This recent summary by Donald Tusk of the possible outcomes of triggering Article 50 raises two sorts of question. The first is about the debate within the UK, the second about the debate within the EU.
Within the EU, the 2009 Treaty of Lisbon provided that 'Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements', and then set out the EU procedures for dealing with this. But in the case of the UK, these constitutional requirements are themselves unclear, and the occasional lone voice has been heard within the EU, not least from Wolfgang Schäuble and Nicolas Sarkozy, suggesting that the EU must change and a way be found to keep Britain in the EU.
Within the UK, it is clear that the hard Brexit option was not part of the official Leave campaign, so can hardly be said to have been voted for by the British people. In any case, the British people spoke with a discordant voice, the people of Scotland and Northern Ireland having voted to Remain and those of England and Wales to Leave the EU.
Politically, the consensus has been that the referendum result must be addressed, by dealing with the issues raised by British Government neglect of the poorest since the Thatcher era, and by leaving the EU. The immediate debate has therefore focussed on what terms should be sought in the negotiations with the EU and on the possibility of another referendum to ratify the resulting treaty.
There is however no consensus on the terms to be achieved or the mechanisms for triggering Article 50. Regardless of how the May Government resolves its differences over the terms, the mechanisms must respect the British constitution. Historically, treaties have been a matter for the royal prerogative, normally exercised through the Privy Council on the advice of the Prime Minister, but the practice of seeking a Commons vote, as for example over the signing of the 1992 Maastricht Treaty, means that the advice of Parliament may now be required, a matter which is currently before the courts.
David Cameron's resignation statement began with the remark he had spoken with the Queen, and continued with his decision to leave the invoking of Article 50 to his successor, contrary to his original position that he would invoke it the Monday morning following a vote to leave. Given the discordant voice of the British people, the Queen is likely to be mindful of her coronation oath, 'to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, according to their respective laws and customs' and to 'cause Law and Justice, in Mercy, to be executed in all [her] judgements'.
On the EU side, there has been clarity that a soft Brexit is not on offer, but for reasons which suggest weakness: the fear that more countries will leave if Britain is given a good deal, and that the rise of populism and xenophobia must be fought, not given in to. In a situation of political weakness, there is always the letter of the treaties to cling to, which will force Britain out if no deal is reached within two years, and would permit the EU to treat the UK as harshly as Greece has been treated in the Eurozone crisis.
My personal view is that the lengthy process on the British side of agreeing what terms to negotiate and of establishing the constitutional mechanisms for leaving the EU means that the EU has been given time to think. The 27 seem to have an agreed negotiating position in the event that Article 50 is triggered, but not what to do in the face of unending uncertainty. Theresa May's statement at the Conservative conference that Article 50 will be triggered by the end of March 2017 is an internal political deadline which will not necessarily be met if the Cabinet cannot agree on what terms to request. She has meantime demanded to exercise the UK's rights as a full member, protected by Article 50 until the moment of leaving, including taking up the British presidency in the second half of 2017 despite her earlier relinquishment of it, so that the UK will join the trio of states exercising the presidency from January 2017 to June 2018.
This period gives ample time for the EU to think of alternative solutions. It has after all a record of devising alternative texts when a referendum does not go the way it would wish. It has already agreed in the Cameron negotiations that the purpose of freedom of movement is to work, and, while denying this offer has any bearing on negotiations with the UK, has offered to Switzerland, to overcome a contrary referendum there, the possibility of giving preference to Swiss workers before admitting EU workers. At present member state parliaments have input into EU legislation, and the recent Walloon veto on the CETA treaty suggests a similar right may have to be extended to member states, even if EU legislation is slowed down as a result.
Why should the EU consider these two changes? Certainly not to satisfy the British people's acceptance of the leave arguments of taking back control and in particular control over borders. Rather the fundamental purpose of the EU is to make war unthinkable among its member states, and it has sought to achieve that through binding together their economies and thus getting individuals to know each other better. If nationalist reactions have been produced by extending free movement regardless of its original purpose, and by allowing big foreign companies to escape the jurisdiction of courts throughout Europe, it is necessary to look for ways of making economic integration acceptable to the citizens, and that will involve making sure that all citizens feel the benefits to themselves from an open, internationalist, but regulated, economy.
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