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Memo from Brussels: Article 50

June 28th 2016

Parting is such sweet sorrow, said Juliet to Romeo in Shakespeare’s eponymous play. But they were in love – the same cannot be said for the EU and the UK, whose fractious relationship could yet turn into an explosive divorce. Parting, for the UK, is bound to be fraught with difficulty. Indeed, Jean-Claude Juncker, the President of the European Commission – who frequently finds himself tired and emotional at such moments – said the separation would not be amicable because the two had never enjoyed an intimate love affair in the first place. Juncker and Martin Schulz – the sour-faced President of the European Parliament – do not want to string out the UK’s exit: far from it, in fact.

They, and the Foreign Ministers of the six founding members of the EU, have all called for negotiations on separation to start without delay. The French Foreign Minister, Jean- Marc Ayrault, thought we should have a new Prime Minister within a few days. France will hold presidential and parliamentary elections in spring 2017, and the government does not want to give Marine Le Pen and her Front National any room for manoeuvre by prolonging the continent’s political instability. Other EU figures traditionally better disposed to the UK – Angela Merkel included – have said the UK’s secession should not be rushed. Alexander Stubb, Finland’s former Prime Minister – who is married to a Brit and took a doctorate at LSE – has said that the UK would probably end up with a Norway-style relationship with the EU encompassing single market access but with no right to contribute to the regulatory framework.


Philip Hammond has made a similar suggestion, implying that the UK could seek to retain single market access and retain reciprocal rights of free movement, controversial though this will be to Leavers. Much depends on when the British government invokes Article 50 of the Treaty on European Union (TEU), which establishes a legal framework and timetable for departure. The Government must notify the European Council – the heads of state and government of the EU – of the UK’s intention to quit. How this notification should take place is not specified, although one imagines it could take the form of a verbal statement by the Prime Minister or a letter to the President of the European Council. At that moment, the clock starts ticking. The UK has two years to define the parameters of its new relationship with the EU. If it fails to agree a deal, that period can be extended of every other if the 27 member states agrees to an extension.

Just one objection and the UK tumbles out of the EU with no insurance policy at all. Whenever that notification happens, expect the British Government to use all means at its disposal to lobby friendly governments in the EU. Similarly, expect Spain to play hardball over Gibraltar as usual. Article 50 TEU is ostensibly a technical text, but in reality it is highly political. It puts all the apples in the EU’s basket and turns the departing country into a supplicant. At this week’s European Council, David Cameron will brief his fellow leaders on the referendum and its consequences. But he will not invoke Article 50, for several reasons. First, he undoubtedly wants to give Britain some breathing space as to how it should fashion the best deal possible with the EU. This is why some have spoken of informal soundings-out by senior civil servants ahead of any formal notification.

Second, he wants to leave the post-Brexit mess to Boris Johnson and Michael Gove to clear up. Third, he knows that the invocation of Article 50 is the one element of control he has, which is why he will not tell his counterparts that Britain intends to leave the EU. He will probably instead tell them that the UK needs some time to digest the result and its consequences, and perhaps even require Parliament to ratify the vote. There is currently disagreement within the public debate over whether it will be required for Parliament to ratify the vote. In short, every day that passes without invoking Article 50 offers the political establishment in the UK some possibility of tidying up this mess, whereas once Article 50 is invoked there is presumably no going back.Those hostile to Britain will be pressing Cameron for this formal invocation, but if he is going to rescue even a fraction of his legacy as Prime Minister, he needs to delay, obfuscate and above all to block Boris Johnson from succeeding him if Britain’s eventual settlement with the EU is going to be on our terms. Cameron himself is unlikely to do anything other than pay lip service to the small majority voting in favour of Brexit, but there is already a strong counter-reaction underway that Cameron will not want to discourage for as long as he remains in Downing Street.

For those die-hard europhiles who can't stand the thought of Britain outside the EU, Article 50’s final part states that countries that seceded and that wish to rejoin the EU can do so on the basis of Article 49 TEU, which establishes the criteria for accession. The implication of this is that the UK would have to start from scratch, and would probably face a humiliating few years at the Commission’s hands. It is also extremely unlikely that the UK would be able to resume its various opt-outs from the euro, the Schengen area, the Working Time Directive etc. if it sought to rejoin. Nevertheless, Tim Farron has pledged the Liberal Democrats to fight the next election on a platform of rejoining the EU. But which would come first? The election or Brexit? Would the EU halt discussions under Article 50 if a government committed to rejoining came to power? That is all light years away in British political terms, and the EU could be a very different entity by then.