free access to the European market, was the goal. The Ukip MEP Nigel Farage favoured this option, as we now learn does Michael Gove MP.

 

Now, for most voters, the European Union is a low salience issue, and so it seems possible that for many, possibly a majority, of those who voted to leave, reduction of immigration was the most significant factor. They fell into the second camp. But the gap between Leave and Remain was small: 52%-48%. IF the UK is not to remain in the EU, there is almost certainly a majority both within Parliament and the population at large for an arrangement that keeps the UK within the single market (and thereby retains freedom of movement).

 

Push the Button?

If, as seems very possible, no deal can be reached on acceptable terms whereby the UK remains within the single market but leaves the European Union, what should any British government do? If they opt to leave anyway this would not be to give effect to what the majority of British voters (Remain Plus the Johnson Leavers) probably wanted. Indeed, as they were repeatedly told that a deal could be struck, this was not the basis upon which they voted.

 

Now there are very powerful reasons for respecting the referendum result. I also think there were good reasons why the referendum was held. Given where we are however, I now think there are good reasons for thinking that no acceptable deal will ever be struck, and no responsible government should invoke Article 50. If that is so, we will have a long period of uncertainty, at least until another election, but will not be leaving the EU. At least, not any time soon.

Advertisements

48 thoughts on “Article 50: Will it ever be invoked?

  1. Pingback: Brexit tears | Alex's Archives

  2. An additional wrinkle to this is the statement of the EU trade commissioner that there won’t be any negotiations on a new agreement until the UK has fully left the EU – that is, EEA membership (in whatever form) would only be negotiated after we had left, meaning there would necessarily be an interregnum between leaving the EU and joining the EEA.

    You might dismiss this as the view of one EU official. However, I am struck by the thought that this does not fully contradict the statements of other EU leaders (e.g. “everything is on the table” and so-forth, which also does not mean they would necessarily negotiate EEA membership whilst negotiating leaving the EU) and that this may actually be what will happen if we do invoke Art. 50 (or at least there would be nothing we could do to avoid it). Indeed, they may be trying to tempt Art. 50 being invoked by hinting at flexibility.

    Ultimately, if leaving the EU cannot be achieved without doing something that would be disastrous and massively unpopular, then it may well not happen. Take heart.

    • Yes, I saw that. It is possible to argue that “arragnements for withdrawal” (which is what Art 50 anticipates will be negotiated) and future access to the single market are entirely separate things, but I don’t think that is right myself. so the view that negotiations start after Art 50 is invoked (but before the 2 years is up) seems to me to be the more plausible one. It isn’t in anyone’s interests to pauperise the UK.

      What I am trying to work through is how a decision not to invoke Art 50 may be compatible with the result of the referendum. I think it is possible, indeed probable.

    • It is a common misconception that we would need to apply for EEA membership on leaving the EU (or earlier). We are already a member of the EEA and membership is not contingent on being part of the EU. Were we to join EFTA (who are willing to negotiate with us immediately) there is no reason why our EEA membership should not continue seamlessly when our EU membership lapses, provided we continue to meet the obligations of EEA membership.

      I realise this would not address the core problem of freedom of labour. However it significantly reduces the risks posed by an early trigger of Article 50; the worst case scenario, should we fail to secure a deal after 2 years, is that we fall back into EFTA and continue negotiating from there.

      • I can’t reply to spinninghugo’s post of 3 July directly but would point out that we are currently parties to the EEA agreement and leaving the EU will not change that. In that respect it is freestanding.
        I realise that our status in the EEA would change on leaving the EU, hence the need to join EFTA.

    • Article 50 negotiations will most certainly involve negotiating a settlement for our trading relationship. The idea that we will be forced out to trade under WTO rules alone is for the birds. That would be an unmitigated disaster for the UK and the eurozone; seriously, I don’t think it is widely enough understood what a catastrophe that would be. Here’s an explanation:

      https://thescepticisle.com/2016/04/11/we-need-a-trade-agreement-with-the-eu-we-cannot-trade-under-wto-rules-alone/

      As it stands, the EEA option is on the table. The conditions of which have been laid out, but the idea that there has never been any compromise on freedom of movement is actually wrong. There may be room for compromise on migration management. It seems to be to very much be the case that the EEA option is actually the only option. As a transitional arrangement it is actually rather good.

      I do not think it politically viable at this point to not leave the EU. However, delaying the Article 50 process is clearly sensible. We have no negotiation team, we haven’t set out a clear position, we haven’t got a new government.

    • Don’t you think Hannan’s distinction between free movement of people and free movement of labour opens up a possible compromise between the two main Leave positions? Or is he pipe dreaming?

  3. Interesting. But is it really the case that exit is inevitable once the Article 50 button has been pressed? Could the UK not just refuse a particularly harsh set of terms two years down the line, and choose instead to ‘Remain’?

      • My understanding is that remaining beyond that point would be impossible without the unanimous agreement of the European Council and the member state. We cannot just remain past the 2 year point by our own decision.

        There are some rather horrible practical things a government that truly wanted a deal could do (threatening to deport EU citizens etc.) but inevitably there would be retaliation against British citizens and business. I can’t see any special leverage we would have to demand extension if they didn’t want to give it to us.

        No, Art. 50 TEU would be a time-bomb that would blow up in our faces. No-one would dare activate it without the certainty of getting a deal they knew would work.

    • Once the button has been pressed, exit is automatic after two years. That’s why it would be utterly irresponsible to invoke Article 50 unless you had a good idea – ideally, a binding undertaking – on the deal you were going to get. It’s an asymmetric provision. Currently, the UK has the power. It can sit on its hands and refuse to notify for as long as it likes. As soon as we do so, the 27 have all the power. They sit on their hands and we head towards a deeply unpleasant WTO outcome, basically at their mercy.

      The more you look at it, the more it seems this was not properly thought through because no-one imagined this provision would actually be used.

  4. Canada claims to have negotiated tariff-free trade with the EU for 98% of tariff lines, with an agreement in which “Other benefits include mechanisms for enhanced cooperation with the EU in areas of mutual interest, such as regulatory development and labour mobility. ” http://international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/understanding-comprendre/brief-bref.aspx?lang=eng

    Not sure what a “mechanism for enhanced cooperation on labour mobility” is – but it doesn’t sound like free movement of people.

    One catch of course is that it’s taken 7 years to get to this stage – and it’s only just getting to ratification. Another catch is that Britain will simultaneously have to replace EU agreements with many other nations with fresh bilateral ones. And a catch with that catch is that we don’t have bureaucrats with qualifications or experience of such work in any numbers – because the EU removed the need for them 40 years ago.

  5. McDonnell didn’t ‘call for’ an end to free movement; he said “If Britain leaves the European Union, the free movement of people, of labour, will then come to an end.” Which is a statement of fact. The article you link to includes a tweet from McDonnell correcting someone who made the same mistaken inference, incidentally.

    • Well perhaps you can tell me how it ends but we stay (with access to the single market (of which it is an essential part).

      it also isn’t a ‘statement of fact’. If we left the EU, but joined the EEA (the ‘Norway’ option,) we would still have free movement.

      • I’m not here for an argument about whether McDonnell got the facts right, still less about the detail of Labour policy. The point is that his comment about free movement was a statement of what he thought the consequences of Brexit would be – he didn’t call for it, as you said.

      • I don’t think so. There is no need for free movement to come to an end. We could join the EEA. He was deliberately, and falsely, presenting it as a fait accompli.

  6. I reached a similar conclusion. But while the logic of the stalemate seems pretty compelling, at the same time I am conscious that I may simply be in denial!

    The other concern (as a Remainer) is that the whole argument depends on the UK government acting rationally. I am not sure I would trust Prime Minister Gove not to simply press that button and damn the consequences – that seems to have been his approach to the issue to date. But perhaps the mandarins would be able to put him under sufficient pressure. (Also, I do think the chance of Prime Minister Gove is remote indeed.)

    • I think there is a large risk of a Conservative candidate for leader saying “I’ll invoke Article 50 by X Date” in order to be elected, and then doing so.

      We are in the hands of the Conservative party membership.

  7. A thing I have wondered about is whether to consider a further referendum on what we are negotiating for, before hitting the article 50 button. At present we have only guesswork about what the public want. The only options should be ones that are realistic, so it is probably “part of free market, including freedom of movement” or “outside free market, with government control of immigration”. Should also pass legislation making “making shit up” an offence for any newspaper or politician pushing a view on it.

    A shame we didn’t get that as our first referendum, with two questions, that being the second.

  8. Surely the big risk is political. Come 2018 or whatever the press and 150 MPs saying “set a date for article 50 activation.” And a PM thinking “well if I don’t do it they will replace me with someone who will.” I think the last five years should guard against an assumption that the “responsible” decision will be the chosen decision.

  9. The House of Lords report on the issue of withdrawal came to the conclusion that the decision to withdraw could be reversed:

    “There is nothing in Article 50 formally to prevent a Member State from reversing its decision to withdraw in the course of the withdrawal negotiations. The political consequences of such a change of mind would, though, be substantial.”

    http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeucom/138/13804.htm#_idTextAnchor008

    • Yes. on the face of the text that is just wrong. I can’t even see what the creative interpretation would be. Perhaps the English language version is different from the French?.

  10. The problem with this analysis (with which I agree) is that it doesn’t account for the negative consequences of the referendum which have occurred as a result of the belief, arising out of the referendum, that the UK will leave the EU – or at the very least that there will be a considerable degree of uncertainty in its status in the short and medium term – and which will continue to occur whether or not we in fact do so (at least in the short term).

    The question therefore becomes whether or not the UK can do anything beyond merely not invoking Article 50 to try to reverse or alleviate those consequences. The obvious answer is to have a general election won by a party, or coalition of parties, committed to remaining in the EU, and explicit in their intention to not invoke Article 50 ever. Another way would be to have a second referendum resulting in a remain vote, and a commitment to respect that, though that is less plausible politically. Until one of these things (or some equivalent) happens, we are left in a situation where we get none of the supposed advantages of leaving the EU and many of the disadvantages.

      • This is one of the more interesting questions to arise from the current state of affairs – having very quickly reached an impasse in which A50 may never be triggered, how do we exit this state of limbo? Many senior government figures are absolutely adamant that Brexit will happen, that there is no going back, so why take such a hard line approach when so many commentators and politicians are calling for another referendum or a GE? My view is that this is the strategically clever way to kill off UKIP and sink Farage. The ongoing turbulence will undoubtedly lead in the short term to loss of inward investment, established companies moving operations out of the UK, and within a few months, rising unemployment, tax hikes and so on. Only then, when it really starts to hurt, will the Leave campaigners begin to turn on their leaders and their empty promises of nirvana, and demand another referendum or GE. At this point, with the country spiraling into the abyss, government will offer a way out via one of these routes. Yes damage will have been done, some businesses may have been irretrievably lost, but the situation will be recoverable, and far less damaging than a possible ten year recession that would come with Brexit.

    • Or there is a parliamentary vote on Art. 50 that is lost (as it would be now, at least this is the view of more than one pro-Brexit MP, and given the “We want hot ice” demands currently being put forward presently, it is impossible to imagine there ever being a serious proposal for Art. 50 which would pass a vote), and after a succession of such defeats the plan is shelved. The blame then gets put on the intransigent EU and we all go back to doing what we were doing before (but UKIP wipes out Labour in the North, and probably wins seats of the Tories in the East in 2020).

      A parliamentary vote will almost certainly be necessary before invoking Art. 50, not for legal reasons, but for political ones.

  11. If one accepts the premise that outers voted on immigration and to “stick it to the elites”. You must also take into account rising popular discontent across many of the other 27 members with the state of the EU.

    Even before we start negotiations, discussion or invoke article 50 it is probable that elected individual country leaders may also for the sake of domestic politics become more aligned with “brexit light” (continued access to the single market and some control of free movement) than the single state vision of the Brussels Eurocrats. Indeed Junkers et al may well have to fall on their swords before any meaningful progress is made.

    Now is a time for calm heads which is why I hope the Brexit camp are kept well away from any negotiating team. Else I fear they will get “summit fever” and fail to consider any wider implications of their actions.

  12. I interpret ” Brexit means Brexit as a clear signal to the public we will be leaving for good or ill,the benefits of free trade were part of the campaign and were rejected by the majority in favour of sovereignty and control of borders.Any attempt to shoe in free movement under any guise will be viewed by the majority of leavers as further evidence of the Westminster elite ignoring the wishes of the masses.
    Unfortunately we will all have to live with the consequences of democracy and live to fight another day.

  13. This is a possibly naive question from an American onlooker:

    Israel sends about one-third of its exports to the EU, under a bilateral trade agreement. There is no question of EU membership or free movement of people. The UK sends about 40% of its exports to the rest of the EU. Not a big difference. Aside from vengefulness in Brussels, whats to prevent the UK from playing the same economic role as Israel? (I chose Israel arbitrarily, and not to start a discussion of how they treat the Palestinians. )

    • It is not a naive question. And it is significant that no one has replied to it. In fact, every country has access to the Single Market – with or without tariffs. Negotiating continuing tariff-free trade between the UK and EU just means keeping zero tariffs. If we left the EU with no trade deal our exports would face EU tariffs averaging just 2.4 per cent. The EU–Israel Association Agreement (2000) is an Association Agreement incorporating Free Trade terms. The EU has over 20 of these and more in the pipeline. It also has pure Free Trade agreements. The great unknown is how vindictive the EU will want to be with the UK. This will determine our relationship if any going forward.

  14. Thanks for this – if only Remain had you as part of the team for the referendum.

    On a more serious point, I may be being optimistic here, but it strikes me that the political initiative has moved away from the ‘Leave’ camp since the 24th. Johnson’s political career has imploded, Gove’s prospects of becoming PM are (at least now) almost non-existent, Fox is saying that we don’t need to invoke Article 50 (‘Take Control’, eh?), and May seems to be a front-runner for the leadership.

    The ‘Leave’ side also have problems with explaining away all the consequences that ‘Project Fear’ predicted – economic crisis, the likelihood of recession, the revival of the Scottish independence issue etc – while also providing an excuse for ‘mistakes’ like the promise of £350m extra per week for the NHS. Add to that the divide between the internationalist Leavers and the nativists (as shown by the current Farage v Carswell feud within UKIP), and there is the potential for a political shift.

    The only way Leave can generate any pressure for Article 50 to be invoked is to mobilise support on the streets, and that doesn’t seem to be happening. Leave voters have after all just seen their main advocate, Boris Johnson, run away from the fight. They’ll see the economic and political uncertainty, some of them will fear for their jobs and pensions, some may recognise the scale of the challenges awaiting the UK with BREXIT and acknowledge the fact that their side didn’t have a plan. And I suspect that many will have felt disgust with the outbursts of racism that accompanied the result.

    I know comparisons can be drawn with Scotland after the Indyref, but there are some key contrasts to be noted. The ‘Yes’ camp in Scotland expected to win, they had a plan (even if it was bollocks) for the next step after the anticipated victory, and they were also grouped around a strong political party that had mobilised a base of support to keep the pressure up even after they lost the vote, and also to propel the SNP to its GE2015 success. ‘Leave’ doesn’t have any of this.

    Maybe I’m being a Pangloss here, but the impression I get now is that time is actually on the side of the status quo. Of course, if Leadsom or Gove does make it into No.10 then all bets are off. And heaven help us.

  15. Our additional leverage doesn’t depend on increased good will from France and Germany; it depends on an increased level of threat to their economies, and to the survival of the Euro. One plausible route to the implosion of the Euro would be WTO Brexit leading to EU-wide recession, then the implosion of the Italian banking sector, but I’m sure there are many others. With Eire as a fifth columnist inside the EU camp, and if France and Germany genuinely believe the UK would go through with a no-deal Brexit (which is a very good reason for us to have Gove as PM), a good deal is achievable.

    I would have thought that deal would be something along the lines of single market access with free movement of hired employees (deportable if ever unemployed, no access to any benefits). It’s very possible that France/Germany will act against their own interest; but will Germany really sacrifice the Euro to get revenge?

    • This is precisely the cunning negotiating tactic Syriza tried,

      “Give is what we want or we’ll burn our house down and yours will be full of smoke.”

      It won’t work.

      • Syriza had no cards. Greece represents a negligible percentage of the European economy; and they needed German money to avoid going bankrupt (to put it simplistically).

        The UK negotiating position would be closer to “we’re leaving; please don’t try to burn down both of our houses when we do. If you do attempt to do so, you may find that the damage on your side of the fence is even greater than the damage on ours”. The Germans and French might still choose to light the match, human nature being what it is, but it is a coherent and sensible strategy, which has a fair chance of success.

        All other things being equal, the EU would be able to pretty much dictate terms. With the current state of the Euro, the Italian banking system, the Eurozone economy, the huge black hole in the EU’s budget, Putin menacing Eastern Europe, etc., all other things are far from equal.

      • Jesus, wouldn’t that be great? I’m guessing it’s going to be at least a year of bullshit before we see how ready they are to negotiate. That’s why I want Dominic Cummings to be leading our negotiation – if they’re filling our lives with tiresome bollocks, I want them to be suffering too.

      • First of all thanks for the lucid articles in this blog.

        Some thoughts concerning the negotiation strategies:

        On this site of the channel the the dust is as far from settling as it is on your site. In any case, primary aim in any negotiations will be to keep the EU27 together, IMHO most/all member states would even prefer it to remain the EU28. GB is much needed for the balance in the EU (one stupid saying from a local German politician was “EU will be more Mediterranean and less North Sea” and eastern European countries will miss an important ally against Germany). Many member state leaders will be happy to keep the door open.

        So the strategy will be determined by what poses the smallest threat to the cohesion of the EU27.
        Mainly two such threads are visible in the moment. The domestic electorates will be not amused if the electorate in GB is better off than themselves in the end and other member states should not be encouraged to exit by seeing blackmailing pays off.

        I feel on this patch of the continent much less importance is given to the economic impact. In Germany the figure in circulation is 0.5-0.7% less in economic growth, which I guess would apply if GB falls back to WTO terms. Germany’s absurd trade surplus stems mainly from countries it trades with under WTO terms so there is hope the surplus with GB wouldn’t be decimated too much.

        Anyhow the long term economic damage will be much worse if the whole EU27 breaks up, so the break away of GB will be considered the lesser evil. IMHO from the EU’s point of view it’s a trade off: too good conditions for GB will have negative political impacts, too bad conditions will have negative economic impact.

  16. Pingback: Article 50 Will Be Triggered When Illogic Dictates – Robert Sharp

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s