by Frank Schnittger
Sat Aug 6th, 2016 at 11:49:22 AM EST
In a long an spirited discussion over The Brexit Negotiation Process, Colman made a point which has not been adequately addressed:
Brexit without article 50 is also possible.
So is some sort of face-saving operation for the UK (which would, if it was anti-immigrant, fit nicely into the agenda of a lot of EU leaders).
Is this really the case?
A few preliminary points need to be made:
- The Lisbon Treaty which contains article 50 is an international Treaty binding the EU and all its member states to a particular process, defined in Article 50, should a member wish to leave. Yes, of course, International Treaties have sometimes been broken, often in the context of war. But what is the point of negotiating a new Treaty between the EU and the UK, if an existing one can be breached in such a cavalier fashion? So it seems to me, that any formal process of Brexit has to involve the invocation of Article 50 at some stage in the process, even if any post Brexit EU UK agreement has been negotiated largely outside the context of Article 50 and before it has been formally invoked.
- If often fissiparous EU leaders have been unanimous and consistent in one thing, it has been their determination that there can be no substantive talks on Brexit prior to the invocation of Article 50. Perhaps to the chagrin of UK politicians, some of who may have felt that a Brexit vote would strengthen their hand in any negotiations with the EU, most EU leaders have indicated that the invocation of article 50 can't come quickly enough. Please leave, leave quickly, and don't let the door slam behind you on your way out the door could well be a way of characterising the EU response to the Brexit vote.
- There are perhaps two main reasons for this response. Firstly, the EU has tired of UK accusations that it is one vast, anti-democratic bureaucratic conspiracy. "If you want to go, go. You've had your vote. We recognize your democratic decision, now get on with it. Let's not let the resulting economic uncertainty carry on for two long" might be another way of characterising this response. But there is also a more substantive reason for the response: The EU elite and many of its citizens have tired of continuing UK attempts to renegotiate its relationship with the EU, starting with the Thatcher rebate negotiation, and continuing right through to the last Cameron deal, all of which have chipped away at EU ideals of solidarity and ever closer Union. The Brexit vote will not be allowed to become the latest chapter in this ongoing saga. Theresa May is not the only one to say that "Brexit means Brexit".
But let us suppose, for a moment, that Colman is right and that there are a number of EU leaders who are not at all unsympathetic to the anti-immigration rhetoric of Leave leaders, and who would be more than happy to cut the UK a back room deal whereby the EU's freedoms to travel and work anywhere are fundamentally constrained. What is to prevent them from entering into informal talks with the UK government designed to fundamentally re-cast what the EU is all about? The outcome of those talks could then be presented to the UK people in a new referendum as a major victory for British diplomacy addressing the main concerns of the leave camp.
The answer is: nothing at all. If the political will is there, it can be done. But there are a number of problems with this scenario: Firstly, the outcome of those talks would have to be agreed by the EU Council, some of whose members might be extremely miffed at being by-passed by the negotiation process, and many of whom might disagree fundamentally with the substance of what was agreed.
But there is also a much more fundamental problem: Insofar as any agreement between the UK and those dissident members differed from anything enshrined in existing Treaties, any agreement would have to be ratified by every member state in accordance with their own constitution. In Ireland that would mean a popular referendum. And why would, say, Latvia, ratify an agreement the primary purpose of which is to deny its citizens the opportunity to work in the UK?
So yes, in theory it could be done, and article 50 would never be invoked, and the UK would never actually leave the EU. Instead the EU would be recast in the UK's image. But to answer Colman's assertion: No, Brexit without Article 50 is not possible. The Brexit vote would become just yet another chapter in the long process of the UK seeking to re-model the EU into something more to it's liking. The UK wouldn't actually leave the EU. The EU would effectively leave behind what were previously part of its founding principles.
Even in an era where demagoguery and extreme nationalism are in the ascendant, I just can't see that happening. Yes, some informal talks may take place behind closed doors despite all public assertions to the contrary. The broad shape of of the UK's future relationship with the EU might be agreed before Article 50 is formally invoked. Key interests on both sides will be safeguarded. The big players will get their way. But for Brexit to actually happen, there is only one game in town, and it is called Article 50.