A Soft Brexit that everyone can get behind
An alternative to legal challenges and by-election embarrassment. Soft Brexit for all.
There has been a lot of talk recently about Hard vs Soft Brexit and what each would mean. My fear is that if we are not careful we will get a very Hard Brexit whether we want it or not.
I can’t think of a better way to ensure that Brexit is Hard than to trigger Article 50 without the ability to reverse the UK’s notification.
Many commentators have interpreted the relatively concise wording of Article 50 to mean that the process, once triggered is one-way and unstoppable. After 2-years the UK would cease to be a member of the EU and all EU treaties would cease to apply to the UK.
Even if acceptable terms are agreed, the other 27 EU members would need to ratify the agreement and again if they cannot ratify the agreement then the UK would just cease to be members without any agreement.
Thus as soon as we trigger the process we effectively hand over all negotiating power to the EU who could just let the 2-year clock run down and the UK would become ever more desperate to get an agreement.
If we want to have a Soft Brexit then the UK must be able to withdraw it’s notification under Article 50 (2) if we choose.
How do we get around this issue?
This paper discusses how the UK can construct an approach to the Brexit negotiations that preserves our negotiating position by ensuring that the UK’s notification of intent to Leave issued under Article 50 (2) can be withdrawn if we cannot ratify the deal(s) on offer.
This mechanism would have the effect of giving the UK the option of winding the clock back to a pre-notification position should the UK decided not to ratify the deal(s) on offer.
There seems to be a general acceptance that this would be good for the UK and, if nothing else, considerably strengthen our negotiating position.
As we are a Parliamentary democracy the most straightforward approach would be for the UK to pass an Act of Parliament, let’s call it the BREXIT BILL, that’s sets out a process that will conform to our constitutional requirements. As part of our constitutional requirements the UK can specify two conditions, one that the UK ratifies the agreement(s) and another that the other EU Member States also ratify the agreement(s). If either of these conditions is not met then the UK will reserve the right to withdraw our notification of intent to leave issued under Article 50 (2).
The chart below steps through the activities that will need to be enshrined within the Brexit Bill:
Why would the EU agree to A50 being reversible?
The challenge that has come from many quarters is why the EU would agree to such a mechanism as it obviously weakens their own position?
Well, despite statements made during the Referendum campaign, the EU is deeply democratic and utterly predicable. It is my contention that if the mechanism is correctly structured, the EU would not be able to refuse.
For the UK’s approach to triggering Article 50 (2) to gain EU acceptance the approach will need to demonstrate that it is:
· Compliant with Article 50
· “in accordance with the Member State’s constitutional requirements”
· Fair to EU citizens
· Non-discriminatory between nationalities
If the UK present a plan/approach that meets these criteria the EU will support it, in fact it would be utterly incredible for them to do anything else.
Similarly the European Court of Justice could intervene and interpret Article 50 as not permitting a notification, once duly given, to be withdrawn. But to reach that decision — which is not to be found in any overt provision — in the teeth of a democratically enacted law by a national Parliament which gives citizens the final decision — would itself be damaging to the reputation of the EU.
So, does the plan as outlined meet this criteria? Let’s take them one at a time:
Compliant with Article 50
We will need to frame our approach to conform with Article 50 but as Article 50 is relatively short on detail we can do this with ease.
Section 1 requires that our notification is in accordance with our own constitutional requirements and I will deal with this below. Section 4 provides for a ratification process for the Union members and so if the UK process also has an equivalent ratification process it is difficult to see how this will raise an objection.
“in accordance with the Member State’s constitutional requirements”
This is the key point in Article 50. As the UK does not have a single written constitution, Parliament is the supreme decision-making body — and since this situation has not previously arisen, it is for Parliament to decide on those constitutional arrangements. If the UK approach is encompassed by an Act of Parliament (The Brexit Bill?) it can set out whatever steps felt necessary and again the EU would find it very difficult to challenge. These will become our constitutional requirements.
Fair to EU citizens
This includes being fair to UK UK citizens. Article 50 provides for the other member states to ratify, by qualified majority, the deal being offered to the UK. If our Brexit Act provides a ratification process for the UK citizens it will be seen as fair.
If the ratification process is to involve a popular vote then it would be expected that all EU citizens directly impacted would have a vote. This would extend the electorate beyond the UK, Eire, Malta and Cyprus to include all EU citizens resident in the UK plus all UK citizens living outside the UK. With this enfranchisement such a popular vote would not be challenged by the EU.
UK could satisfy the requirement to be democratic by having a vote as part of the ratification process. This might take the form of a Parliamentary vote, a further referendum (with the electorate as outlined above) or in a General Election with the candidates in each constituency either supporting or opposing the deal on offer. Any of these options would be seen as wholly democratic and not subject to challenge.
At the end of this process the UK may decide to continue with the exit terms negotiated. The fact that the UK have the option to walk away from the negotiations will improve the possibility of negotiating a reasonable agreement.
Should the democratic decision of the UK be that the deal on offer is not acceptable then we would be able to withdraw our notification. I believe that the UK can construct an approach which provides a reversal process from the notification to leave provided under Article 50 (2).
The EU would, by their inherent democratic and fair-minded structure have to accept the process as right and proper.
As Sir David Edward told the House of Lords in May 2016 “It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government.”
Whatever the outcome of the UK’s ratification process we can be assured that “Brexit meant Brexit” and that we have avoided the hardest Brexit of all.
*Richard Tunnicliffe discusses this in his blog site in an article Negotiation Brexit — Shades of Article 50 @howshouldwevote.
** The EU Committee of the House of Lords considered this question in its report on “the process of withdrawing from the European Union” published on 4th May.