According to some the exit clause is deeply flawedby Alex Dean / November 2, 2017 / Leave a comment
Article 50 is the clause at the centre of the Brexit process. Everything turns on it. It was Article 50 that Britain triggered in March to set its exit in motion, that sets the two-year time limit on negotiations, and that will throw us out into the cold in 2019 when the timer hits zero. Brexit represents the greatest constitutional challenge Britain has faced in decades—perhaps ever. This 130-word clause of the Lisbon Treaty is the key to the whole ordeal.
And what an ordeal it is turning out to be. Talks with Europe are at deadlock, with total collapse a distinct possibility. Each time some progress looks to have been made, such as after the European Council meeting last month, Britain crashes back down to earth. There are all sorts of potential explanations for this, including the ineptitude of the British team doing the negotiating and of the government instructing them.
But one could make the case that the biggest problem lies in those 130 words themselves. The clause was designed to give the EU the advantage in negotiations, and put all the pressure on the departing state. Britain is certainly taking the battering at the moment, but a handful of experts told me the clause does not in its current form serve the Union’s interests either. The argument is that Article 50 is defective, unsuited to the job for which it was designed. I pressed those in the know on the implications.
For some there is no issue. John Kerr, who authored the clause, was (unsurprisingly) quick to defend it. Over email he quoted Shakespeare at me: “The fault, Dear Brutus, is not in our stars, but in ourselves.” The thinking is that Britain’s Brexit problems boil down to its own messy politics rather than a faulty treaty. Kerr is a highly experienced diplomat and I am inclined to agree with him on most subjects.
But others maintain that there are fundamental problems with Article 50. Jill Rutter, Programme Director for Brexit at the Institute for Government, told me that the current wording of the clause helps no one. “If the aim is to have a provision that allows an EU member state to exit in an orderly way, while creating the basis for a stable but looser long-term partnership” with Europe, then Article 50 “looks pretty defective.”