Article 50 is irrelevant to our EU departure

Article 50 neither starts Britain’s withdrawal process from the EU and nor is it particularly important when it is triggered, argues George Bathurst.

In a classic example of the false narratives described by John Redwood a fortnight ago, almost every day the Telegraph reprints falsehoods, claiming that before Article 50 was created there was no legal way to leave the EU. The BBC chimes in saying, “For the UK to leave the EU it has to invoke an agreement called Article 50 of the Lisbon Treaty.” You’ll note, however, that our legacy media organisations don’t cite sources for their supposedly factual articles.  This is because they’ve got it exactly backwards.

Article 50 is in fact what happens after we tell the EU we are leaving.

What starts the process is Britain ‘denouncing’ the EU treaties.  Denounce is an ugly word in modern English but in this context, it simply means to proclaim, with no need to be rude about it, that you no longer agree to the terms of a treaty.  Nations are free to make such a statement at any time. Without this freedom, rulers would bind their successors and make meaningful national democracy impossible.

Britain’s right to leave the EU in this way was confirmed in 1993 when William Rees-Mogg challenged the Maastricht Treaty, claiming it was unconstitutional and made the Queen a subject of the EU.  The High Court rejected the claim but in doing so relied upon the point that the Crown was free to denounce the treaty at any time.

When a country denounces a treaty, however, it is not usually open to it to denounce it in part.  You either reject it or you don’t.  Exactly as M Junker has said, you can’t have an EU a la carte.

To extend Junker’s metaphor then, leaving the EU is like leaving a restaurant.  You inform the waiter of your intention to leave; he brings you a final bill which you pay. And that’s it.  You don’t get into esoteric arguments about having and eating cake or whether you should pay the management’s pensions.

Article 50 then neither starts the withdrawal process nor is it particularly important when it is triggered. What is important is our relationship with the EU after we have left.  Recognising this would have a transformative effect on the discussion – instead of a grumpy divorce argument, it becomes forward-looking and positive.

It would also have a beneficial effect on our own mindset. Many people in UK politics, being too young to remember anything else, have grown up with a captive’s mindset, a sort of Stockholm Syndrome, which is why they seek comfort in the entanglement of regulations like Article 50.  Exercising our unilateral rights makes it easier to think like an independent country again.

Post denouncement, we won’t need the EU’s permission to decide how the EU trades with us.  We could use this unilateral power to erect trade barriers but we could also use it to dismantle them.  We could start by declaring that not only will all EU nationals here legally be able to stay indefinitely but also their countries will pay no tariffs or face any new obstacles for selling goods and services here.  We could also declare – unilaterally – that we will assume unless otherwise informed that our reciprocal rights will be continued.

At a stroke this would resolve much of the ‘uncertainty’ Remainers are complaining about and dash their hopes of making Brexit so complicated it never happens. It preserves the status quo for trade and puts us on the moral high ground.  It effectively dares the likes of M Holland to carry out his threat to ‘punish’ us, which then becomes very unlikely.  As members of the EU our only recourse for such bullying was to seek the EU Commission’s help, which France was often much better at influencing (which is why the EU does not have a free market in services, for example).  Once Holland et al realise that we’ve woken up to the fact that we no longer need the EU’s permission to act, that we are no longer captive and can reciprocate any obstacles that they put up to trade, and that they have more to lose than us, then it all becomes much easier.