Article 50 of the Lisbon Treaty sets out the procedure for a member state leaving the EU, as would be the case for Brexit. In an earlier post, Alan Renwick, Deputy Director of the UCL Constitution Unit, discussed how Article 50 could lock the UK into negotiations that could tilt the balance of power away from the UK and make a second in/out referendum on an improved renegotiation package (an idea floated by Boris Johnson among others) impossible. But could these problems be avoided by not using Article 50, as some Leave campaigners have suggested? Alan Renwick argues that the use of Article 50 would, in practice, be unavoidable.
Suddenly, the Lisbon Treaty’s Article 50 is the talk of the town. This is the legal provision setting out how a member state can leave the European Union. First, the departing state declares its intention to leave. Then negotiations are conducted between the departing state and the remaining 27. Either a deal is done and the departing state leaves on those terms, or, after two years, the departing state automatically exits (unless a unanimous vote of all the member states prolongs the window).
I spelt out the terms of Article 50 in detail in a previous post, and discussed the implications – including whether it would in practice prevent negotiation to stay in the EU on better terms in the event of a ‘Leave’ vote. In today’s Telegraph I discuss the politics around Boris Johnson’s hints of a second referendum to improve those terms. Here I focus on a narrower question that has been receiving much attention: Would the Prime Minister actually be obliged to invoke Article 50 in the event that the referendum delivers a majority for Brexit? Doing so would lock the UK into negotiations on quite disadvantageous terms. Some have suggested that Cameron could avoid this, and thus gain more flexibility for the UK in the event of a vote to leave: either in order to renegotiate Britain’s terms of membership, or to gain advantage in the negotiations for our terms of departure. But is avoiding Article 50 possible?
In purely legal terms, a referendum vote to leave places no obligation on the Prime Minister to invoke Article 50. Indeed, it places no obligation on him to do anything: the referendum is, formally, advisory only. In practice, of course, he will have to respect the result. But does that mean invoking Article 50?
David Cameron said yesterday in the House of Commons that it does. He said, ‘If the British people vote to leave, there is only one way to bring that about, namely to trigger Article 50 of the treaties and begin the process of exit, and the British people would rightly expect that to start straight away.’ But some might dismiss such words as tactical and predict a different line come 24 June if the vote has gone for Brexit. Would they be right to do so?
The route to answering this question depends on what he might be trying to achieve by not invoking Article 50. There are two possibilities.
Scenario 1: avoiding Article 50 to avoid Brexit
The first possibility is that perhaps the Prime Minister would steer clear of Article 50 in the hope of avoiding Brexit entirely. In his Telegraph article outlining his reasons for joining the Leave campaign, Boris Johnson said ‘There is only one way to get the change we need, and that is to vote to go, because all EU history shows that they only really listen to a population when it says No.’ That could be a claim that a Leave vote would give the Prime Minister the mandate to go to Brussels and demand a root-and-branch reform of the UK’s EU membership, rather than actual Brexit. Given that the other 27 member states want to keep the UK in, there is good reason to think they would be prepared at least to listen to such an approach.
The problem here is that it looks politically untenable on the domestic front. The Prime Minister insists – and will go on insisting for the next four months – that a vote to leave is a vote to leave. The options on the ballot paper will be to remain or to leave – not to try again for something else. The majority of Conservative activists – and possibly the majority of Conservative MPs – appear genuinely to want to leave. So it would be political dynamite for the Prime Minister to interpret a Brexit majority as anything other than what it says on the tin. And even if the present Prime Minister felt tempted to try, it is unlikely that his party would allow him to stick around for long enough to carry it out.
Scenario 2: avoiding Article 50 to secure better Brexit terms
The second possibility is that the Prime Minister hopes, by not invoking Article 50, to secure better terms for Brexit. Article 50 is not designed to give bargaining power to the departing state: the two-year cut-off, as I explained in my previous post, gives each of the remaining 27 members substantial power to push its own agenda. So the UK might be better off if it could negotiate its future relationship with the EU on a less skewed playing field.
Indeed, the Vote Leave campaign appears to recognise this. It says on its website: ‘We do not necessarily have to use Article 50 – we may agree with the EU another path that is in both our interests.’
One problem with this is that it isn’t immediately clear why the remaining states would agree to negotiate outside Article 50: the flipside of Article 50’s effect of weakening the departing state’s bargaining power is that it strengthens the hands of the remaining states. So why would they give up this advantage?
That rhetorical question is not entirely without answer: some ongoing member states might well prefer not to give certain other ongoing member states an opportunity to pursue their pet peeves. Nevertheless, many ongoing members will also want to make it clear to their own voters that the path to exit is fraught with dangers and indignities. They will have no reason to give the UK an easy ride.
In any case, there is no legal mechanism to exit except via Article 50. Everyone agrees that just leaving by repealing the 1972 European Communities Act without doing a deal would be crazy: it would entail, among other things, leaving without a free-trade agreement, which, under the rules of the World Trade Organization, would require the immediate imposition of tariffs on UK–EU trade. So we would have to invoke Article 50 at some point, and scope for game-playing would then return.
The unavoidability of Article 50
In short, in the event of a Brexit vote, Article 50 looks unavoidable. The idea that it could be held off to seek a renegotiation of ongoing membership is equally thwarted by domestic political imperatives. The idea that it could be resisted to secure better Brexit terms is scuppered by the interests of the other member states. The Prime Minister’s words on Article 50 are not just tactical.
These conclusions are founded not on law, but on the interaction of the rules with the politics. That means they are not certain: the politics could always play in unexpected ways. Still, when we vote on 23 June, we should do so on the presumption that a victory for Leave will lead us to Article 50.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.