Article 50 is a poisoned chalice – Don’t drink from it (Robert Henderson)

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 stay 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.

  1. 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.

9 thoughts on “Article 50 is a poisoned chalice – Don’t drink from it (Robert Henderson)

  1. Agreed.

    There has been do discussion, let alone commitment, regarding what the government must, should or may do in the event of an Out vote. So far as I can tell, it has no binding power at all. Constitutionally I’m inclined to think that it ought to trigger a General Election, but in practical terms, knowing the bull-headed stupidity of most Tory voters, they’d probably vote Cameron back in even if he were committed to (say) another renegotiation.

    Interesting times.

    • Problem here is that a referendum isn’t the same as a general election. The first asks if we want to stay in the European Union, the second which party do we think will do least to bugger the country up.

      I think the most likely outcomes over the next few years are that the Stays will win the referendum – possibly moderately well – and that DC will stay on as a less triumphant Prime Minister than he’d like, and that someone will lead the Tories to a good majority in 2020.

      Other than that, it will be business as usual.

          • As I have previously argued, losing this vote will be seen as an endorsement of everything that has already been inflicted upon us, and inspire them to new enthusiasms. Opponents of the dispensation will be thoroughly cast into the outer darkness. The Tories will go even more to their new niche on the bullying progressive left. Any sort of libertarian-liberal/conservative opposition will be put back for many years.

            This is about much more than the EU; the EU is really a proxy for a vote of confidence or no-confidence in the current socio-political model. A referendum has always been a dangerous strategy (you should never call for a plebiscite you do not confidently expect to win) but we have been lashed to the Referendum horse, and it’s pretty much winner takes all. If we win, especially if decisively, the Establishment are seriously discredited. If we lose, they will be unassailable for the foreseeable future.

            I may purchase some hemlock in preparation for the Morning After.

            • I agree that the referendum is a proxy for everything else. That’s the only reason I will vote to leave. Even so, the thought of having the usual suspects in charge of an unconstrained British State sets me pining for the joys of Bratislava.

              But do expect to lose. There’s too much stacked against our winning – unless, of course, this becomes our equivalent of Trumpmania, in which case there may be a chance.

    • I would not worry so much about Article 50 if those doing the negotiations on our side were both honest in respecting the intent of an OUT referendum result and had the courage to stand firm if the EU was difficult. As the negotiations are to be conducted by a Europhile PM and Europhile ministers s using civil servants who will also almost certainly be Europhile, I can have no such confidence in either their integrity or courage.

      Treaties have always been repudiated unilaterally and the EU breaches its own treaties routinely so concern about Britain’s position being weakened by her word supposedly being devalued lacks credibility. I say supposedly because the terms of a treaty may be utterly unreasonable either in intent or in effect. For example, if we activate Article 50 and spend two years negotiating in good faith we may still get nothing in the end. Moreover during that time the EU could cause Britain serious damage, for example, by exporting a couple of million or more EU migrants rushing to beat either a treaty between the EU and Britain restricting EEA migrants having free entry to Britain or simply Britain walking away at the end of two years.

  2. All that has been clear for some time but it all depends on the percentage. A significant vote to leave would have much more impact that a small vote to leave. Most important of all is what happens during the campaign and the tenacity of the LEAVE side afterwards.

    If Cameron is seen throughout as trying a scare tactic and reliant on help from big business, foreign leaders and the SNP then a Leave vote will leave him and the Remain campaign seriously weaker. They will likely fight among themselves.

    But if the Leave side start falling into the traps of debating what Britain might be like in 20 years time (while the Remain tries to pretend it would be pretty much the same if we were in) then a discordant Leave side would have less authority after the vote.

    But the main thing is to get the Leave result. Debating how we might subsequently be cheated is an armchair activity when we need more pro-active campaigning.

  3. Pingback: Rational Review News Digest, 03/04/16 - North Korea reported to be readying nukes - Thomas L. Knapp -

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