Predictions and Article 50

1st February 2017

Sometimes you get things correct.

Over the last year or two, I have set out here, or at the FT or on Twitter, the following things which seem to have weathered well:

– that the hurdles to repeal of the Human Rights Act would be difficult (that Act’s repeal is now delayed or put off altogether);

– that the EU referendum was not legally binding (it wasn’t, and that is why there had to be an Article 50 Bill – and note this was pointed out before the referendum); and

– that the necessary implication of Theresa May’s stated views was that the UK would be seeking to not be part of the Single Market (which was then admitted by the Prime Minister in a speech a week afterwards).

*

Getting things right is nice, but sometimes it is far more interesting when things don’t go as you think they will.

Last summer just after the referendum result I thought it highly unlikely that the Article 50 notification would be sent, if it was not sent straight away.

(A couple of times I even slipped and said “never” but that was only my view for a few hours.  Usually I was careful to say it was improbable not impossible.)

I am not a fan of the EU and have never written in favour of it.  Had I been able to vote in 1975, I would have voted against membership.  I have opposed every EU treaty since Maastricht.  So this was not wishful thinking (as far as I can tell). In fact, it was almost the reverse.

One reason the UK should never have joined the EU is because it would be so difficult for the UK to leave.  UK law and policy became entangled with the EU so much one could not see where one began and the other ended.

Given this immense entanglement (which will take years, if not decades, to chop away), I thought the government would go for the path of least resistance.  Very few people with power in Westminster and Whitehall want the UK to leave the EU.  There is a national habit of putting things off: procrastination is a principle of the British constitution.  And there are always events to knock things off course.

I just though there would be delay after delay.  And I still think this is a fair view, on the basis of information available last summer.

*

So what changed?

Two things changed.  Both are significant.  The first thing is somewhat amusing to admit (that I thought a politician would be rational), but it needed the second thing.  The first one by itself was not enough.

The first thing is that Theresa May became determined for political reasons to push for notification, regardless of any other factors, and even if there was no rational basis for such speed.  This determination was shown in her conference speech.

The second thing is that it became plain the two year period of the Article 50 process could be circumvented: things could be put off and dealt with as part of transitional arrangements and adjustment phases.

So in early October, as the facts changed, I changed my view: I still thought notification more unlikely than not, but it was more finely balanced.

And in January, as the sheer political determination became starker, and the thinking about offloading things into transitional arrangements and adjustment phases became more commonplace, I changed my view to the notification becoming more likely than unlikely.

And today’s Commons vote on the Article 50 Bill now makes the notification highly probable.

None of this makes the process of Brexit any easier: the UK is still moving towards a complex and unpredictable and time-consuming predicament. But the path to the Article 50 notification which commences the formal Brexit process has become clear.

My only prediction now is that those who doubted that the Article 50 notification would ever be seen will get a good-natured ribbing by those who never had such doubts.

25 thoughts on “Predictions and Article 50”

  1. Cold comfort, Jack. What if it becomes increasingly apparent that Brexit as currently “proposed” will damage the bulk of the population? We still have to look at that the fact that Brexit will remove rights and the remainers are not making enough of this. Will any Party (apart from the Lib Dems) argue for this? The people who supported remain are disenfranchised.

    1. No Vivian that role seems to fall largely to the ordinary & admirably extraordinary citizens & lawful residents in the 800+ grassroots organisations participating in Pro-EU groups & lobbying for protections of EU citizens living in the U.K. & UK citizens living in the 27 member states.

      @NoDustEU

    2. Apparent to who though? I suspect that even most of the big losers from brexit will require years before they accept that they need to blame themselves for voting to leave and/or blame the charlatans that talked them into it.

      Polling suggesting that a third of the population would support walking away with no deal rather than a ‘bad’ deal suggests many people, or rather many voters, are stuck in an ultimatum game.

    3. Vivian, I would disagree that rights will be removed as any Government that does this would then be voted into obscurity – we shall be regaining our sovereignty after all?
      Unfortunately there does not appear to be any viable alternative Party to choose from that actually cares one jot about the people they are supposed to be representing, part of what got us into this mess in the first place.
      Being a member of the EU seems to have done little to prevent national debt reaching eye watering levels nor help our ailing health, education, housing, security and emergency services. Just my opinion (non University educated btw!)

      1. Being a member of the EU did little to prevent those things because we were always sovereign.

        My rights as an EU citizen are being removed by Brexit. There is no doubting that.

      2. Rob H, do you realise that you are claiming the government will retain our right to vote for MEPs in EU elections after we’ve left the EU? Because that’s one of the rights that’s being removed, and it doesn’t seem very likely that the government will keep it. And our right to refer public bodies to the European Court of Justice? And our right to live and work in any EU country?

    4. They’re not disenfranchised, they just lost the vote. Were Labour voters disenfranchised when the Conservatives won the election? Were nationalists disenfranchised when the Yes campaign lost?

      For that matter, would the numerically greater Leave voters now be disenfranchised were we to negotiate some third way short of leaving?

      You are devaluing the term disenfranchised when billions of people around the globe literally do not get the opportunity to vote in free and fair elections.

      1. We are disenfranchised as it seems the Brexit process is to be undertaken without so much as a nod to the wishes of the nearly half of voters who wished to remain – ie the hardest Brexit possible. In a normal election the supporters of the losing party may see government actions with which they profoundly disagree, but there are (assuming an effective opposition, if one can remember such a thing) checks and balances to prevent anything so similarly extreme and, after all, the boot may transfer to the other foot in five short years or less.

        There will be no return from Brexit. Even the possibility of rejoining, requiring as it would adoption of the Euro and entry into Schengen – both unlikely ever to be politically acceptable, is so small as to be non-existent.

        1. Tim
          You are so right. In the course of ordinary electoral politics, no matter how much one may disagree with the government of the day, one has the ability and right to fight another day – in 3, 4 or 5 (or sooner) years i.e. at the next election.
          Brexit closes a door. Thus, a 50%+1 threshold is actually undemocratic. There is no next time. Hence, a much higher threshold is called for. Whether written or unwritten, a constitutional principle must require something closer to consensus than dissensus for an irreversible or long-term change. 50 – 50 is perfect dissensus. And there was perfect dissensus among the four nations on Brexit.
          To me the referendum was and is illegitimate. A legitimate vote would have required a majority of the nations of the UK and at least a 60% threshold.
          The old rule that a candidate lost his/her deposit if they failed to get at least 50% of the votes of the winner provides guidance in this matter. Two to One might well be the test.

  2. Good Natured ribbing? What can he possibly mean by that?
    The best result may well be seen as Colchester/Cambridge/ Oxford/Southampton. We’ll have to see how that goes. After all, we have done this several times before.

  3. I’m sure you’re not anti-EU simply because of legal entanglement. Surely it’s the benefit to people that counts?

  4. “UK law and policy became entangled with the EU so much one could not see where one began and the other ended.” This sentence encapusualtes why we are leaving. The British (and I include myself in this and I am deeply pro-EU) have always seen the EU as ‘alien’; as some kind of imposition. They do not see their image in its rules or structures. They almost never refer to the EU as ‘us’, but rather ‘you’. However, this is far from the reality (at least as ‘Brussels’ sees things). The Single Market is massively influenced by the UK’s views. It’s foreign policy priorities, is also largely indistinguishable from Britain’s. The UK has managed to increase the importance of London as the EU’s financial centre despite not being in the Euro.

    Globalisation may take some big hits from the current protectionist and nativist Zeitgeist but I would assert that it is likely to stay. The logic of globalisation requires comon rules. So whether it is the EU, the UN treaty system, or the ICC, necessarily the UK will be bound by some rules (law) which is not ‘organic’. To me this is not so relevant. The key questions are what is that we do not like? Are these trade off for things that help us prosper and fashion the world in way that we wish? Do they help us to deal with the regional and global challenges that we cannot address alone? Do they ensure a fair, clear and stable political-economic system?

    To conclude, I think that if we are to remain part of the global world we need to recognise that much of the international legal order is necessary and crucially, it is beneficial to us. Importantly we need to stop regarding it as alien and accept that it is part of ‘us’ as we are (a big) part of it – they are inseperable. What is left is domestic policy – how to ensure that enough UK citizens are not excluded and have fair access to the wealth and services of the country. All recent governments has singularly failed to deliver on this and found the easy path to explain their shortcomings – to blame the outside world.

  5. “UK law and policy became entangled with the EU so much one could not see where one began and the other ended.”
    As a Canadian and a federalist, I was no proponent of Quebec separation. A referendum with 50% + 1 threshold never was an acceptable threshold as it (if close as was Brexit) would mean a population in almost complete dissensus on the matter. (Hence, Canada’s Clarity Act). I still hold that Brexit was deeply flawed because it never dealt with fact of 4 nations. BUT I AM CONFUSED BY SOMETHING. WHY THIS DEGREE OF ENTANGLEMENT. If a Quebec or a Scotland or a Catalonia were to separate, after centuries of union, I see lots to negotiate, but as for laws etc., I don’t see this as complex as stated. I’d love to see an explanation and a comparison

  6. Hmm,
    I think there is another thing that couldn’t be predicted the day the referendum results came out and I fear it underlies much of what you list here.
    This thing is: the clear and visible determination of the new government to use Brexit as an excuse to expand its own powers and autonomy.

    All governments want more power, granted, but _this_ government has been relentlessly exploiting the situation with a determination that has surprised even me (that is: I was expecting the worst and found out that reality surpassed my gloomy expectations).

    If I’m right, that’s behind the first unexpected change in your list, and naturally I think we should never forget that it’s a disturbing trend (if left unchecked). I say all this because you have been very active in explaining why and how the government room for action needs to be constrained, so I’m a bit surprised you did not allude to this issue here (or maybe I’ve missed it?).

  7. David:
    Critical to your conclusions is the second thing that you conclude has changed: that “the two year time period in the Article 50 process could be circumvented…” If a withdrawal agreement were reached and entered into force within the two year period, such an agreement might have terms that effectively make the Article 50 process open-ended in time. Otherwise, the U.K. faces the termination of all of the treaties and outsider status in 24 months, unless there is unanimous consent to an extension of time. There will inevitably be some of the 27 who will refuse consent to extend the 24 month time limit. The hard question is whether such an interim withdrawal can be reached and put in force within the 24 months and what concessions might be needed to be embedded to obtain such concessionary relief.

    The negotiations contemplated under Article 50 will always be difficult in its structure of one against 27 (each with veto rights on some matters) and the time limit. Less complex free trade agreements have rarely (if ever) been negotiated in such an abridged time frame. Both the U.K. and the other members of the EU would be better served by settling the terms of a withdrawal first and then using Article 50 to implement an agreed result.

    Ms. May’s government seems to have received inept legal advice throughout. More dangerously, there appears to be little sensitivity to the possibilities of seriously destabilizing events elsewhere that might distract from, or completely overwhelm any negotiation process. There are forces loose in the world that will be delighted by such Nacht und Nebel outcomes threatening a chaotic end to the European experiment. In a world already bedevilled by uncertainties, one must fear that this process will not end well for the EU or the U.K.

    Regards Dick

  8. Consider yourself good-naturedly ribbed. I’d be interested in your views on the proposition (from Guy Verhofstadt and others) that pro-EU Brits might be able to have some sort of EU citizenship after Brexit. I’d sign up, but is such a concept really feasible.

  9. We were not voting to join in 1975, we had already joined, we were already a member. This is at heart the problem and the reason so many older people voted to leave…they remembered.

    1. Yes a demand to return to parliamentary sovereignty which they had anyway as a result of disagreeing with where parliamentary sovereignty took them

  10. The A50 agreement itself will be policed by the ECJ – the transitional arrangements will have to be too.There is simply no way May can agree to this,given her self imposed red lines.Notification = car crash.As a Brit in Brussels,I just hope it doesnt get so nasty that they can’t do a bi-lateral deal on citizens rights.

  11. I never understood why you went so far and so often in predicting that A50 maybe would never be triggered: http://charlescrawford.biz/2016/06/29/brexit-2-now-what/

    What the law says is one thing. But the political reality of not daring to be seen as defying the result of the referendum vote for Brexit on such a high turnout made Brexit inevitable, and A50 is the agreed if not best/only sensible way to do it. The only issue was when A50 would be triggered and as I said at the time, that might take a while as everyone sorted themselves out.

    Plus, of course, once a member state’s public opinion has voted to leave the EU, ‘everything changes’ psychologically in Brussels. A bit like a married couple when one of them says “I’ve decided to look into getting a divorce”. Even if the marriage staggers on, something about trust and shared commitment is lost forever.

    All of which said, a graceful expression of your change of view.

    How exactly to notify EU HQ under A 50? My thoughts on that subtle issue: http://charlescrawford.biz/2017/03/20/article-50-triggered/

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