Godot has turned up – the predication and reality of the Article 50 notification

27th March 2017

This week, unless something unexpected happens, the Article 50 notification will be given to start the formal process of the United Kingdom leaving the European Union.

Last summer, after the referendum result, it seemed unlikely to me that this would happen.  The reasons for this view were:

– the referendum was not legally binding and so a separate and distinct legal and political decision still had to be made;

– the process of Brexit would be unimaginably complex and could not be accomplished within the two year period envisaged by Article 50;

– there were significant problems for Brexit because of Scotland and Northern Ireland;

– very few people with power in Westminster or Whitehall were in favour of Brexit;

– there is a tendency in British politics to put things off – indeed, procrastination is a principle of the British constitution (for example, the 1911 Parliament Act was intended to be a temporary measure and is still there); and

– there was no clear or agreed alternative model for the UK outside the EU.

Each of these reasons remains fair.  Not even the most ardent Brexiteer could object to more than one or two of them.

But the Article 50 notification is still being made.  The reasons set out above, although sound in themselves (in my view) were not enough.

So what happened?

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There were two things which happened which meant the Article 50 notification is being made this week, despite the reasons set out above.

The first thing is the dull one that it became apparent that various difficult issues could, in principle, be dealt with on a transitional basis (or “adjustment phases” as the government called it).  This would give the government and the EU more time to solve the problems.  The two years would not be an absolute bind.

The fact that such transitional/adjustment arrangements do not yet exist, and may not exist, is beside the point.  There is room for manoeuvre.

The second thing is the more exciting one of politics.

This became plain at the conference speech in Birmingham last October.  What had been vague statements about “early next year” became a concrete commitment to make the notification by next March.

Even the litigation to establish that an Act of Parliament was required did not prevent this political push.

The Act of Parliament was passed by a Conservative majority in the Commons, elected only in 2015 on a manifesto commitment to “safeguard” the UK’s position in the EU.

The Mandate (and it warrants a capital letter) of the referendum result would brook no opposition.  The people had spoken, and so on.

And so the prime minister’s self-imposed deadline of March is to be kept.

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Being doubtful about this particular Brexit adventure has led to me being dubbed a “Remaniac” and worse.

But this is not the case.

My own views, for what they are worth, are what used to be called “Eurosceptic”.

(I was once research assistant to the anti-EU William Cash MP, alongside my university contemporary Dan Hannan.)

I have never written in favour of the EU; I have opposed every treaty and substantial treaty amendment since Maastricht; and I would have voted against membership had I been able to in 1975.

In essence, I would have preferred the UK not to have joined in the first place.

And a good part of my wariness about the EU is because of the ratchet effect: after 40 or so years, the EU and UK polities were becoming evermore intertwined.

Westminster and (especially) Whitehall were becoming dependent on EU powers and provisions.  Thousands of pieces of secondary legislation were implemented without scrutiny or indeed without any thought.  I do not think membership of the EU has had a positive effect on UK law and policy making.

As a liberal, I was (and am) a fan of the single market and the four freedoms, especially freedom of movement; but also as a liberal, I was unhappy about the lack of transparency and accountability of EU law making.  Brussels for me has never seemed either liberal or democratic.

So as and when the UK ends up outside the EU, I will not be especially unhappy.

My concern is not with the destination but with the journey.  All because you want to get somewhere, that doesn’t mean you will get there.

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Just after the referendum result, my doubtfulness about the Brexit adventure was expressed in a tweet which went “viral”.

The tweet was a riff on Waiting for Godot.

Well: Godot has now turned up.  And neither Vladimir nor Estragon perhaps know what to do now that Godot has turned up.

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On a final note, I just want to set my incorrect prediction in the following two contexts.

First, I only held the view that the notification was very unlikely until the October conference speech; by January I held the view it was likely; and by February I saw it as virtually certain.

Second, I expressed the following views on pretty much the same sceptical basis and they all still seem sound:

– the referendum was not legally binding (and the Miller litigation and the Act of Parliament showed this was the case);

– repeal of the Human Rights Act and/or the UK leaving the ECHR is extremely difficult (and this has been abandoned for at least the foreseeable future);

– the UK would go for “hard Brexit” because it would be easier than a “soft Brexit”; and

– that Theresa May’s public statements meant that the UK would have to leave the single market (which was then admitted).

The Article 50 notification prediction tuned out to be incorrect.  Godot has turned up.

But the reasons which were behind that prediction are still there.

Making the notification is the easy step.  It is the one thing the UK has complete control over, and this week it will be done.

Then the complicated process of Brexit will begin.  Nobody knows how it will end (or if it will end).

But, as I said back in February:  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.

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12 thoughts on “Godot has turned up – the predication and reality of the Article 50 notification”

  1. I am an ardent European and hopeful that common sense may still make a timely appearance. Whilst the points that you make about the inter-twinning of EU and UK law are correct, this was not done in a vaccuum and “imposed” on the UK, but agreed to by successive UK governments that had a hand in framing the laws. It has always been too tempting for politicians (across the continent) to blame the EU for their failings and lauder its successes as their own.
    Now, we are faced with the Herculian task of extricating ourselves from the rest of the EU. This is analagous to the case of adult, conjoined twins who decide to go under the knife in mid-life – unwise and life-changing. It would be well to know which twin had which vital organs before going under…

  2. “elected only in 2015 on a manifesto commitment to “safeguard” the UK’s position in the EU”

    The actual wording is “safeguard British interests in the Single
    Market” (https://www.conservatives.com/manifesto), which is further clarified in the following excerpt:

    “We want to preserve the integrity of the Single
    Market, by insisting on protections for those countries
    that have kept their own currencies. We want to expand
    the Single Market, breaking down the remaining barriers
    to trade and ensuring that new sectors are opened
    up to British firms. ”

    In addition, Harmann on the Brexit campaign trail said “nobody is talking about leaving the single market” and Johnson, Gove and others used Switzerland and Norway as examples of prosperity outside the EU – both in the single market.

    So, although a mandate to take the UK out of the EU may be there. It is hard to see any mandate for leaving the single market.

    1. Hear hear Alastair! There is absolutely no mandate to leave the single market and just because there are those who voted for Brexit because they were anti-immigration of all nationals, I keep trying to understand why the government seems to believe that it is necessary to restrict the free movement of EU nationals as part of the Brexit process. Surely leaving just this one issue unchanged would make membership of the single market possible and in any case, WE DID NOT VOTE ON IMMIGRATION and just because some people did does not mean we should change the laws on immigration. I am not sufficiently knowledgeable to comment on the ECJ or our budgetary responsibilities but I DO NOT believe that Brexit would have won had all voters realised that it was also a means of tightening our borders and stopping free movement of workers without further consultation. It is wrong of the government to change this aspect of the legislation without support and I don’t understand how it is possible for it to happen right underneath our noses.

      1. I think abandoning Freedom of Movement is a red line. If that is kept then a lot of areas of the country where FOM has meant lower wages and increasing accommodation costs are going to get quite ugly.

        Jus to re-iterate an obvious point, you don’t need FOM to attract workers for jobs where there are shortages of labour -most nations manage that without having to open their borders. What FOM gives you is no ability to stop large numbers of workers being brought here because they are cheap, and a collapse in training of indigenous workers because you can get the training for free when you import a worker. Quite way failing to invest in giving our young people the skills they need to be successful in the modern world is regarded as progressive politics is something I struggle to understand.

        There were uncertainties on both sides. If we had voted to Remain then as soon as there was any change we would have had lots of “we didn’t vote for this” comments. This is inevitable when you have a referendum, but parliament in its wisdom voted to have one by a ratio of 6:1, and here we are.

  3. That room for manouevre seems to be based on the assumption that the UK can temporarily enjoy all the trading rights of EU membership without the obligations eg freedom of movement of people, the ECJ, budget contributions etc. This is a fantasy. I’d say A50 is being triggered either through ignorance of what lies ahead or a deliberate shift to WTO trading (under multiple disputes). If an orderly continuation of trading relations with the EEA is the desired outcome then A50 is an entirely irrational act. I’m struggling to see it in any other light.

  4. Relieved that “notification day” is not 1st April. The “leaping leavers” of nearby Sunderland probably thought that leaving the EU would be as simple and straightforward as cancelling an SAFC season ticket; methinks that those naïve thoughts will be relegated now.

  5. I suspect that the main element that was not necessarily predictable is the mood music coming from Brussels, ie the very firm (and quite implacable) mantra of “no negotiation before notification”. Like the equally firm insistence we’re now seeing on settling the money issue first, this was in no way foreseeable and something of a surprise. A report for the EU Parliament (the reference escapes me, I’m afraid) regarding the doomed Constitution, which had the same Article 50-style provision, actually envisaged that in the (unlikely) even of a member state wanting to withdraw there would probably need to be some prior negotiations before the formal process was “triggered”. This was certainly widely anticipated on the British side. The fact that the “no prior negotiation” mantra was adopted swiftly and without deviation makes it seem inevitable, whereas in fact it is both surprising and (arguably) irrational.

    If prior negotiations had been allowed, one can see that the formal triggering of Article 50 could and almost certainly would have been delayed for years, and perhaps indefinitely. However, with the “other side” refusing to discuss anything before Article 50, the UK government was essentially forced into adopting a timetable and sticking to it, even though the timetable is in no-one’s interest.

  6. Most absurdly, A50 is triggered to appease a party that as of today, having lost Douglas Carswell, has not got any MPs at all.
    Wouldn’t it have been easier to tell Farage, “Why do we have to listen to what you say at all, or do what you say? If you’re in actual fact, politically speaking, nobody?”
    Unfortunately Farage cried wolf, or ‘Fire!’, and we dutifully headed for the exits and stampeded and crushed each other, or will soon. Great cure!

  7. The primary thrust of the vote leave campaigns was for the UK to control its borders and regain its Sovereignty, and to make its own trade deals. The consequence of a leave vote therefore was to have to formally leave the single market given the rejection of i) freedom of movement of people and ii) the primacy of the European Court of Justice. And iii) to leave the customs union of the EU given members are excluded from doing their own trade deals.
    Please stop looking in the rear view mirror!
    The focus now is to obtain equitable terms for access to the (some/all) single market. Failure to reach an equitable agreement will likely mean World Trade arrangements albeit on preferred status terms – this would be the real hard BREXIT.

  8. “… In no-one’s interest”?

    Really?

    Viewed from Brussels, the United Kingdom has long ceased to be a political partner in tbe European project and, under Cameron, we had become toxic.

    The dominant image of Britain, in Europe, descended into the distasteful spectacle of Farage’s distasteful antics and the Murdoch media’s disgusting campaign of mendacity.

    And now Murdoch’s most prolific liar on matters European is our Foreign Secretary.

    It is difficult to imagine how any politically-astute European could express any interest in Britain’s continuing presence in the EU.

    Ironically, Britain was and could still be a force for good in European economics: London has been a land of opportunity for young Frenchmen, even after the financial crisis, in a way that the sclerotic economy of Paris is not; and our openness to overseas investment has been an enormous benefit to the European economy as a whole.

    However, the May Cabinet are at best indifferent to economics in the face of their internal political imperatives and, viewed from Brussels, we appear to be a wilfully destructive and economically hostile rogue state in the making.

    Better, perhaps, that we sink alone and unassisted, rather than play out our self-destructive imperatives as a hole below the waterline of Europe’s wayward but seaworthy vessel.

    Further – or rather: nearer to home – in all examination of a damaging and costly policy in which ‘the national interest’ appears to be the loser, there is someone with a profit. They might not be someone pleasant: but you can be sure that they matter more in Westminster than you and I.

    We would do well to study DEFRA – the corrupt and captured Min of Ag of old – and ask yourself: “Whom do they serve?”, for someone stands to gain immensely as our smaller farmers are all forced to sell up, beset by losing their cheap foreign labour, their subsidies and their markets.

    I do not doubt that every other ministry in Whitehall has a similar story: however bad it is, it’s definitely playing out in someone’s interest.

  9. Godot is having second thoughts. As of this morning (5 April 2017), Theresa May has hinted at keeping the four freedoms during any transition (or in her words ‘implementation) phase. Quite what they might be ‘implementing’ is anyone’s guess (including May’s and Davis’s since they seem to be making this up as they go along). May has also finally acknowledged that ‘legal issues’ mean that the EU can’t sign an FTA until the UK has left and become a ‘third country’ (as countless people have pointed out for months now).

    This all raises the interesting possibility (remote I grant you) that the Whitehall farce will settle down to a classic Whitehall/EU fudge. May clings on to reality and power long enough to agree a reasonably amicable divorce by formulating (“in the interests of international peace and stability”) an extended transition period (of indeterminate length). This will be spun as avoiding a cliff-edge and to giving industry and “our European neighbours” time to adapt to the new reality of our ‘independence’ (or some such blame shifting guff).

    This transition period will look pretty much like the current arrangement we have with the EU (single market, four freedoms etc) except we won’t have any MEPs and we won’t have a formal seat at the top table (so no power of veto, no vote in the council and no commissioners but maybe some consultation on the side). It will continue as long as necessary (and necessity can demand a mighty long time) to agree a full deep, meaningful, extraordinary, robust, global, red white and blue etc FTA.

    May will celebrate a victory because we won’t have to pay the large lump sum exit bill (which will convince the tabloids that May “has won”). Instead we will simply continue paying in as normal throughout the transition – and stay involved in all the expenditure too – including CAP payments to keep the landowners happy. We will be out of the EU in name only. Godot will linger in the wings waiting for his entrance (and no one will mention the rebate on pain of bannishment).

    Everything will appear to change while staying pretty much as they are (to misquote and mangle the Leopard).

    @HuwSayer

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