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.”
“The UK is acting as lab rat for the workability of Article 50″
The biggest problem is the time limit. The “Article 50 period is too rigid and too short to complete negotiations, legislate for the outcome of those negotiations and be ready for exit,” Rutter told me. This acute time pressure is why Britain’s lack of progress is so concerning. Extending A50 is no small feat (more on that later). A “transitional deal” of the type Theresa May proposed in her recent Florence speech could help. But this sort of thing should be formally provided for in the treaty itself, Rutter suggested, rather than arranged on an ad-hoc basis. Then there is the issue of the set-up of the negotiations which engenders confrontation—why make no provision for third party supervision or mediation?
The conversation here began to take on a slightly different tone, and I realised that we were no longer just talking about the defects of Article 50. We were talking about Europe rewriting it.
Britain would, it is safe to say, have little to gain from this. We have triggered the clause and are almost certainly on the way out. Whatever the problems with it we will have to put up with them. But if A50 really is fundamentally flawed, there is a clear case for revision once the EU has learnt the lessons of the Brexit process. The other 27 member states deserve a little legal certainty, even if Britain hasn’t had much.
Anand Menon, Director of think tank the UK in a Changing EU, told me the Union “absolutely should” revise A50 post-Brexit. “If the EU is genuinely committed to stressing it is a voluntary association of states and so to letting states leave if they so choose, it should clearly protect its own interests in the process but also ensure that leaving is possible. No government, however strong and stable, can do everything required in the two years allowed.” The suggestion seems to be that Article 50 is so flawed in its current form that an orderly exit is simply impossible.
Pierre Schammo, Co-Director of the Durham European Law Institute, trained as a lawyer in Luxembourg. “From a strictly legal point of view,” he told me, “Article 50 is not fit for purpose… So, yes, there is an argument to be made for redrafting it, especially with regard to the two-year period and the unanimity requirement for extending that period.” Currently, if a departing country wants an extension of Article 50 it must be agreed upon by all other member states. A high bar to clear.
However, revising Article 50 “would require reopening the Treaties” of the European Union. “That of course comes with all sorts of risks” for the EU, he said.
Menon agreed a revision would be politically difficult, while David Edward, former Judge of the European Court of Justice and one of Britain’s most senior legal experts, told me that A50 is best left alone. “It would be better to leave things as they are, and leave unforeseen problems to be resolved as they arise.”
But for her part, Rutter maintains that the EU should consider a rewrite next time it is drawing up a new Treaty. “The UK is acting as lab rat for the workability of Article 50,” she stressed. And what of the EU? It should ask whether the clause really serves its purpose. “At some point in the future it might be worth reflecting whether a confident organisation needs to intimidate reluctant members to stay by having such a clumsy exit route,” she told me. Well, quite.