Tag Archives: Article 50

BREXIT- The ongoing travails, courtesy of Article 50.

JR Max Wheel

17 Jan 2019


It is a pretty nearly accepted fact that triggering Article 50 prior to establishing some idea of what kind of exit from the EU was likely, acceptable and could be planned was aa major mistake. It was but just as bad was the notion that Article 50 could ever provide for satisfactory negotiations. Since it was only reluctantly accepted for inclusion in the Giscard drafted EU constitution aka the Lisbon Treaty. It was really designed to suspend or remove member states who had gone rogue and failed to comply with the EU’s provisions. As such being both a rules-based process and subject to a bizarre sequencing of withdrawal agreement and then well talk trade, this could never form the basis of any meaningful negotiation, other than staying put or be instructed how the EU wished a relatively large economy like the UK to leave. So, it has proved.

Michel Barnier is unquestionably a skilled( and perhaps typical) French bureaucrat , he Has also held all the cards since day one as enshrined in the Article, so it has always been a case of the UK negotiating on the back foot, whilst some fervent Remain voters have done their level best to throw a bagful of spanners into the negotiations whether by amendment or often clandestine meetings held with EU colleagues. This does not excuse for a moment the delay or incompetence of the UK’s negotiating team.  However, it was always the case that leaving an institution would be uncertain and hard to define other than in broad terms about the sense of loss of control of decision making – real sovereignty and the malign effects of capital as it slides effortlessly around the globe seeking better cheaper deals with scant regard for impacts on the host countries. This damaging effect – which it is true the UK could have tackled earlier and with far more vigour and the mishandled response by many to the 2008 financial fallout has and continues to produce a massive backlash – now visiting many EU member states.

I conclude that Article 50 was never fit for the purpose of negotiating the exit of a country like the UK or indeed of any major economy. Indeed Prof. Ingrid Detter, the Swedish international law professor concluded as early as summer of 2016 the worst case for the UK would indeed be triggering Article 50.   So Barnier is no magician, he just knew the strings to pull and had the support of the remarkably quiet 20+ EU states. Fundamentally it remains France and Germany that continue to dominate EU matters of state, whilst mostly there is near silence from the rest.

I have reluctantly come to the view that despite not sharing the EU desire to create a federal state – which still looks very far away that the UK is now so run down and defeatist that the giant kick up the *ss needed to reorder both our politics and economic prospects can only be served by staying put. Despite having voted to leave for reasons that are broadly based on the experience of watching over the decades, a raft of legislation, including contentious regulations, decisions and directives and passed down to us from the Commission and enacted by Parliament with so far as I can see astonishingly little real scrutiny. I did vote to join as to stay in in 1975 and to join. The EU if it is to thrive or even survive will need urgent reform and to avoid it being half-baked the UK must play a role – this time preferably with a better bunch of politicians

Article 50- a baked-in recipe for failure.

26 October 2018

JR Max Wheel

When some historian comes to write up the tortured negotiations between the UK and the EU they might like to reflect on the now infamous Article 50. This  was a contentious after-thought to Giscard d’Estaing’s EU “constitution”.  It is a mess almost certainly by design and so it has proved in reality. Since no large member state had ever attempted to leave the Union until now, we were always in uncharted waters and the article’s scant detail totally inadequate for the purposes of reaching a fair agreement, since it gives all the negotiating cards to the remaining member states. Worse its sequencing into a two-phase approach means that many issues which are needed to reach agreement on the withdrawal phase are stupidly left to the definition of the future relationship including trade.

There has been a concerted effort to characterise the talks between both parties as negotiations, when they most clearly are not. EU member states have a rule-book to follow, into which bucket they can put pretty much what they like. Hence “negotiations” are immediately bogged down in endless complexities and little or no progress is possible. For reference this links to the wording: http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf

Leaving aside for a second one’s own prejudices about whether to leave or remain, would anyone have seriously entertained this way of trying to reach any constructive agreement? The answer is likely to be a resounding No! Article 50 is inappropriate, designed only to protect the status quo ante.  It is therefore dysfunctional as a methodology and should have been challenged immediately or never triggered at all. This is not an exercise in flying a kite, Prof, Ingrid Detter de Frankopan, a widely respected international lawyer and Prof. Emeritus at Stockholm University warned back in 2016 that the one critical factor in then forthcoming UK/EU talks was to avoid triggering Article 50. It being so obvious that to do so would merely create a one-sided EU determined process.

This is precisely where we find ourselves in late October 2018, unable to exercise a sensible choice since EU tripwires have been carefully positioned so as to frustrate any progress. Worst of these, but by no means alone is the vexed question of the Irish border. It is fair enough to recognize that most member countries have historical oddities left over from Europe’s turbulent past. Andorra, San Marino, the Grand Duchy of Luxembourg itself, Liechtenstein and a host of others.

Even by EU standards the choice of Ireland is an especially unfortunate (and completely avoidable) one. Not only because of the common travel area between the UK and the Republic, and the major flow of goods between the two countries, but quite obviously because of the potentially fragile Good Friday settlement. There are no good compromises here, only future technological border solutions, mainly way off, but because any sensible negotiations need to be bilaterally determined between the UK and the RoI- not the EU. Hooking themselves to the EU position will not resolve this issue and risks upsetting the delicate balance and trust built up between the communities in the North over the past 20 years as well as violating the sovereign status of the UK. This is massive overreach by the EU and they should drop it before any real damage is done.

I have previously critiqued the 4 freedoms as being aspirational constructs, not fundamentals. Even in a pre-globalized world free trade in goods and services was recognized as an economic benefit. Globalization has supercharged it to the extent that very little is not now tightly integrated. Free movement of capital and people has however become increasingly problematic. At one level technology renders borders as nearly irrelevant, however this is only part of the story, identity, culture and historical context all influence how peoples interact.

Monnet had a profound disillusion with the failure of the inter-war League of Nations and his philosophy was always for European integration and a federal structure, which became enshrined in the EEC and later EU. His was a very different world however and informed by very different experiences.

The current backlash against the inequalities created by the manifest downsides of a globalized world has led to a re-recognition of nationalism. It never really went away, although this is not properly recognized. Now member states are just that, national states. Those so-called freedoms of capital and people allow firms to relocate financial and production resources at will and with little/no consideration for the host country. Freedom of movement for people touted and even enjoyed as a benefit has turned out to be an authentic nightmare. Since a nation state’s first duty is the protection of its citizens neither the precarious nature of migrants, nor the self interest of firms should be allowed to override policy provisions by individual states. To do so is to invite mass uncontrolled movement, exactly what we have been experiencing. The combination of free capital movement and open migration have proved to be double edged swords. The consequences of being economically “left behind” and opening borders to uncontrolled movement are major causes of our decision to leave the EU.

In truth the EU was from inception always a Franco-German project and one where the UK played a reluctant and often marginal role, hence staying in to reform this 1950s project to make it fit for purpose in the 21stC is and remains a fantasy.


A Collaborative Europe?

JR Max Wheel

4 August 2016

Open Europe, the think tank, today floated the EEA route as a potential transitional measure for the UK whilst the country clarifies its post membership aims. This is a position that was proposed by Dr. Richard North (and others) pre-referendum as being a logical route, but it is slow and ponderous and falls far short of the “take back control” leaver stance as:

  • UK contributions will continue
  • Free movement of people will continue
  • EU law making will largely be the same
  • Free trade agreements can be negotiated in principle but EU regulations inhibit necessary flexibility

It has the merits of avoiding a direct clash with the Scots and Northern Irish voters, but as with all transitional arrangements they begin to take hold as a new “status quo” and they most certainly do not reflect the leave vote ambitions.

Article 50 is however so badly drafted as to be a near unworkable part of the Lisbon Treaty, presumably because it was never envisaged that in reality any member state would wish to leave, so it is there almost for completeness sake. It is also extraordinarily one sided, with any negotiation being subject to the Council and Commission acting as judge and jury. No trade or international agreement would put its interlocutor member in the “dock” or make it jump through so many hoops. This much should be made clear in negotiations. The UK has indicated it would not trigger article 50 until 2017, this is a key year with both French and German elections looming and with considerable possibility for upset. Since both the EU Commission and many member states resent the implicit threat to the “European Project” by the UK vote, there is a rawness to the current debate which inhibits proper dialogue. And dialogue is needed if the process is to be both facilitated to the benefit of all parties and to establish the necessary post membership collaboration whether on matters of security, defence, scientific research or similar cross border issues.

The Project itself is threatened by some serious internal disconnections of which the currency is the most serious and the democratic gulf between citizens and the EU governance entities. As Yannis Varoufakis, the former Greek Finance Minister has argued, talking of an EU democratic deficit is comparable to arguing  of an oxygen deficit on the moon- there IS no oxygen on the moon!

This political deficiency is however only part of the problem, the EU has evolved since the 1950s, when many of its ideals and aspirations were relevant e.g., the 4 pillars or freedoms:  without amendment, movement of people and capital especially, now look to be frankly unworkable and not just for the UK.

At the core of the EU is the Franco-German axis. This was always rather cynically designed as a German cart with a French rider. This quid pro quo, rehabilitating the German people following the horrors of war is a power game, where French diplomacy would triumph as the German economy recovered via the economic miracle. Far from being the end of the nation state  subsumed into a more “equable“ supranational body, there have been a series of brutal trade-offs between both parties, made explicit following the reunification of Germany. 1989 should be seen as a seminal year and not only for the EU.

What were the parties’ objectives? There was a trade-off between an enhanced global role for France in exchange for the curtailment of the monetary discipline of the Bundesbank and an increasingly dominant German economy. The genesis of the single currency was a naive ploy to force political union via economic means and in swapping a stable DM for a inadequately structured new single currency and the establishment of a “non-German” dominated Central Bank, the ECB. Like many other “orthodoxies” this hit the buffers with the crash of 2008, but a short backward glance to the behaviour of the Exchange Rate Mechanism in the late 1980s/1990s would have shown how dangerous this experiment is. This error was compounded by the eastward expansion of the EU to include countries who naturally enough wished to share in Europe’s democracy and economic opportunity, but whose level of development was markedly backward thanks to years of Communist or autocratic misrule.

The EU still has not undertaken the proper political calculus as to why Britain voted out, as it is a confused and multifaceted issue. A major albeit not sufficient reason is the stalled economic prospects of the many and the inequalities engendered by policy failure and rapid change. Equally important is the real sense that decisions are taken remotely and without consideration of societal consequences- immigration being the obvious one. Add to that the malign effects of globalization, the rise and rise of a wealthy and disconnected elite which has created a truly toxic brew roundly rejected by a significant part of the electorate. Over focus on Remain/Leave campaigning positions is both misleading: neither side emerges with any credit, that however is to miss the point.

The EU needs an overhaul and a redesign if it is to ever properly engage its citizens and to prosper, the UK needs and wants a collaborative approach to its European neighbours, whichever route offers the greatest real benefit to both-this is the prize and one is not at the expense of the other.