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.
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.
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.