Article 50 Illegality a Sideshow


Having entered the transition stage of the Article 50 process Boris Johnson will now negotiate Britain’s future relationship with the EU. This stage will come to an end on the 31st December this year at which point the UK will officially leave the EU and its regulations. It is Boris Johnson’s aim to have secured a trade deal with the EU by that point. However, in a letter to EU chiefs from former diplomat Sir Peter Marshall, he claims that the Brexit talks could be undone by the political declaration and withdrawal agreement both being deemed ‘fraudulent’.

Writing the letter to Ursula von der Leyen, Charles Michael and David Sassoli, Sir Peter claims that the Article 50 process as it has been followed would be deemed illegal if it came before the European Court of Justice. The problem is that, once Article 50 is activated, as set out in the provisions of the treaty, it states “the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship”.

In contrast, as set out in the guidelines of withdrawal adopted by the European Council, “other issues still require agreement and negotiations can only progress as long as all commitments are undertaken so far are respected in full” which Sir Peter argues is in “flagrant contravention of the provisions of Article 50.”

Sir Peter also argues that the EU has breached the principle that ‘nothing is agreed until everything is agreed’ by moving forward with negotiations.

So by putting the guidelines for negotiations ahead of the requirements of Article 50 Sir Peter argues that the EU is in breach of its own rules. Overall by moving on to trade negotiations Sir Peter claims the EU has overridden the provisions of Article 50.

Article 50(2) instructs the Union to ‘negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.’

“The guidelines, in contrast, insisted on the ‘phasing’ of the negotiations: they declined to ‘take account of the framework for the future relationship’ until the withdrawal arrangements, including the ‘divorce bill’, had been all but settled.”

It is highly likely, however, that the European Court would find that the provisions of Article 50 had been satisfied by the process that has been undertaken and that nothing should be done to interfere with it.

This leaves us with the position moving forward. The EU is likely to play hardball with issues like fisheries and the level playing field. It would seem a near perfect moment to reclaim the rich waters that make up the UK fisheries for the UK industry. It is likely, however, that the EU will wish to retain the right to fish in UK waters, and will make any trade deal dependent on it. This is an area that Boris Johnson should stand up to the EU on as our fishing industry is worth getting behind.

Similarly the EU is likely to make a level playing field a red line in negotiations. They are afraid of the UK becoming Singapore on the Thames and gaining massive competitive advantages over the EU. The EU will want Britain to follow rules on workers rights, the environment and tax harmonisation in order to maintain a level playing field. It is essential from a point of view of sovereignty that Britain is not kept in thrall to EU rules. This is likely to prove a tough negotiating point during the negotiations.

It will be a great test of Boris Johnson’s premiership to see what sort of deal he is able to negotiate. Clearly a deal that ensures the maximum amount of frictionless trade will be a good thing but he must be careful not to give up too much in the pursuit of free trade. It is a tricky path to steer between the two requirements but Boris seems capable of achieving it. Next stop the sunlit uplands…