Article 50 is a trap… democracy needs open political negotiations

21 Jul

In the immediate aftermath of the EU referendum, there was a vocal anti-democratic backlash, with stunned Remainers openly discussing how to overturn the referendum and thwart the majority’s will. We insisted then on TCM that popular sovereignty must be respected and, to prevent any elite backsliding, recommended invoking Article 50 promptly. A campaign has also emerged demanding ‘Invoke Article 50 Now!’.

But as the dust settles, a different picture is emerging. In current circumstances calling for the immediate triggering of Article 50 is a mistake. It ignores the origins and purposes of this legal instrument and it risks undermining representative democracy in favour of a dangerous combination of populism and technocracy.

It is true that some academic Remainers are still scheming to frustrate the result, and lawyers are taking the government to court in an effort to create new political obstacles to triggering Article 50. The Scottish National Party is also still threatening to ‘veto’ Brexit.  However, most British politicians appear to realise that ignoring the referendum is not an option. We now have a prime minister who pledges that ‘Brexit means Brexit’, and a Eurosceptic team of ministers overseeing the Brexit process. Invoking Article 50 is being delayed not to resist Brexit, but to buy time to formulate a negotiating strategy, including one that appeases the Scots. The looming question is not whether Brexit means Brexit, but what Brexit actually means: what sort of settlement will the UK pursue and get?  Invoking Article 50 quickly can only reduce the influence of the British electorate over the answer to that question.

Article 50 of the EU’s treaties was not written with the interests of an exiting member state in mind. Quite the contrary. The authors of the Lisbon Treaty, including the die-hard British federalist, Andrew Duff (ex-Liberal Democrat MEP), were very clear that the article would make exit as difficult and as unpleasant as possible for any member state who – god forbid – should exercise its democratic right to leave the EU. It is no wonder that those calling for the triggering of article 50 as soon as possible often find themselves in bed with the likes of Martin Schultz, President of the European Parliament, and Jean-Claude Juncker, President of the European Commission.

The effect of triggering article 50 is very clear. Negotiations are taken away from the open space of national and European political debate, which is where Brexit and the future of the UK/EU relationship currently sits, and relocated behind the firmly closed doors of the European Council and the European Commission. On the EU side, Donald Tusk (President of the European Council) and Frans Timmermans (Vice-President of the European Commission) are the two likely figures who will head up the negotiations for the EU. On the UK side, a team of ‘Brexperts’ will be put together under the steer of someone like David Davis. The result will be much like David Cameron’s negotiations with the European Council and the European Commission at the end of last year: entirely secret, with the renegotiation package finally pulled out of the hat and presented as a fait accompli to a rightly sceptical British public.

Without any doubt, article 50 transforms negotiations between elected representatives, that are ad hoc and outside of the EU’s legal framework, into a series of private discussions between nominated experts on the specific terms of the UK’s relationship with the EU as a  future non-member state. This is not a coincidence, this was the intention of the article and this is how the EU has always functioned.

The UK government would be wrong to use the uncertainty of being outside of the article 50 framework to ride back on the result of the referendum and any sign of it doing so should be very firmly resisted.

But it is equally wrong to seek to push the UK government into the legal and technocratic straightjacket of article 50. Defending representative democracy means holding our current representatives to account and demanding that we as citizens can follow as closely as possible the discussions being currently held between May, Merkel, Hollande and others. This should not only be the right of UK citizens but of all the citizens of the other 27 EU member states. These are discussions about the UK’s new relationship with the EU, conducted by elected politicians accountable to their domestic publics. Until there is a clear sense of what both sides want as a post-Brexit deal for the EU and the rest of the EU, negotiations should remain like this: as open and directly political as possible.

Calling to trigger article 50 now is to squeeze out representative democracy. What is left is a populist celebration of the ‘people’ that calls for the beginning of a technocratic negotiation process that transforms politics into legal wrangling in the long standing tradition of the EU.

Chris Bickerton

Lee Jones

Peter Ramsay

14 Responses to “Article 50 is a trap… democracy needs open political negotiations”

  1. greygossling (@greygossling) July 21, 2016 at 1:40 pm #

    Presumably TCM believes democracy is one person, one vote, one time? Better to put the final deal to another referendum.

  2. Rosie Cuckston July 21, 2016 at 9:04 pm #

    Is it not particularly difficult to hold our current representatives to account when they are not particularly open about negotiations they have already started having? And when there are really no competing visions of Brexit being put forward by them for us to discuss, challenge, shape or support.

    Invoke Article 50 Now is a campaign which draws attention to the need to keep the politicians focused on Brexit. It is in no way an excuse for them to vanish into secretive dealings even if ultimately that will be unavoidable when they do invoke Article 50. As far as I can see Invoke Article 50 Now is a way to start broad public discussions on post Brexit Britain, a general campaign of a kind that I cannot see coming from anywhere else in the demos, although I have seen one narrow, cultural sector based discussion event taking place in Birmingham. But if there are alternatives, I would like to know about them.

    • Lee Jones July 23, 2016 at 8:12 am #

      Not quite. Invoke Democracy Now is a place where conversations can be had about what a post-Brexit Britain should be. Invoke Article 50 Now is a narrower campaign with a very simple demand. That demand will lead to the *immediate* enclosure of Brexit into the secret, technocratic negotiation process described above. The possibility of the public influencing the outcome – already slim due to the attenuation of representative democracy – will be nullified entirely. A better demand would be to insist that IDN-style discussions are held in every constituency with political parties forced to develop concrete proposals for Brexit, and then trigger Art. 50.

  3. Andrew Lamanche July 21, 2016 at 10:15 pm #

    I’m afraid I am not agreeing with you, and there will be others who will also sense in your response a “clever man”, who is using his brain to manipulate the rules of the game. “Brexit means Brexit” – so cunningly used by our new PM – is a slogan open to interpretation, and therefore we are seeing a legal challenge which, curiously and contrary to what we were given to understand by Cameron’s giving us the referendum, the government is reserving for itself to interpret; this was never on the ballot paper, you will admit! This is one of the reasons why those who voted “leave” are suspicious of the motives of the government. I do not share your optimism that the government is committed to the result of the EU referendum, as you so blithely stated in your blog post. You say: “But as the dust settles, a different picture is emerging. In current circumstances calling for the immediate triggering of Article 50 is a mistake. It ignores the origins and purposes of this legal instrument and it risks undermining representative democracy in favour of a dangerous combination of populism and technocracy.” I do not understand what you mean by “a different picture is emerging”. Again, I see in your words an attempt to manipulate reality to your advantage: this is dishonest. The picture has always been known by dint of its being enshrined in the Lisbon Treaty. There’s no different picture, and certainly, you will admit, no caution of a different picture had been given; the democratic process has taken place, and the question was answered. You seem to be talking of yet another way of grading democracy. With so many voices, powerful voices, calling for a reinterpretation of the democratic referendum, I’d be disappointed – and certainly very suspicious – of your dubious arguments related to the interpretation of the democratic process in delaying the invocation of article 50. Neither do I accept your argument that “It ignores the origins and purposes of this legal instrument and it risks undermining representative democracy”. I feel you are twisting the truth for your own purposes here. “The origins and Purpose of this legal instrument”? One immediately becomes aware of the words “legal instrument’, and one cannot but think: here we go, legalism and obfuscation. What might you mean? both were made clear and are clear. so what are you saying here? The instrument of the article 50 is clear, and its invoking now does not undermine not does it endanger democracy. It requires a resolute action but it doesn’t endanger representative democracy nor does it change anything. Why do you think you are a competent interpreter of the purpose of article 50 whilst it is branded widely that its interpretation is somewhat vague. The article 50 triggers the beginning of the process of negotiations. Nor is it naive to think that two years is somehow not enough to achieve what is necessary to be accomplished; the two years is not an end point of time, it is a point by which the most essential issues of our disengagement with the EU should have been sorted out. But it doesn’t mean that all aspects of our dealing with the EU countries must be completely solved by the two years’ mark; this would be ludicrous. The government, and its so-called clever experts have to get on with it, and it is scandalous that they should have not yet thought about their strategy before the referendum itself. But what is important to us who voted to leave is that it (Article 50) should be invoked so that we can trust its meaning and trust that our will is being carried out. Please do not add to the voices that wish to invalidate or delay in perpetuity Britain’s departure from the EU. I’ve followed your blogs with interest and gratitude for its enlightening content but please do not now join those who are trying to use their considerable intellectual power to interpret cleverly what this invocation might or might not mean, and do not link your opinions on the invocation to the subject of democracy. The democratic act in the form of the referendum we’ve had is in no doubt and it means that we want to leave the EU immediately. The argument of the timing of the invocation of the said article has not got anything to do with democracy, and I’m worried that you, of all people, should be using the rhetoric of doubt. The vulnerable and yet so well guided by their intellectual and/or intuitive understanding of the question put to them by the referendum, must not be thwarted and/or reinterpreted by those of us who have a considerable ability of the intellect to twist things. I hope that you are not moving toward the position of those who are trying to do exactly that: cleverly call into question the meaning of words and terms. Again, I’m disturbed by your use of the word “populous/populism” above, which implies to me that you have a certain contempt for an ordinary person in the street, or are calling into question their ability to think, judge and make informed decisions. I’d like to put to you that such an ordinary person in the street may also comprise many an academically trained individuals, and even though they might not be so academically trained, your use of the term “populous”, smacks of a degree of a latent contempt, and betrays your earlier motives of being ever so happy of all those “populous” votes coming your way. So please do not patronise, and certainly please do not give ammunition to those who would happily wind back the clock to the pre-referendum times. I also worry that you feel that those who wish to invoke article 50 now – something which I think must happen immediately not least in order to reassure those upon whose vote you yourself have relied – somehow undermines/diminishes the representative democracy. Excuse me! But the same representative democracy was not undermined by those who voted “leave” – and I gather you were quite happy for them to do so as you yourself wished to vote “leave”? You can’t have it both ways, and those “populous” voices actually either understand clearly or intuitively that you and other clever ones tend historically to play with them and their votes: there are times when you want them, and there are other times when you tell them how they should behave. Your post clearly has a didactic tone to it. I object to such an belittling of the electorate and/or fellow voters. You will have been aware of the legal challenges of the result of the EU referendum, and of the many powerful individuals, organisations, and lobbies that are investing a lot of money to overturn the will of the people. I’m not sure what makes you optimistic that either the government or the Remainers are going to accept let alone make real the will of the majority in the democracy and through the democratic process that we have just witnessed. I am exceedingly worried by your Use of “populous” qualifier, and your sudden implicit juxtaposition of direct democracy while concerned for the health of the representative democracy. I think in this instance, the direct democracy as expressed by the referendum has an absolute priority and thereby calls for an obligation to carry out the will of the people to invoke article 50 and, consequently, – you clever people – get your hands dirty to deliver. As I read many a post in the various sources available to me, I see that the ordinary voters continue to trust – albeit with a significant margin of reservation and considerable doubt – that those who represent them will act according to their will without a deliberate and legalistic attempt to thwart or deceive them; I feel your post doesn’t reassure any of those individuals who having been ignored for so long finally hope for the country to leave the anti-democratic union and become accountable to its citizens again. > On 21 Jul 2016, at 14:31, thecurrentmoment wrote: > >

  4. Jo July 22, 2016 at 7:53 am #

    Concerning Brexit, representative and direct democracy were at conflict all the time.
    Negotiations cannot be “taken away from the open space of national and European political debate”; they are not located in that space. It seems the Brexit vote has caused wishful thinking and interpretations to take over. Britain has voted for Brexit, and Brexit is article 50. It was a vote against representative democracy, not for it. Article-50 negotiations may be representative, but less democratic, while the Brexit would may be democratic, but hardly in the tradition of representative democracy – rather, exactly in the tradition of “populist celebrations”.

    • Lee Jones July 23, 2016 at 8:18 am #

      “Britain has voted for Brexit, and Brexit is article 50”.

      Having voted to leave the EU there is no good reason why Britain should consider itself hamstrung by EU rules drafted to prevent countries leaving. Eventually, Art. 50 has to be invoked, sure. But we are arguing for two things: 1) delaying its invocation creates more political space for the public to influence Brexit, before discussions are enclosed in secret, technocratic negotiations; 2) it also creates political space for the UK government to bend the rules to our advantage — e.g. Art 50 insists that we must first negotiate exit, and only after we have left can we negotiate a new trading arrangement with the EU. This would be bad for the UK economy and the British people — and plenty of other Europeans as well. Hence, some EU governments are willing to have parallel talks on post-Brexit arrangements. That is what the UK wants, and what we ought to get. But that only happens if we insist on British politicians representing our interests, regardless of the technical rules.

      • Jo July 23, 2016 at 5:01 pm #

        “Having voted to leave the EU there is no good reason why Britain should consider itself hamstrung by EU rules drafted to prevent countries leaving.”

        As far as I know, Britain has agreed to these rules. When you accept a mobile-phone contract that binds you for two years, you also cannot get out earlier.

        “Eventually, Art. 50 has to be invoked, sure. But we are arguing for two things: 1) delaying its invocation creates more political space for the public to influence Brexit, before discussions are enclosed in secret, technocratic negotiations; 2) it also creates political space for the UK government to bend the rules to our advantage — e.g. Art 50 insists that we must first negotiate exit, and only after we have left can we negotiate a new trading arrangement with the EU. This would be bad for the UK economy and the British people — and plenty of other Europeans as well. Hence, some EU governments are willing to have parallel talks on post-Brexit arrangements. That is what the UK wants, and what we ought to get.”

        All that you describe here is a process that would present something to the people that they have not voted for (whether you yourself define it as better or worse does not matter in that respect), and it implies officially declaring Brexit after a long while after which it’s not even clear anymore that the majority supports Brexit.

        “But that only happens if we insist on British politicians representing our interests, regardless of the technical rules.”

        Which is basically what Britain did already inside the EU, by demanding single-country exceptions etc, so nothing new here.

  5. Andrew Duff July 22, 2016 at 4:15 pm #

    A bizarre intervention, this. Of course Article 50 was devised to limit the collateral damage to the remaining EU of secession by any member state. It was drafted to expedite secession in an orderly and legitimate fashion by the EU institutions which are in my opinion – contrary to that of the authors – democratic and transparent. The withdrawal agreement is conducted under the normal procedures for negotiating the EU’s international treaties, including full reporting by the Council and the Commission to the European Parliament. The European Parliament has to vote to approve or reject the final agreement. And the UK parliament will also vote on the final deal. Nothing will be done or can be done, as the authors allege, ‘in secret’.

    The separate, but parallel negotiations on the new relationship post-Brexit will be conducted after the Commons has agreed on a proposal of the UK government and will also be subject to Westminster sanction – plus ratification by all 27 of Britain’s erstwhile EU partners.

    The kind of suspicions and prejudices about the EU betrayed in this piece is all too typical of the eurosceptic paranoia that has led the UK into such a disaster in the first place. I am sorry to see it.

    • Lee Jones July 23, 2016 at 8:20 am #

      “The European Parliament has to vote to approve or reject the final agreement. And the UK parliament will also vote on the final deal. Nothing will be done or can be done, as the authors allege, ‘in secret’.”

      You apparently concede, then, that the negotiations will in fact be conducted in secret, and then presented to the European and UK parliaments as a fait accompli, for a straight up or down vote. That is precisely what we are arguing, and what we are leery of.

    • James Aber July 23, 2016 at 9:49 am #

      Is it true you have to be paranoid to think the EU isn’t very transparent or democratic?

      Does it make you mentally ill if you criticise the EU?

      I’d better make another appointment with my GP…

      And all those 17 million Leave voters. And NHS mental health services are already so over-stretched as it is…

  6. Luke Gittos July 22, 2016 at 4:58 pm #

    I think this post confuses democracy with transparency. As I understand, Brexpert negotiators will effectively act as civil servants and will be answerable to David Davis, an elected MP. He is responsible for the negotiations. I don’t love the guy but he has a mandate to negotiate on our behalf following the last general election. The electorate will hold him to account for the eventual deal. We’ve had a moment of direct democracy that gave a mandate to leave. Representative democracy provides a mandate to negotiate. I don’t see how we can get any clearer idea of what the public want from Brexit (I myself think it’s relatively clear already) other than a general election now. If you want a GE now then great, let’s have one. But in the absence of a GE it’s not clear why holding up invoking Article 50 stands to make the Brexit process any more democratic. Of course, there are significant advantages to the negotiation process taking place in private as long as a minister retains responsibility for the eventual deal, which in this case he does. Plus, the logical conclusion of your article is a second referendum or parliamentary vote on any deal with Brussels which is of course being argued for as a way to prevent Brexit from ever happening. I also think you massively underestimate the potential for Brexit never to happen. Look at the political betting odds!

    • Lee Jones July 23, 2016 at 8:26 am #

      “The electorate will hold him to account for the eventual deal.”

      Following your approach, the only opportunity they would have to do this is by voting against the Conservatives in 2020, by which time Brexit will have happened already. What you’re arguing for, in effect, is for the electorate to go back into its box until the elite deems it necessary to consult them again in a few years.

      “I don’t see how we can get any clearer idea of what the public want from Brexit (I myself think it’s relatively clear already) other than a general election now.”

      I don’t think it is clear – precisely because a straight in/out referendum is incapable of deciding the details of out. The attenuation of the institutions of representative democracy do make it difficult for the people to be consulted. But ideally I would suggest that all MPs should be holding large public meetings in their constituencies to discuss what people want from Brexit, then the parties should formulate Brexit proposals as part of election manifestoes, and then people should be asked to vote on them. That is a far more democratic demand than “invoke Art 50 now”. And shaping the terms in this way ensures that there can be no backsliding – the vote would be on “what kind of Brexit?” rather than “Brexit or not?” This offers the opportunity for people to move on from the vote, get past the Remainer/Leaver dichotomy, and come together to collectively determine the country’s future.

Trackbacks/Pingbacks

  1. More on Why Invoking Article 50 Now is a Mistake | thecurrentmoment - July 30, 2016

    […] is a follow-up to our earlier post, where we argued that invoking Article 50 now, as  are demanding, is a […]

  2. Invoke Article 50 Now: Depoliticising Brexit | thecurrentmoment - September 1, 2016

    […] TCM, we have supported leaving the EU but some of us have also rejected the insistence on immediately invoking Article 50. This has drawn criticism from some Leave supporters, including […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: