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Article 50: straitjacket or guideline?

February 17, 2017

As the clock ticks relentlessly towards the day when the UK government finally presses the button on Article 50 to initiate formal talks about about how the UK might leave the European Union, there seems to be less consensus and more confusion about that process than ever.

In the midst of this confusion we have lawyers trying to put Article 50 in a straitjacket. This will not do anyone any favours.

The case being drawn up in Ireland may seem admirable in its intentions but it could so easily backfire. Those who want to keep open the slim chance of a second referendum to review whatever deal is negotiated by the end of the Article 50 process or who, despite favouring Brexit, want a sensible transition to life outside the EU will not thank anyone who comes out with a court ruling that Article 50 cannot be varied from its strict two-year deadline.

Everyone needs as much flexibility as we can muster to make this work, otherwise it will just turn into a series of rhetoric-filled empty gestures as politicians on all sides play to their own galleries of public opinion.

Article 50 ‘made by politicians, can be unmade by them’

Last week Nick Clegg, speaking at a Liberal Democrats in Business meeting at the National Liberal Club, was absolutely clear that he did not want the lawyers anywhere near Article 50. His argument, right in my view, is that Article 50 was made by politicians and can be amended or undone by politicians. Without that flexibility there is very little hope of preventing anything but a hard Brexit.

nick_cleggClegg was backed up this week by constitutional expert Professor Vernon Bogdanor who told an Association of European Journalists lunch that it isn’t a legal text. He also challenged assertions that once started the Article 50 process was irrevocable although he wasn’t hopeful on the prospects of a second referendum: “A second referendum would only be possible if there is a major shift in public opinion. That would take some major concessions on free movement to be offered which looks unlikely”.

We’ve got one year, not two

The other point on which both Clegg and Bogdanor agreed was the short window there will be for proper negotiations.

With France, Holland, Germany and, probably, Italy distracted by national elections, serious talking is very unlikely to start before the autumn now that Theresa May’s government has delayed so long in starting the Article 50 process. There will then be little over a year to get the main terms of the UK’s exit settled as the deal will have to go to both the UK Parliament and through the rather longer approval process in Europe, involving the Commission, Council of Ministers and European Parliament.

Clegg’s redemption

As a footnote, let me praise Nick Clegg. I have made no secret of my view that he was a poor leader of the Liberal Democrats and ineffectual as Deputy Prime Minister. Brexit, however, is an issue on which I have heard him speak a few times and he is spot on in his analysis, prognoses and fears. He clear, sincere passion on the topic is making people listen to him and we will all be better for doing so.




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