Article 50 is a poisoned chalice – Don’t drink from it

Robert Henderson

Those who think that British Europhile politicians   will  play fair if Britain votes to leave the EU in June will be horribly disappointed. The public may think that if the British people have voted to leave the EU and that is an end of it regardless of the wishes of the Government.   Sadly, there is every reason to expect that Brexit will be anything but a clean break from the EU.

To begin with there has been no commitment by Cameron to stand down as PM if the vote goes against him.  Quite the opposite for he  has publicly stated several  times that  he will stay on and many  Tory MPs, including some of those in favour of leaving like Chris Grayling ,  have said that he must remain in No 10 whatever the outcome of the referendum .

If Cameron stays on as PM after a vote to leave Britain would be in the absurd position of having a man in charge of  Britain’s withdrawal who has shown his all too eager  commitment to the EU by the feebleness of   the demands he made during  his “renegotiation” and his regularly repeated statement before the conclusion of the “renegotiation”  that he was sure he would get new terms which would allow him to campaign for Britain to remain within the EU.   

A post-referendum   Cameron  government entrusted with negotiating Britain’s departure from the EU would mean that not only the  PM  but  the majority of his  cabinet and ministers below  cabinet  level  will  be  drawn from the same pro-EU personnel as he has today.  In those circumstances Cameron and his fellow Europhiles would almost certainly try to stitch Britain back into the EU with a deal such as that granted to  Norway and Switzerland. If that happened Britain could end up with the most important issue in the British  public’s mind –  free movement  of not only labour but free movement of anyone with the right to permanent residence in the EU – untouched .

But if Cameron leaves  of his own accord soon after a vote to leave Britain could still end up with a Europhile  Prime Minister and Cabinet.  Why? By  far the most likely person to succeed him  is Boris Johnson. If he  does become  PM there is every reason to believe that he will also do his level best to enmesh Britain back into  the EU.  Ever since Johnson  became the Telegraph’s  Brussels correspondent in the 1990s he has been deriding the EU, but until coming out as a supporter of voting to leave in the past week he has never advocated Britain’s withdrawal.  Johnson also gave a very strong hint  in the  Daily Telegraph article in which he announced his support for leaving the EU that his support for Britain leaving the EU was no more than  a ploy to persuade the EU to offer  more significant concessions than those offered to Cameron. Johnson has also been a regular advocate of the value of immigration.

The scenario of Cameron or Johnson deliberately subverting the intention of a referendum vote  to leave are all too plausible. There has been no public discussion let alone  agreement by leading  politicians over what the British government may or may not negotiate in the event of a vote to leave.   Nor has there been any suggestion by any British politician or party  that whatever the terms offered by the EU the British public will have the right to vote on them in a referendum.  Britain could be left  with  an agreement decided by the British Government and the EU which might do nothing of what  the British public most wants and  has voted for, namely, the return of sovereignty and  the control of Britain’s borders.

Then  there is Article 50 of the Lisbon Treaty.  Both Cameron and Johnson are committed to doing so within the terms of the Lisbon Treaty of  2009.  Far from a vote to leave in the referendum putting Britain in the position of a  sovereign nation engaging in a negotiation for a treaty with the EU  it traps  Britain into an extended period of negotiation whose outcome is dependent on the agreement or non-agreement of  the 27 other EU member states and the  EU Parliament.  Let me quote  the Article in  full:

Article 50

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49. (

Article 50  means that Britain could spend two years negotiating and get no treaty because the Council of Ministers could veto it through Qualified Majority Voting (QMV) or the European Parliament reject it. Britain would then have the option of either asking for an extension (which could be indefinite because there is no limit mentioned in the Article) or leaving without a treaty.  There is also the further complication that if a treaty was agreed by the Council of Ministers and the European Parliament it would still have to be agreed by 27 EU member states,  either through Parliamentary vote or  in the case of a few including France, a referendum.  Moreover,  even if a treaty is agreed and accepted by all EU member states, this would leave  Britain up in the air for what could be a considerable time as each of the 27 members goes through the process of getting  the agreement of their Parliament or electorate.

The OUT camp must make it clear that  it would be both damaging and unnecessary for the UK to abide by this Treaty requirement. It  would allow the EU to inflict considerable damage on the UK both during the period prior to formally  leaving and afterwards if  the price of leaving with the EU’s agreement was  for  UK to sign up to various obligations, for example, to continue paying a large annual sum to the EU for ten years . It would also give  the Europhile UK political elite  ample opportunity to keep the UK attached to the EU in the manner that Norway and Switzerland are attached by arguing that it is the best deal Britain  can get.  If there was no second  referendum on the  terms  negotiated for Britain leaving the government of the day could simply pass the matter into law without the British voters having a say.

The Gordian knot of Article 50 can be cut simply repealing the European Communities Act and asserting the sovereignty of Parliament.   No major UK party could  object to this on principle because all three have, at one time or another,  declared that Parliament remains supreme and can repudiate anything the EU does if it so chooses.

If the stay-in camp argue that would be illegal because of the  treaty obligation, the OUT camp should simply emphasise  (1) that international law is no law because there is never any means of enforcing it within its jurisdiction is a state rejects it and (2) that treaties which do not allow for contracting parties to simply withdraw are profoundly undemocratic because they bind future governments. There is also the fact that the EU and its predecessor the EEC has constantly breached its own rules, spectacularly so in the case of the Eurozone.  Hence, for the EU treaties are anything but sacrosanct.