Boris Johnson had announced during the Brexit campaign that he may just not invoke Art.50 of the EU Treaty and prefer to negotiate Brexit from inside the Union and keep the possibility to block EU decisions to force British positions. At the time I took that for serious and therefore thopught about possible counter-measures. In the end this debate became irrelevant because Theresa May decided to keep in line with proper procedures. So this debate is of historic interest only. However, it shows how trust between the EU and Britain slowly deteriorated. The nasty campaign had damaged the relationship - people like Boris Johnson were certainly not trusted.
Short notice: do we have to wait for the letter from London
to invoke Art.50 of the Lisbon Treaty ?
Published June 26, 2016 with changes until July 21, 2016
© Georg Boomgaarden
Addition on 4th of July, 2016
There was an interesting article on this by Andrew Duff under
Everything you need to know about Article 50 (but were afraid to ask)
Do we have to wait for the letter from London to invoke Art.50 of the Lisbon Treaty ?
(last changes on July 21st)
Prime Minister David Cameron had declared that he will resign in October and leave the notification along Art.50 Lisbon Treaty to his successor. Then everything accelerated and we already saw Theresa May becoming the new Prime Minister with Boris Johnson as Foreign Secretary and David Davies being the negotiator for Brexit. It is still unclear if Parliament has to be involved to endorse the result of the non-obligatory referendum. When this is cleared the way will be free to notify the will to leave as foreseen in Article 50 of the Lisbon Treaty.
Without a notification from London asking for Brexit negotiations about the consequences cannot start. Some believe that without a written notification the clock cannot be triggered that limits negotiations to two years. Boris Johnson had declared during his Leave-campaign that he would possible not send such a letter at all, but negotiate a better deal for Britain from the inside of the Union, and only trigger the clock of the two-year-timeframe afterwards. This is absurd. The 27 gave Britain some time to notify, but this cannot and must not be used to filibuster.
Art.50 does not mean, that Brussels has to WAIT for the letter, but that the letter HAS TO BE WRITTEN – that the application for Brexit has to be sent immediately after all formal conditions to write it are fulfilled. Then postponing it is similar to a protracted bancrupcy: it is a violation of the due process. The juridical service in Brussels could state that all conditions for the application are already public and that the timetable for the 2-years starts at least after a parliamentary ratification of the result of the referendum (in case it is necessary postponing the parliamentary process would also be a violation of due course). The 27 could endorse the view of the juridical service and trigger the clock without waiting for a written notification.
Under normal circumstances it would have some logic to give the British institutions some time to prepare – although they could perfectly have done this before. It is not the problem of the EU if the Brexit camp is heterogeneous and still full of enthusiasm instead of sober and clear concepts. However the announcement by Boris Johnson of tactical games and to link the Brussels timetable to the necessities of the British Conservative party is indecent and unacceptable.
The 27 could invoke international customary law which is also enshrined in written international law that a negotiation must take place in good faith and the interpretation of a treaty in a way that makes its core goals senseless is imadmissible. So the 27 could decide that by publicly declaring that „Brexit is Brexit“ and possibly endorsing this in parliament the notification has been effected and that the two-year-clock starts ticking. If the British government wants to challenge that view it could perfectly appeal to the European Court of Justice (smile).
Some speculate or hope that parliament could decide to ignore the result of the referendum. A good reason would be to declare that it was based on lies and hate: Parliament could assert itself as the guarantor of sober and rational decision making. But this would trigger upheavals in England, the voters would rightly feel fooled. So I think this is unrealistic.
The time of insecurity about the new relationship between Britain and the EU will be dangerous for all sides, especially for the UK. So it is irresponsible to delay the notification and with that the negotiations – they should be finished as fast as possible. The conditions for Norway (membership in Schengen, freedom of movement for EU citizens, contribution to the EU-budget etc.) seem to be unacceptable for the stauch Brexit-campaigners. However a majority in Parliament could decide that this is the best option for Britain. If this is not possible, one could copy the EU-Canada Free Trade Agreement as a blueprint – the status for Britain would then be much worse than under a Norway-like agreement, but it is the UK that has to choose what it wants – and it is the EU having to choose if this is acceptable.
Scotland will start to debate independence again. I will not comment if this is good or not. But under given circumstances it would certainly be very easy for Scotland to stay in or rejoin the EU, because the country already applies EU law (like the UK) for years. So only marginal questions about representation in the EU Parliament or voting rights quota have to be discussed – that could really be fast track.
© Georg Boomgaarden