Article 50: decoding Donald Tusk’s careful remarks

 

29th June 2016

So: Prime Minister David Cameron avoided blurting out any notification under Article 50 at yesterday’s European Council meeting.

This daft attempt yesterday by the European Parliament to bounce the UK into making such a notification failed:

5. Warns that in order to prevent damaging uncertainty for everyone and to protect the Union’s integrity, the notification stipulated in Article 50 TEU must take place as soon as possible; expects the UK Prime Minister to notify the outcome of the referendum to the European Council of 28-29 June 2016; this notification will launch the withdrawal procedure.

But the remarks of the President of the European Council Donald Tusk (who, unlike the blustering Jean-Claude Juncker, is to be taken seriously in all this) which followed the meeting repay close attention.

(The European Council is the important EU body to watch regarding Brexit: in comparison with the Council, both the European Parliament and European Commission are weak schools of postures.)

The key paragraph of the remarks is as follows:

“Most importantly, Prime Minister Cameron outlined the results of Thursday’s referendum. Respecting the will of the British people, we all recognized that a process of orderly exit was in everyone’s, and especially, in the UK’s interest. Prime Minister Cameron undertook that the decision to trigger Article 50 of the Treaty on European Union be taken by the new leadership in Britain. Our discussions were calm and measured. Leaders understand that some time is now needed to allow the dust to settle in the UK. But they also expect the intentions of the UK government to be specified as soon as possible. This was a very clear message which I believe Prime Minister Cameron will take back to London.”

A few points can be fairly made about this wording.

First, Tusk accepts the Article 50 notification is to be made by the next UK Prime Minister, and that the decision has not yet been made by the UK to make that notification.

Second, he accepts the merits of delay: “that some time is now needed to allow the dust to settle in the UK”.

And third, and this is very subtle – see how he describes the referendum outcome: “the results of Thursday’s referendum”.  Note how he uses “results” not “decision” – and carefully uses the plural form in doing so.

These remarks, by themselves, do not mean that the Article 50 notification will never be made; but they do mean that the European Council accepts that the referendum, by itself, was not the (or, even, a) decision, and that the European Council accepts that there should be delay in the decision being made.

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14 thoughts on “Article 50: decoding Donald Tusk’s careful remarks”

  1. I think that Jean-Claude Juncker was extremely unwise to engage in that very unfortunate discourse with Farage. It’s clearly personal, and Farage seems to relish making things worse. Is there a legal way we can find of impounding Farage’s passport for the next couple of years? Perhaps we could have a whip-round and send him on a long holiday? His presence is a constant irritation to the process.

    In any event, it is to be hoped that wiser heads prevail and the negotiations are carried out in good faith and in the best interests of all. The danger is that some of those in the EU with centralising tendencies will see a need to impose some form of exemplary punishment on a dissident member.

    The fact that the “27” decided to have what amounted to an EU council meeting without the presence of David Cameron is surely a bit odd in terms of the EU constitution. It was officially flagged as “unofficial”, but that’s stretching things a bit given it was set-up by the President of the European Council. It’s also not exactly compatible with the nothing happens (including informal negotiations) until article 50 is activated point. Of course there is no way for Cameron to prevent an informal meeting of he 27, but he might have objected. Possibly he didn’t do so in order to avoid provoking another row.

  2. “a process of orderly exit was in everyone’s, and especially, in the UK’s interest”.

    Interesting wording too.

  3. Thanks for providing some much needed clarity in such uncertain times. It’s probably no surprise but I remain confused about the signalling from the Conservatives. On the one hand, they are obviously delaying invoking Article 50 yet at the same time all the leadership contenders are “all Brexiters now”, according to Sajid Javid. So how should we interpret such contradictory positions?

    1. To win the leadership contest they have to appear be Brexiters.
      But without committing so far that its impossible for them to Remain (once the staggeringly expensive EU invoice is received)

  4. Could you clarify the last sentence in the Tusk ‘remarks. It says “It will be our first informal meeting without the UK, among the 27 States.”

    Surely, until an Article 50 notification is made only the result of an advisory referendum is known. Why would there be any absence of the UK in EU meetings until Article 50 notice is given? The UK remains a full member of the EU.

    1. There is nothing stopping any group of EU member states meeting as they like. It’s not an ‘EU meeting’ in any formal sense (and no legal or policy consequences can flow directly from it) but of course it is an influential new way of doing stuff…

      There is a contradiction in the ‘EU’ position. Brussels is variously hooting that we stay as EU members with all rights and obligations (ie to keep paying), but Brussels also seems to be edging (improperly?) towards marginalising us. Only part of the much wider confusion!

    2. Wondering the same thing Mr Damper is wondering. We are still in the EU, why are we not attending meetings?

  5. My own piece following the Leave vote looks at the diplomacy/negotiation aspects of the Article 50 non-triggering. I think that JoK is over-estimating the significance of this:

    “Note that there is nothing to say when Article 50 is triggered by the country concerned. That’s why David Cameron has wisely left it to his successor as Prime Minister to decide that in a few months’ time. Likewise it’s up to the country concerned to ‘decide to withdraw’; the others can’t throw a member out.

    Once Article 50 is triggered, there is up to two years (or more if all concerned agree) to negotiate a new agreement between the withdrawing state and the EU.

    Therefore what?

    The smart thing now as I have argued at length here and elsewhere is for key European leaders to st down calmly but with some new urgency and consider what new arrangements as between the EU/UK and for the EU itself are going to be credible and sustainable with voters. Whatever happens the EU treaties now have to change in the coming years. It’s highly unlikely to be possible or desirable politically simply to have everything else continuing as before but with the UK not in the EU club.

    In other words, the legal forms are important but they don’t matter. What matters is answering the key strategic questions. Then you find the legal language to make it all happen.

    It follows that the key negotiations can be conducted and concluded in a couple of years without Article 50 being triggered at all. Or, perhaps, Article 50 will be triggered only when the clear outlines of a New Deal have been identified, with the Article 50 process kicking in to launch the legal formalities needed to finish things off.

    In short, all sorts of options are possible. So don’t panic if no one option quickly emerges…”

    This is NOT a legal issue. It’s a huge policy negotiation with all sorts of legal twists and turns, and many sharp divisions on both the UK side and the EU side over both process and sane outcomes.

  6. Why has Parliament, as the body in which our version of democracy supposedly resides, not been asked to debate & vote on whether to accept the results of the referendum, as we would expect them to vote on any other advised rule change, however minor? They never usually bother about the “will of the people”, but suddenly it seems as if it’s the only game in town, and they have no say in the matter.

  7. Thank you for your various clarifications on this complex issue, I have found them enormously helpful. There is one issue which no one seems to have addressed. Is it possible, as negotiations come to an end in two years+ for the British government to look at the terms and say ‘we cannot live with those we wish to rescind our notice to leave’? In other words does Article 50 provide a ski slope on which we can stop, or is it a parachute jump?

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