Arranging a Soft Landing for the UK from the EU exit negotiations

An approach to EU Exit negotiations where everyone (Leavers, Remainers, HMG and Parliament) all get a say and can stay on board with the process.

The courts have decided that parliament must sanction the triggering of Article 50.  This may be challenged by HMG in the Supreme court but it would seem much more sensible for the Government to agree to an approach to the negotiations that avoids the need for further legal challenges.

The recommendation, as supported by the House of Lords Select Committee for the Constitutionis to enshrine a democratic withdrawal process into law creating, say, the A50 Bill.

EU exit negotiation steps

The steps would, in summary, be:

  1. Act of parliament  (the A50 Bill)
    •  setting out the exit process i.e. steps 2-4
    • importantly making the exit conditional on UK ratification of the deal
  2. Checkpoint 1
    • before A50 notification — is there really a deal?
    • if not then STOP the exit process at this point
  3. A50 notification followed by Exit negotiations
  4. Checkpoint 2
    •  is the deal acceptable to the UK?
      • if YES the continue to Exit
      • If NOT acceptable to UK (or indeed the EU) then Stop the exit process.

The Leavers get their A50 trigger and Exit negotiations.  The Remainers get a safety-net in that the UK will get the opportunity to ratify the exit deal before the end of negotiations.

If the deal is a good one there will be a majority to Leave, if the deal is poor then the assumption is that it will not get ratified and the UK does not leave the EU.

What would a UK ratification look like?

At the end of the negotiations their would be a democratic decision (either a Parliamentary vote or a 2nd referendum)  to ratify the Exit deal or not.

The UK will decide whether or not to continue with the exit terms negotiated.

If the UK decides that the exit deal if preferable to staying in the EU then the UK ratifies the deal and leaves.

Should the democratic decision of the UK be that the deal on offer is not in the UK’s best interests then the UK would be able to withdraw it’s notification.

To argue against this the Leave camp would have to say that they want to leave even if the deal is poor and even though Parliament (or the electorate) think it is a bad deal.  I suspect only the most extreme of Leavers will still be shouting to Leave at this point.

Is it possible for the UK to withdraw it’s notification?

I still think it is massively important to ensure that the UK has a way of stepping back from the EU exit process, even after the EU has been properly notified of the UK’s intention to leave through Article 50 (2). Obviously this requires that the UK’s A50 notification to leave can be withdrawn.  I think it is, especially if the UK incorporates the ratification step into an Act of Parliament.

Who else thinks that the A50 notification can be withdrawn?

Sir David Edward told the House of Lords in May 2015** “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.” and the UK would remain in the EU.

Lord Kerr, the man who wrote Article 50 says we may be able to stop Brexit 

Richard Corbett MEP @rcorbettmep in his excellent and thought provoking blog : Truths and myths about the months to come  says:

  • It is unclear whether the article 50 process can be revoked once it is triggered. The treaty is silent on the question. But the balance of legal opinion is that it can be, provided it is before the two-year deadline. It must also be a genuine request, and not a device to re-set the two-year countdown.
  • Similarly, if an article 50 agreement reached in 2019 sets a date of, say, 2022, for departure, can the UK change its mind between those two dates? There is greater legal uncertainty here, but politically it is likely that a change of mind about leaving would be accepted, whereas change of mind simply on the terms or timetable would not.

Jean-Claude Piris, a former director-general of the Council of the European Union’s Legal Service, is author of ‘If the UK Votes to Leave’ maintains thatArticle 50 is not for ever and the UK could change its mind” (FT 01/09/2016).

He argues that:

  • … the Article 50 procedure provides for notification by the interested state only of its “intention” to leave. Formal notification of that intention would be made to the European Council, comprising the heads of government of the other 27 member states. In law, the word “intention” cannot be interpreted as a final and irreversible decision. Legally, you may withdraw an intention, or change it, or transform it into a decision. …  by: Jean-Claude Piris

Summary

If we have a UK ratification checkpoint enshrined in our A50 Bill it will be very difficult for the EU to argue against the UK’s right to this option. This is explained in the blog: “UK don’t trigger Article 50 without ability to stop the process

It may be necessary for us to get to the brink, look over the edge and only then realise what a stupid idea leaving actually is. With this approach, when the time came, the UK would be able to step back from the brink.

*********************

References

* HoL Select Committee on the Constitution report – The Invoking of Article 50 12th. Sept 2016

** 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.

Richard Tunnicliffe also discusses this in his blog site in an article Negotiation Brexit — Shades of Article 50 @howshouldwevote.

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