Article 50 emerged 15 years ago, in a convention of 200 parliamentarians from all the countries who then were members of, or were then negotiating to join, the EU. I was their Secretary-General.
One of their concerns was to demonstrate that the Union was a voluntary partnership of sovereign nation-states, based on treaties between states, not the incipient superstate of Eurosceptic nightmares. Including an article setting out a procedure for orderly divorce was one of several ways of underlining the voluntary nature of the Union. Though we called our product a Constitutional Treaty, I can’t recall anyone suggesting adding any ‘We, the People…’ claim to a legitimacy going over the heads of elected national governments.
Nor do I remember any serious opposition to the idea, enshrined in the Lisbon Treaty in what became Article 50, that nation-states were entitled to change their minds, and leave if they so choose. Equally I’m certain no one dreamed that in 2017 a member state would trigger the procedure, as Theresa May did on 29 March.
Now that we’re in the procedure, it’s important to understand it, and I am concerned that some aspects of the article seem to me rather inadequately reflected, or indeed misinterpreted, in our current public debate. I want to highlight four points.
First, while we’re in, we’re in. While the divorce talks proceed, the parties are still married. Reconciliation is still possible. The article requires the parties to negotiate the ‘arrangements’ for our withdrawal, but we are not required to withdraw just because Theresa May sent her letter. We can change our minds at any stage during the process.
Second, however, there is a time limit. To reassure a member state wishing to leave that it could not be trapped in endless fruitless negotiation, the article is clear that after two years, one is out. But the time limit can be extended if all parties consent: this could become important.
Third, Article 50 is only about divorce. Any agreement about future relationships (e.g. on trade) between the UK and the EU27 would be negotiated under other articles, with different voting rules, and could only be concluded after we had left. Unlike an Article 50 agreement, this would probably require ratification in every member state, which in some countries would require referendums.
Fourth, once we’re out, we’re out. The article is clear that there can be no keeping a back-door key. If, once we’d left, we were to change our mind, and want to go back in, we would have to go through the full accession procedure, like any other candidate country. That would entail paying a price.
Taking these issues in turn – First, and crucially, as required by the treaty, May’s letter was only a notification of the UK’s ‘intention’ to withdraw. Intentions can change. We still have all the rights of a member state, including the right to change our minds and our votes, as member states frequently do, for example after elections. The article is about voluntary withdrawal, not about expulsion: we don’t have to go if at any stage, within the two years, we decide we don’t want to.
The clause that says that ‘once we’re out, we’re out’ says just that, and only that. If we, the drafters, had wanted declaring an intention to go to be the Rubicon moment, if we had wanted a notification letter to be irrevocable, we would have drafted the clause to say so. But we didn’t, and the clause doesn’t. So, the die is not cast irretrievably. The letter can be taken back.
That has subsequently been confirmed by formidable legal experts. Let me cite just two. Jean-Claude Piris, Legal Counsel to the Council in my convention days, is clear that ‘even after triggering Article 50, and notifying the EU of its intention to leave, there is no legal obstacle to the UK changing its mind.’ Prof Sir David Edward, UK Judge in the ECJ when the article was drafted, says the same.
The UK government gives the impression that the Rubicon has been crossed, but it currently refuses to publish its Law Officers’ opinion: I think we know why. It has been careful not to say that we could not take back Theresa May’s letter. During the Miller case, and at the despatch box in both Houses, Government spokespeople have consistently said only that ‘as a matter of firm policy’, we won’t take it back. That formula in itself confirms that we could take it back.
The fact is that a political decision has been made, in this country, to maintain that there can be no going back. Actually, the country still has a free choice about whether to proceed. As new facts emerge, people are entitled to take a different view. And there’s nothing in Article 50 to stop them. I think the British people have the right to know this – they should not be misled.
Supposing we were to exercise our right to withdraw May’s letter, how would leaders across the Channel react? We know from what they have said: they would applaud. Let me cite a couple of presidents: ‘If the UK wanted to stay, everybody would be in favour. I would be very happy.’ That’s Antonio Tajani, President of the European Parliament. ‘It is in fact up to London how this will end: with a good deal, no deal, or no Brexit.’ That’s Donald Tusk, President of the European Council. Or take the Taoiseach, Leo Varadkar: ‘The door remains open for the UK to stay in the EU.’ Yes. It does. And President Macron has said the same.
Most EU leaders think Brexit would be a disaster, worst for us, but bad for all. Most believe that, in a world of Trump and Putin, of Daesh and Islamic State, of Asian competition, of climate change and migration misery, Europe should stick together and work together. They of course recognise that we have every right to take a different view, but they hope that in the end we won’t. They value our contribution to the Union’s vitality, remembering with respect how Margaret Thatcher fought to create the single market, and John Major and Tony Blair insisted, when the Wall came down, that we must bring in the new democracies of Central and Eastern Europe.
They often find us difficult partners, annoyingly pragmatic and practical. But they now find us puzzlingly dogmatic and doctrinaire on Brexit. If we were to change our minds, Putin and Trump would be disappointed, but our near neighbours, and our true friends across the Atlantic and in the Commonwealth, would cheer. I think the country should know that.
My second concern is less fundamental, but I am uneasy that the country isn’t being told much about the possibility of taking more time.
I don’t know why the prime minister was in such a rush to send her letter in March, before her cabinet had an agreed plan. It was odd to start the clock and not start negotiating, instead calling an election. And I don’t know why both government and opposition now seem to discount the possibility of our seeking an extension. Predicting how the EU27 would react to such a request is harder than predicting how they would react to our withdrawing the letter, and if anyone refused there would be no extension. I believe much would depend on our perceived motive. If we were seen as simply wanting to take a deadlocked financial negotiation into extra time, I doubt if we could be sure of the necessary unanimous consent.
But if, for example, we were to need time for parliament to consider a final deal, an election and/or to pass the legislation needed for a referendum giving the people the final say on this process, to check that the country, having seen the facts emerge during the negotiation process, still wanted to leave, I do not see any of 27 democracies denying us the chance to consult the people. They would think we had every right to check that the country, by then aware of the facts, still wanted to leave. How the people should be consulted at the end of this negotiation process is an issue for the politicians, not me, but the country is entitled to know that different options are open to it.
My third concern is over confusion about ‘transitions’, ‘implementation periods’, ‘standstills’, and cliff edges.
I believe it was unwise of the EU27 to insist on ‘sufficient progress’ on money before turning to the future relationship. I think they were wrong to be misled by suggestions here that they could ‘go whistle’, and that we might refuse to honour our commitments: I’m sure we never would. And it would of course be self-defeating: lengthy arbitration or court proceedings about unpaid bills would severely complicate full WTO accession. I believe that there should now be parallel tracks, one looking back, on settling debts, one looking forward, on future partnership plans, everything on the understanding that nothing can be finally agreed on either until all is agreed on both. I hope that will now happen.
But I am puzzled by UK suggestions that a fully comprehensive agreement about the future can be completed and initialled by this time next year. EU trade agreements with third countries come under Article 218, not Article 50. They take time and association agreements take longer. And getting widely-drawn agreements ratified can be tricky. The Canadian negotiations have taken seven years, and I hope that a UK-EU agreement would go wider, extending beyond goods into services. And ratifying widely-drawn agreements can be problematic: the Canadian deal got stuck in the Walloon parliament.
But we, the Article 50 drafters, had thought of the timing problem: hence the stipulation in the article that the divorce settlement must be drawn up ‘taking account of the framework for the future relationship with the Union.’ When will we at last put forward a draft framework, a ‘Heads of Agreement’ text, the basis for an agreed outline, or set of principles, which would guide the subsequent detailed sectoral negotiations? And why do we insist that the ball is in the EU court? Having service is usually seen as conferring an advantage. The best time to submit our ideas for the framework might have been before starting the two-year clock. But better late than never.
And do we really envisage that by next October we shall have not only initialled a permanent agreement, but will have also, subsequently, reached agreement on a transitional regime to get us from here to there, so avoiding the cliff edge in 2019? This seems no less puzzling. Since we won’t have a clear picture of the detail of future permanent arrangements, I don’t see how we could build a bridge to them. Without some framework, we risk having nothing to ‘transition’ to, nothing to ‘implement’.
In her Florence speech the prime minister seemed to acknowledge this, and floated instead the idea of a standstill, for some two years, during which we would, after leaving, continue to apply all EU rules and regulations. The EU27 have in fact offered that from the start: their April guidelines say that ‘should a time-limited prolongation of Union acquis be considered, this would require all existing Union regulatory, budgetary, supervisory, judiciary, and enforcement instruments and structures to apply.’ In Florence, it sounded as if May might buy all that, for two or three years. But subsequent statements by Boris Johnson, Liam Fox and Michael Gove suggest that they don’t.
But the key point about such a standstill is that it doesn’t avoid the cliff edge. It merely postpones it for a couple of years. That wouldn’t provide the certainty business so badly needs. And whether it’s called transition, implementation or standstill, it would follow our leaving. Once we’re out, say in March 2019, we’re out, with no votes, no judge, no commissioner, no MEPs, and no way back, other than an accession negotiation, starting from scratch. Again, I think the country needs to know that.
My last point can be briefly put. I think the country should also be aware of one big difference between, on the one hand, negotiating for accession, and, on the other, drawing back from secession: in the former, there’s a price to pay; in the latter, there isn’t.
If we were eventually to apply to rejoin the EU, it might be rather difficult to persuade 27, or by then maybe more, member states, many of them less wealthy, in per capita terms, than us, that we should have a budget rebate. Margaret Thatcher secured it from inside, after quite a fight, and it isn’t universally popular. To sell the idea again, from outside, would not be possible.
Conversely, while we’re in, we’re in; and there would be no price to pay if we were to decide to stay in. The rebate is part of a legal text known as the Own Resources Decision, which can be amended only if all member states agree. While we remain a member state, we would not agree to drop the rebate. And since we are entitled to remain a member state, we could not be forced to do so.
My conclusions are simple. The national debate about Brexit should take account of the facts that:
- Our Article 50 letter could be withdrawn without cost or difficulty, legal or political;
- A standstill agreement is no panacea;
- Once out, there is no easy way back in, and there would be a price to pay; but
- While still in, the option of stopping the clock, in order to consult the people again, is available.
All four facts will still be relevant when parliament next autumn gets the chance, as it must, to assess the outcome of the negotiations.
Speech given to and originally published by Open Britain
House of Lords
John Kerr is a Crossbech peer and former UK Permanent Representative to the EU and Ambassador to the United States. He is Advisory Board Member of the Scottish Centre on European Relations.