- Britain is more than one-quarter of the way through the Article 50 period — and has nothing to show for it.
- Prime Minister Theresa May has admitted her government is making contingency plans for “no deal.”
- Two sources say her government has received legal advice on whether Brexit is reversible or revocable.
- This is why Article 50 is a trap and triggering it early was an error: The EU doesn’t need to do anything to “win” the negotiation, it can sit on its hands until the clock runs out in March 2019 and punish Britain with a “hard Brexit.”
LONDON — Two pieces of information coming from Downing Street in the last seven days have illustrated — again — why the Article 50 negotiations are a trap and why triggering it early was a huge strategic error by Theresa May.
The first snippet was the prime minister’s admission that her government was preparing for a Brexit with “no deal” with the EU. “Government is working on what it would need to put in place if there was ‘no deal,'” she said. This is the worst-case scenario, in which Britain fails to negotiate a trade pact inside the two-year time period laid down in Article 50, and leaves the EU with no access to the Single Market or the customs union. It would raise tariff barriers immediately between the UK and its single biggest import-export partner. That would shave a couple of points off GDP growth and plunge Britain into a recession of its own making.
The second was a report by The Observer claiming two sources have told Jessica Simor, a barrister with the politically connected law firm Matrix Chambers, that May’s government has received legal advice saying that “the Article 50 notification can be withdrawn by the UK at any time before 29 March 2019 resulting in the UK remaining in the EU on its current favourable terms.”
We’re six months into the 24-month Article 50 period, and we still don’t have a clear answer.
Are we on a train or a rollercoaster?
The “withdrawal” issue is significant because it opens up the question of whether Article 50 is more like a train or a rollercoaster: Can Britain get off at the next stop and take a return trip home? Or are we stuck inside the car until the ride comes to an end?
Until recently, May’s government has deliberately given everyone the strong impression that Article 50 is not reversible or revocable. As a political matter, the Conservative party has made it clear that it regards the 2016 referendum as the final say on the matter. As a legal issue, Justice Secretary Liz Truss has said, “my understanding is that it is irrevocable.”
But May’s “no deal” statement and the apparent existence of her legal advice belie both those positions: This isn’t a rollercoaster, it’s a train. We can get off if we want to.
The Article 50 deadline is more important than the substance of the talks
The difference between the two goes beyond a cute metaphor. As I have argued repeatedly, the negotiation deadline in Article 50 is more important than the substance of the talks themselves. Any member of the 28-nation bloc that triggers it is automatically ejected from the EU with or without a deal after two years. The EU is incentivised to demonstrate to other European countries that exiting the EU leaves you in a worse position than staying inside it. So it is actually to the EU’s advantage to not negotiate at all, and just let the UK flop out of the EU with no deal.
The only way for an Article 50 country to emerge with an advantage is if that nation negotiated the structure of its trade deal before triggering the deadline. (The EU’s “no prenegotiations” stance is a political principle, not a law.)
Without an advance deal in place, Article 50 is simply a trap that lets the EU punish anyone who tries to leave.
The threat of litigating Article 50 would move the balance of power in Britain’s favour
Unless, of course, the legal advice May has received is correct: That Britain can undo its Article 50 trigger and threaten to restart the process.
Whether the advice is accurate is an open question: The UK would have to litigate it to the European Court of Justice. It would be a gamble, but one worth taking — because even the risk of a ruling that Article 50 is revocable would dramatically tip the balance of power away from the EU and toward Britain in the negotiations, by removing the EU’s most damaging weapon.
Perhaps that is why May wanted to hear that advice (and why she won’t be bothered if the EU knows that’s an option). After her fatal decision to trigger Article 50 early, she now needs an emergency exit plan.
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