Making sense of Article 50 – and why we are right not to be triggering it immediately

Making sense of Article 50 – and why we are right not to be triggering it immediately

Recently, a friend was discussing what motif he might wear on a special T-shirt for the Conservative Party Conference, which opens tomorrow. I suggested a cartoon of a blobby character looking dejectedly at the ground, wearing a T-shirt of his own saying “Article 49”, and projecting a thought bubble thinking “Nobody ever talks about me”. He thought nobody would get it and rejected this Roger Hargreaves-esque monster – and probably for the best. But I think he’s wrong on the recognition factor.

Article 50 or A50 (though not the trunk road near Stoke on Trent) has become a totem of our times. In short, it’s the clause in the EU treaties that determines how a country can leave the EU. Some journalists are stoking up the issue of when we declare it, threatening to turn it into a matter of Brexit credibility. The inference is that by not triggering it already, the Government is going wobbly on leaving the EU. The reality, however, is much more complicated and some restraint may sensibly be deployed by Eurosceptics in their responses.

In the first place, the article itself constitutes a variable. It allows, on triggering, for negotiations lasting up to two years, which may be extended. That extension, however, only happens through unanimity, a condition that itself adds a new bargaining chip that is potentially detrimental to the UK. With some Visegrad countries already hinting at holding hard positions, given the existing obduracy of Madrid and Paris in certain areas (fisheries, expat health care provision, and agriculture in particular), and allowing for the possible banding together of obdurists inside the Commission and European Parliament, there exist certain variables that mean we cannot guarantee a comprehensive settlement within twenty four months. Though it might well happen.

A50 also conversely allows for any timeframe less than two years. Technically, it might be triggered overnight, allowing for a super-swift transition: that’s unlikely, but you get the point. It is flexible – a deadline, not a designated H-Hour.

Not triggering Article 50 immediately is allowing our negotiators breathing space to get a feel for how swiftly agreement is likely to be reached by the various parties, without first handing national capitals a chance to grandstand by playing tough. That may prove important, given key upcoming elections in France and Germany. On the back of what they are finding out, Whitehall’s planners can then work out which blocks or elements will take longer to negotiate and may need to form subsequent treaties, and thus what the core skeleton can be.

It is also important to recall how A50 came about. As one of a handful of Brits working behind the scenes in Brussels during the Convention on the Future of Europe, I well recall the initial reactions of our tiny band of Eurosceptics on first encountering it. It was introduced very early on indeed and came as a shock. Its introduction admitted that countries could legitimately leave the EU at any point, a detail previously only inferred. The transition time itself generated different responses.

My own thinking was that it could be used as a trap to ‘milk’ departing states who were net contributors. By contrast, Jens-Peter Bonde sagaciously observed that the EU treaties and the associated legislation were already getting so complex that a clean break was no longer possible, and a designated transition period was helpful. On balance, it was a good thing our amendment to reduce the timeframe went unheeded, though our parallel attempt to remove reference to the deadline altogether might have incidentally removed the problem in its entirety.

While blobby T-shirt Article 49 might not have the same importance for us today as his ‘neighbour’, another clause probably now deserves more attention than A50 is getting. Article I-57 of the Constitution, the ‘Good Neighbour Clause’, also made it into the end Lisbon Treaty. I am still unclear how such an extraordinary element slipped past the federalists, but it certainly put me in party mood when it first arrived. It effectively acknowledged that the continent of Europe would never be united into a single model; and it actively encourages states that aren’t part of the core to leave the EU and enter into free trade deals instead. What was simply needed was a motor, which the referendum result now provides. Far more ought to be written about it, and when facing EU negotiators much of the strategic vision ought to be overtly grounded on it.

Ultimately, the talks on the future shape of the UK’s treaty of cooperation with the EU will take as long as they take. A50 will be triggered at a point that is convenient within that process. We needn’t get into any hang-ups over when that process is formally done, so long as it happens before the next general election, and delivers a deal that equates to leaving the EU rather than delivering a form of ‘lazy student’ membership – part of the institution and paying the fees but missing a number of the lectures. The good news is that, if negotiators enter into the spirit of things, the strategic part of the talks should be a doddle compared to what went before.

If you don’t believe me, try for yourself. Some months ago, Tim Philpott and I put together a free downloadable board game. All you need is a printer (alcohol is optional but not supplied). The Renegotiation Game takes the player through the processes of trying to get a deal without actually having an idea of what kind of deal you are actually after.

Happily, this time, the process should be easier. Basing everything on picking opt-ins rather than squabbling over opt-outs should make for a clearer baseline for talks.

On some quiet Friday afternoon, both Whitehall and the Parliamentary Press Gallery might usefully print out a few copies of our game, send someone down to the shop for some tinnies, and pop open some Pringles. Perhaps then some of those Article 50 blues will then start to melt away.