UK should agree vital terms with EU before it triggers Article 50

The Article 50 withdrawal procedure is fundamentally flawed, mainly against the departing state.

Without an advance meeting of minds between the EU and the UK, this unfair procedure puts the latter in a hopelessly weak negotiating position and may collapse it entirely.  

Section 3 Art. 50 of the Lisbon Treaty: “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

In practice, the two-year time limit runs against the UK.

From the time the EU makes its final offer, the UK has only two choices, ‘take it or leave it’.

If rejected, on the expiry of the period, there will be a Brexit which is as hard as you can get and on no terms whatever. Membership ceases with no further obligations or privileges subject to paying any outstanding money. The UK’s relationship with the EU would be conducted as an outsider perhaps with disappointed former colleagues.

The question of submission of any deal for UK parliamentary approval after the Art. 50 notice, proposed by British Labour, is a distraction to any real parliamentary input, and irrelevant to parliamentary veto on any proposed new arrangement.

If parliament had power to reject it and did so, the EU has to do nothing but watch the clock wind down the two-year period and the UK becomes by default a former member state of the EU on no terms at all. 

At best this would delay massively such new arrangements as the UK would make as an external state. For Ireland, there are severe implications as there would then be no arrangement in place to avoid a hard border and provide supports for the current shared administration in Belfast.

Parliamentary approval and the possible requirement of enabling legislation for Article 50 invocation, now under consideration by the Supreme Court in London is another factor. The government motion in parliament on the 7th of December approving the Art 50 notice could impinge on the judge’s deliberations and is so being spun by the Tories and some British media. Even if the Judges decide for parliamentary authority prior to Art. 50 notice, the vast majority of members of both houses in parliament clearly have no stomach or other glandular strength to invoke any independent or conscientious wisdom to review the current obsession to depart the EU rapidly at any cost.

Further litigation now proposed here in Ireland will question whether Art. 50 Notice is revocable.

Nothing in the article itself suggests it is and I doubt there is anything implicitly so either, so it is doubtful that this will be an effective challenge.

The stark sad simplicity of the above exit scenario can be obviated only by considerations the EU may have an interest in securing terms from the UK for their leaving.

This will depend to some degree on the evaluation of trading benefits to the remaining EU members. Article 50 seems designed as if never intended to be used, possibly as a deterrence. There is neither suggestion nor likelihood of it being redrafted within the current turmoil.

It would be lunacy for the UK to proceed with the Art. 50 notice without some vital terms being agreed in advance. Without this the UK will be at the mercy of the EU in the negotiations and the EU itself at the mercy of a ‘rogue member.’ This is no mere scenario but is what must happen without unusual goodwill on the part of the EU. Its effect is far more drastic than the well canvassed risks from advance disclosure of the UK’s agenda. 

There is still time to avoid this outcome and the UK is sincerely advised to defer any further steps along the departure road and not to serve the Art. 50 Notice. This allows pause to clarify options, plan and if necessary hold out for terms.

It has implications for us all and in particular for the Irish interests. Ireland would have to consider supporting the UK both for Ireland’s and the UK’s sake. It will be harder for the UK to row back given its entrenchment.

Ireland has done due diligence on Brexit. The UK, including Northern Ireland are not so prepared. Sectional and populist politics is playing too great a part in the drama. The outcome is potentially severe but with due care and foresight the impending shifts can be much better managed. Wisdom is called for now rather than driving petulance. A considered resolute approach will lead to greater fairness and a more successful outcome for all concerned.

• Neil McCann, BCL, MAJ, is a southern barrister now living in Fermanagh