Theresa May is facing calls from pro-Leave campaigners to invoke Article 50 now. Lee Jones argues that setting a two-year deadline for exit would put Britain at an enormous disadvantage in the ensuing negotiations. Better to give Britain’s beleaguered political parties time to regroup and start representing their members’ interests – otherwise the exit process risks being commandeered by technocrats in Whitehall.
A majority of voters in the referendum issued a clear instruction: “Leave the EU”. The problem, however, is that “leaving the EU” could mean anything from Little Englander isolationism to “Brexit in name only”, retaining EU regulation, budget contributions and freedom of movement without formal EU membership. There is no clarity on what “leave the EU” actually means because the referendum was a democratic moment, not a democratic movement.
Just as Remainers offered no positive vision of the EU, so Leave campaigners failed to offer a compelling, detailed vision of a post-Brexit Britain, relying instead on fearmongering and dubious spending commitments. They have not emerged as a triumphant, coherent force leading Britain towards a clearly specified destination; instead, they promptly imploded.
This matters because, when Article 50 is invoked, someone must instruct Britain’s negotiators what to actually bargain for. This is how international negotiations work: political leaders instruct technocrats on the broad objectives and “red lines”, then leave them to work out the details. At present, the task of defining Britain’s objectives falls entirely to an unelected prime minister and a handful of Tory ministers.
If Article 50 were to be invoked tomorrow, as some demand, what would their instructions be? Given the lack of any coherent plan among Leavers, one possibility is that we blunder in with poorly defined or impossible objectives, emerging with an extremely poor deal. Otherwise, given the risk aversion and pro-EU sentiment of the British establishment, the default position is likely to be one that safeguards as much of the status quo as possible. It is also likely to be strongly influenced by powerful corporate interests like the financial sector. They understand that everything is potentially up for grabs and have already begun lobbying government to ensure their interests shape Britain’s negotiating strategy. The risk, then, is an outcome of “Brexit in name only” – which is not what a majority of Leave voters wanted.
Some nonetheless suggest that we could mobilise to influence this process once it has begun. This betrays ignorance of the Article 50 process and the realpolitik of international negotiations. Firstly, when Article 50 is invoked, a two-year clock starts ticking down: after that, Britain is out. Britain’s bargaining power will diminish with every day that passes, because of the necessity of reaching a deal before that deadline to avoid the economic chaos that would otherwise result. If the government radically changes its negotiating objectives mid-way through, that halves the time available, vastly reducing Britain’s leverage. Any government would strenuously avoid this, making massive popular mobilisation necessary to force its hand.
Secondly, unless tremendous popular pressure is brought to bear to change the negotiating format, which seems unlikely, the Brexit talks will be virtually impervious to popular control and accountability. Brexit minister David Davis will not sit around a table with his counterparts from the 27 other member-states, each representing their own publics – that is not how EU negotiations work. Instead, British technocrats – their instructions in hand – will negotiate with EU technocrats with their own instructions, in secret, with no democratic oversight. Davis could only be held to account and prevented from “fudging” the outcome if there existed a clearly defined set of objectives against which the public could judge him. Currently, no such objectives exist.
Thirdly, if Article 50 were invoked tomorrow, the EU negotiating team would likely be led by Eurocrats hostile to British interests. The EU itself is in some disarray following the vote, but a spiteful faction of committed federalists – led by Commission President Jean-Claude Juncker, EU parliamentarians like Guy Verhofstadt – is already demanding that Britain be “punished” to deter further defections. The Commission and the Council are currently struggling over who gets to lead the negotiations, with Juncker pre-emptorily appointing Michel Barnier as chief negotiator. But importantly, they are united in demanding that Article 50 be invoked without delay – because this empowers them. This faction wants to shore up the EU project, and it lives and dies by the EU rulebook – which states that Britain must first exit the EU, and only then may negotiate a new trade deal. If this faction dominates proceedings, Britain will find it much harder to get a good deal.
Conversely, by delaying Article 50, May buys time to court the leaders of member states, many of whom are more pragmatic. They recognise their own economic interests are best served by pragmatism and parallel deals, not spite and strict rule adherence. Britain’s best hope for a good deal is that these political leaders are persuaded to instruct the EU negotiating team to follow these national interests, not their own priorities. Inter-state consultations also allow Britain to develop a more realistic approach and find ways to leverage divisions among member-states to its own advantage.
Delaying Article 50 categorically does not mean that citizens should simply get back in their box, and leave matters to the experts. On the contrary, it is essential to harness and expand the democratic moment. The sense of energy and potential generated by the referendum needs to be channelled into developing concrete demands for the Brexit negotiations and insisting that political leaders represent our interests. This is not a step back from a democratic demand, but a step forward to make more, and more concrete, demands.
This is difficult precisely because of what the EU has always represented and entrenched: the longstanding crisis of representative democracy. Ideally, political leaders would now engage the public in concrete discussions of what they want post-Brexit Britain to look like, through grassroots organisations, civic associations, mass meetings and so on. Ideally, parties would turn these demands into concrete platforms and allow the public to vote on them, with a general election determining who leads the Brexit talks and on what terms. This only seems unlikely because representative institutions have crumbled over the last three decades. Parties have detached from their social bases and retreated into the state. Political elites develop policy platforms not by consulting the people they supposedly represent, but through consulting one another, not least through the EU.
This decay is not something easily reversed – but it is essential to try. Citizens should be demanding that parties return to their basic function of representing social groups’ interests. They should also be using every social, political, civic and economic organisation at their disposal to make concrete demands of the government. Universities, hi-tech businesses and the City of London are already doing this – citizens must follow suit.
A good example of a concrete popular demand was the petition demanding that EU nationals in Britain would have their residency rights protected. Despite anti-immigration sentiment, according to opinion polls, 84% of the public back this position, and this has quickly forced the government to include this as a negotiating principle.
This process of organising, formulating demands and insisting that the government represent our interests cannot be avoided if the people are to have any influence over the Brexit negotiations. It would be necessary if Article 50 were invoked tomorrow, or next year, and there is no reason think it would be any easier under either scenario. A short delay in invoking it buys time for the uphill struggle of organising. It prevents the initiative passing immediately to the technocrats on either side, who would likely define objectives conservatively and operate with minimal popular oversight. The only way to hold the British government accountable for the outcome is for the public to do everything it can to shape the UK’s negotiating objectives, then hold their feet firmly to the fire.
This post is based on remarks by Lee Jones at the Invoke Democracy Now meeting in Brixton on 28 June and was first published on The Current Moment. It represents his views and not those of the BrexitVote blog, nor the LSE.
Lee Jones is a Senior Lecturer at the School of Politics and International Relations, Queen Mary University of London.
Like many commentators on Brexit Lee Jones assumes that invoking Article 50 of the Lisbon Treaty is necessary, albeit he argues, best delayed. However he ignores the far greater issue of the legality or otherwise of all the EU treaties, from Rome through Maastricht to Lisbon.
Likewise the author appears to make the same common mistake as expressed by other critics in thinking that the Leave campaign ” failed to offer a compelling, detailed vision of a post-Brexit Britain,”
By way of response it should be noted that it was never the intention or declared purpose of ‘Leave’ to offer such a blueprint as it concentrated solely on the immediate objective of gaining a leave vote in the referendum, and this it successfully achieved. Any such “detailed vision” therefore is recognised as being the responsibility of the new government, not a campaigning group, although some broad principles only were strongly stressed over and over again during the campaign by all the ‘leave’ campaign groups.
These reflected the clear concerns of the electorate and were fourfold, namely return of sovereign powers to the British parliament, control of immigration and security of our borders, freedom from EU law making jurisdiction, and freedom of power to make independent bi-lateral trading arrangements with other countries.
Voters recognised that either one or all of these could only be achieved by a vote to leave the EU, and these were their priorities.
Post Brexit, what about Article 50 of the Lisbon Treaty? It is widely assumed that it is somehow obligatory on a British government to invoke Art. 50 but others strongly repudiate the claim on the grounds that all the treaties culminating in Lisbon were entered into illegally and therefore a British government need only to walk away from them under the terms of the articles of the Vienna Convention on Treaties.. Rodney Atkinson (Freenations website) argues this persuasively as follows:
THE VIENNA CONVENTION ON THE LAW OF TREATIES sets out what a Treaty is, how it can be legally entered into and how a Treaty can be rescinded. The Vienna Treaty notes that:
“the principles of free consent and of good faith and the pacta sunt servanda (agreements must be kept) rule are universally recognized” and
“the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all,
But the self determination of the nations who signed the EU Treaties were in fact thereby removed and decisions were taken by the unelected and imposed behind the backs of national democratic parliaments. There followed the greatest of all “interference in the domestic affairs” of nation states! In the United Kingdom there was no free consent of the British people to the EEC Accession Treaty at the time of the signing. And we know from his later admission that Edward Heath misled the British people about the loss of democratic sovereignty so the British people had no self determination by a vote and they were misled. Parliament as we now know was also misled – by the 30 years suppression of the letter to Heath by the Lord Chancellor Lord Kilmuir who warned against the loss of the “unprecedented” constitutional rights and sovereignty.
The Vienna Convention makes clear (Article 49 Fraud) that a State can invalidate its consent to a Treaty
“If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.” and in Article 50 (Corruption of a representative of a State)
“If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty.”.
On these grounds therefore there is no obligation on government to invoke Art.50 of Lisbon at all, but on the contrary all the EU treaties should be rescinded under the clear terms of the Vienna Convention.
Following this there is every reason to open negotiations with the EU as an equal partner to discuss trading terms for the future, and also quickly engage likewise with the many non EU states which have already formally indicated that they wish to open up similar discussions on a bi-lateral basis,
Historically we are all aware of mistakes made by political predecessors, we need to deal with “Here and now”. Whatever your viewpoint you have not been given the full story by anyone in order to form a rational judgement .The country is currently in limbo. Decisions will be made legal minds than ours for the electorate as usual our politicians which we will have to live with them, just the same as when the decision was taken to join, as for the legality of both entry and exit, it will take greater legal minds than ours.
Congratulations Graham on being the first person to admit the ill conceived idea did not consider planning post Brexit. Did you seriously expect the Prime Minister to continue taking party in something he was set against?. I do not subscribe to your legality theory however, because if the electorate were misled in joining the EU, then they were equally misled in the leaving of it.
The sad part of this experiment to see if an electorate could be hoodwinked into taking part in a power exercise with only an exit of the EU as the objective is both a poor state of politics on the one hand, and the gullibility of the public on the other.t it was, has now backfired spectacularly, .putting many people’s jobs at risk! I sincerely hope yours is not one of them.
This was an elucidating but rather pointless response to a good article which calls for the British public to engage in our future relationships across Europe and the world. I am sure there are legal arguments on either side for every course of action, past and present but the political fall out from declaring that we were null and void as EU members right from the start is simply a waste of good thinking time. It would only seek to aggravate an already bruised European Union and confuse and irate the British public even further. I would hope that the public will be more concerned with building Britain as an open, tolerant, co-operative society that does not dwell upon the past and the “wrongs” that you suggest have been done to it.
Madden August 8, 2016 at 2:36 pm – Reply
My apologies! this was posted on another site jn error
Thank goodness for the voice of reason! This was probably the most ill conceived idea of all time.
This country has never had control over it’s own affairs because it has always been in debt to the IMF or it’s predecessor. Whatever decision is made, if it is not popular with the people who loan the money they will simply downgrade the credit rating as already taken place with “Brexit” because they see the country as a bad financial risk. Since the vote was taken the value of Sterling has dropped app 10%, meaning in effect we are paying more for what we buy from Europe at the same time giving the very people we profess to hate a 10% discount on the goods purchased from the UK. That makes real common sense does it not?.
Teresa May had the right idea, putting the ones who had not gone on to pastures new, responsible for this debacle in charge of negotiating a way out. It is clear the actual planners, if you can call it that, because there evidently was no plan, are nowhere to be seen having got out whilst the going was good. The truth being” Leave” never envisaged winning nor did”Remain” think of losing. The result now is a devalued currency, a feeling of discontent between friends and families alike not seen since the problem of West Indians being accused of taking everyone’s jobs in the fifties. Congratulations Brexiteers on a fine job of achieving nothing positive whilst at the same time achieving what our enemies have failed to do for centuries, namely:split the country from top to bottom..
Just to set the record straight I did not vote, being in Europe at that time.
An interesting article from remoaner Lee Jones who is still trying to wear us all down with doom and gloom and heel dragging after the event. But what a stunning reply from Graham Wood.
As someone who voted for the EEC in 1975 only to discover later that I had been hoodwinked into voting for a political union, 90 odd glorious buildings in Brussels and some 47000 free loaders I voted this time to leave.
Why so many are still under the illusion that voting for a bloated, corrupt and undemocratic group of people in Brussels (or sometimes Strasbourg) who set their own salaries and have decided to pay a lower rate of income tax (is that even legal) is still a good idea is beyond me.
If Graham Wood’s suggestion of declaring all EU treaties illegal and walking away to start again is too much for the Government to bear I would ask David Davis to consider the following path.
1 Trigger article 50.
2 Declare that the Government is going to adopt the 4 key points for Brexit outlined by Graham Wood.
3 Tell the EU to make their best offer bearing in mind number 2.
4 Publish all negotiations on social media as it happens.
If negotiations are open and honest many of the 17million people who voted Leave will vote Tory in the next General Election.
This highlights the flaw of the referendum. A vote for remain was essentially business as usual. A vote for out was buying a pig in a poke. There was no certainty on what sort of a pig it might actually turn out to be or for that matter there may not be any consensus on just what sort of a pig was hoped for. The problem with informal engagement in public discussion is how is the outcome measured and how are contradictions resolved or will it end up with an unattainable pick-and-mix of public desire. As all negotiations involve giving and gaining it’s also important to understand what the public’s view of what they want AND what are they prepared to give to get it. And how do we assess the public’s satisfaction with the final outcome of negotiations? A general election or another referendum? And what happens if the public don’t like the final package? Will it be like the English Civil War, the winners were united in wanting to be rid of the king but deeply divided on what happens when they succeeded.
Congratulations Graham on being the first person to admit the ill conceived idea did not consider planning post Brexit. Does one seriously expect the Prime Minister to continue taking party in something he was set against?. If the electorate were misled in joining the EU, then it follows that they were equally misled in the leaving of it!.
If I understand yor comments correctly this was no more than an experiment to see if an electorate could be persuaded into taking part in a power exercise with only an exit of the EU as the objective! This surely serves as an example of a poor state of politics on the one hand, and the gullibility of the public on the other.The experiment, if that is truly what it was has now backfired spectacularly, .putting many people’s jobs at risk! I sincerely hope yours is not one of them
A word of defence for Guy Verhofstadt of Belgium. In the European Parliament on 28 June he spoke sympathetically for Britain. He said he disagreed with the result, and said,
“What makes it so hard for me – and I think also for the other group leaders and for everybody here in this House – is the way it succeeded. The absolutely negative campaign…”
I want to meet Mr Verhofstadt and shake his hand for saying that. He then went on to say that the remaining 27 countries cannot be expected to wait around for a “disorientated Tory party to get its act together” and that seemed reasonable to me.
Here is the link to the speech in full and there is a video of him saying that, too.
Brexit is straightforward:
1. Obtain memoranda of understanding from UK’s principle WTO partners on all the minor treaties between them and the EU so that the UK can continue to trade. Perhaps lay groundwork for FTAs.
2. Decide whether to have an EEA style of agreement with the EU (“Access to Single Market”) or WTO style agreement with EU or non-EEA membership of EFTA.
3. Issue notice to leave under article 50
4. If WTO relationship with EU negotiate industry specific trade agreements with perhaps a larger FTA in the pipeline for 5 yrs time. If EEA agreement exit with a few tidying up negotiations.
The WTO or EFTA options are best – the Single Market is hugely disadvantageous to the UK with Secondary and Primary income deficits out of control and a serious UK-EU trade deficit.
What UK? Scotland and Ireland prefer to remain. What about the dishonour of breaking the United Kingdom, forcing Scotland to leave the Union against their wishes? What about the dishonour of putting an EU border between Northern Ireland and Eire, which everyone in Ireland does not want? What about the dishonour of turning our back on all our European neighbours? What about giving nearly half of the ciizens of England and Wales a very serious grievance?
Goodwill is everything in today’s world. The idea of England and Wales alienating their neighbours and then expecting to be treated better than we were before, is absurd, it seems to me.
What about directorships? Article 48 of the Treaty of Rome allows a citizen of one EU member country to be a director of a company in another member country. This could go both ways, so a Dutch citizen could be a director of a company based in England or Wales. If the Treaty of Rome is to no longer apply, what will happen to the directorships?
I think the understanding of trade surplus/deficit above may be faulty. If you like statistics then this page is interesting:
To my mind, another way to look at this is to say that I have bought plenty of goods from Tesco but they have yet to buy any computer repairs from me. Therefore I have a 100% trade deficit with Tesco. So should I declare that Tesco is bad and never ever buy anything in a Tesco shop ever again? Who would that be good for? Would it be helpful to me?
Pardon me for going on, but…
Yesterday I saw someone who said he voted ‘remain’ but said he was unsure about ‘these people who aren’t elected’. It was up to yours truly to have to explain that we elect MEPs, then MEPs vote for the President of the European Commission. The President appoints 28 Commissioners, one from each country, who represent the EU as a whole and not individual countries. The European Parliament approves these appointments.
For example, Jean-Claude Juncker was elected President of the European Commission on 15 July 2014 by 422 votes out of 729.
Geoffrey Howe MP said in his resignation speech on 1 Nov 1990, “…it is crucially important that we should conduct those arguments upon the basis of a clear understanding of the true relationship between this country, the Community and our Community partners.”
Is it fair to say that a vast number of those who voted in the referendum, whichever way they voted, seem to be immensely confused about the nature of the EU and the relationship we have with it and how it fits in to our own system? If it is fair to say that, then is this a sound basis for the formulation of foreign policy? Of course the Government can only govern with the consent of the governed. But first the governed must be properly informed and that seems to me to be a fault here.
Oops, forgot to write “advisory referendum”. As is well known by now, it was advisory not binding so the debate goes on.
Correction to my post above. The leaders of the countries (called the Council of Ministers, or just the Council) nominate one person to be President of the European Commission. MEPs approve this appointment. The leaders of the countries put forward one chief Commissioner each.They are given policy areas by the President of the Commission; MEPs approve all this.
The European Commission can not actually do anything. “The Commission proposes, [European] Parliament disposes”. MEPs can and do reject ideas from the Commission, and can take ideas back to the Commission. If you wanted a directly elected Commission then you would be asking for a federal United States of Europe which George Baird probably wouldn’t want.
I am sorry George Baird has such a negative view. I have taken some time to study how the EU works and it seems to me quite reasonable to me. My experience is, the more you learn about it, the more you want to support it. Please may I point out, John Major signed the Treaty on European Union (aka Maastricht). Major was replaced by Tony Blair who won a landslide in the general election of 1997 on a platform of remain.