On March 16th, 2017, the European Union Notification of Withdrawal Act (Article 50) was granted the Royal assent after clearing both Parliament and the House of Lords. Immediately following its ratification, interest in the design of the article began to fade. Public concern was instead focused on commencing negotiations with the EU on a deal over Brexit.
Seven months on, and with talks said to be at an impasse, I believe that now is a good time to revisit Article 50, most notably by examining the origins behind its inception and the figurehead responsible for its inclusion in the Lisbon Treaty.
The person behind Article 50 is a man called John Kerr (or The Lord Kerr of Kinlochard). Kerr is a former diplomat who has worked under former Prime Minister John Major as both the British representative to the European Union and British Ambassador to the United States. He has also worked behind the scenes of government as Principal Private Secretary to the Chancellor of the Exchequer.
Today, Kerr holds a plethora of roles in various different institutions. As well as being a cross bench member of the House of Lords, he is also on the Executive Committee of the Trilateral Commission and the current Chair of the Centre for European Reform. The Trilateral Commission was founded in 1973, ‘at a time of considerable friction among governments‘, by David Rockefeller and Zbigniew Brzezinski. Rockefeller used to be chairman of the Chase National Bank in New York (now known as JPMorgan Chase), whilst Brzezinski was National Security Advisor to President Jimmy Carter from 1977 to 1981. According to their website, the original intention of the Commission was to,
foster closer cooperation among these core industrialized areas of the world (Japan, Europe (EU countries) and America) with shared leadership responsibilities in the wider international system.
They openly support what they proclaim as a ‘rules-based international system‘, which fits with the core identity of the Commission as being a sponsor of globalisation. The institution describe themselves as offering,
a global platform for open dialogue, reaching out to those with different views and engaging with decision makers from around the world with the aim of finding solutions to the great geopolitical, economic and social challenges of our time.
As with other international organisations, the Trilateral Commission is dominated by numerous figures from the world of finance and politics. To become a member of the Commission, however, one must be personally invited by the Executive Committee.
Kerr’s role as Chairman of the Centre for European Reform (CER) is equally as interesting. A pro-European think tank, the centre proclaims itself as a not-for-profit organisation and completely unaffiliated with any ‘government, political party or European institution‘. The centre’s work is funded by corporations from the private sector including Goldman Sachs, JP Morgan, Barclays, and HSBC, a majority of which are represented at either The Royal Institute of International Affairs (Chatham House) or the Council on Foreign Relations in the U.S. Many are members of both institutions.
The CER’s advisory board, which includes Kerr, also contains representatives from the Trilateral Commission and the European Council on Foreign Relations. Their mission statement and about pages speak of achieving an,
open, outward-looking, influential and prosperous European Union; and a mutually beneficial relationship between the EU and the UK. We also think that the EU should take on more responsibilities globally, on issues ranging from climate change to security.
The success of the Brexit vote in 2016 makes, according to the centre itself,
the CER’s work more relevant and necessary than ever. The CER favours as close as possible an economic and political relationship between the UK and the EU, while respecting the result of the referendum.
To summarise, Lord Kerr holds prominent positions inside two organisations that are weighted heavily in favour of both globalisation and internationalism, to a world that is collectivised and striving for uniformity. The result of the EU referendum in the UK, therefore, appears to run entirely contradictory to the overall objectives of both the Trilateral Commission and the Centre for European Reform.
To trace the origins of Article 50, you have to go back to around 2002 – 2003. This was when Lord Kerr first produced the initial text in the role of Secretary General of the European Convention. The same convention that was tasked with writing a new constitutional treaty. In 2005, referendums in France and the Netherlands rejected changes to the treaties. And because of rules of unanimity, it put any hopes of ratifying a deal on hold. This subsequently paved the way for the EU to begin negotiations with member states on a new treaty to replace the now discarded constitutional amendments. Alas, The Lisbon Treaty was born. The Irish electorate had rejected the treaty in a referendum held in 2008, but were asked the question again in 2009 to which they responded in the affirmative. As a consequence, The Lisbon Treaty was officially implemented in December 2009, a year after the outbreak of what has become known as the ‘Great Financial Crisis‘.
Whereas many alterations were made to the treaty following its original rejection in 2005, one aspect to it remained unchanged – Article 50. No objections, modifications or revisions were made to the original text. What Kerr penned several years prior was carried forward in its entirety. This is confirmed on page three of a briefing paper published by the European Research Service in February 2016, three months before the EU referendum. The paper – ‘Article 50 TEU: Withdrawal of a Member State from the EU‘ – also laid out further guidelines and facts relating to Article 50. Of note, these include:
- The right of a member state to withdraw from the European Union was introduced for the first time with the Lisbon Treaty.
- Article 50 TEU does not set down any substantive conditions for a member state to be able to exercise its right to withdraw, rather it includes only procedural requirements.
Discussing the ‘genesis and rationale of the withdrawal clause‘, the paper reveals some subtext to the thinking behind the creation of Article 50. We learn that ‘several constitutional courts saw a unilateral right to withdraw from the EU as necessary in order to preserve national sovereignty.’ However, scholars opposed to the idea of an official exit route from the union raised the argument that following the inception of the Maastricht Treaty in 1993, this in turn created a ‘permanent organisation‘ which was ‘understood by many to exclude the possibility of voluntary withdrawal from the treaties.’ Expanding on this the paper reads:
- The federal features of the EU and the materially constitutional content of the EU Treaties also tend to discount the possibility of a state terminating its EU membership.
- The inclusion of a right to withdraw from the Union in the Draft Constitutional Treaty was based on the premise that such a withdrawal would have been permissible anyway through application of the general principles of international law. Therefore, a procedure under the Treaties, adjusted to the reality and needs of the EU and its Member States, instead of recurring to international law provisions, was deemed appropriate.
The last bullet point in particular seeks to explain the justification for Article 50’s inclusion in The Lisbon Treaty. What is most relevant here is the subject of international law. This passage from the paper helps to build a more concise picture:
- The application of international law to fill in alleged gaps in the EU Treaties has been often seen as flawed, due to the specific character of the EU as a supranational organisation that drew from international law for its own creation but then established an autonomous legal order with its own rules.
What we can take from this is that Article 50 changed the dynamic of how specific aspects to an EU treaty were recognised within the law. The paper makes this very clear:
Relevant international-law provisions cannot be applied in parallel to Article 50 TEU. Rather, the procedure and consequences of a withdrawal from the EU are now
governed by EU law and no recourse to international law is possible. This is all the more important as Article 50 TEU lowers the conditions for a withdrawal as stipulated under international law.
In short, Article 50 is subject to no oversight from international law. The conditions underpinning it’s content fall solely within the auspices of EU law. On one hand you could argue that this was a victory for the EU giving it greater autonomy and power to control its own treaties within its own laws. On the other you could contest why, given their renewed level of authority, the EU made the official avenue for triggering an exit from the union simplified and straightforward.
Consider the revelation that Article 50 ‘does not establish any substantive conditions for a Member State to be able to exercise its right to withdrawal, but only procedural requirements‘. Because of this, a member state is now under no legal obligation to state why they may wish to withdraw from the EU. They can simply decide to trigger their right to do so and use Article 50 as the necessary vehicle for beginning the process. Granted, the likelihood of such a scenario occurring without a referendum taking place may be non-existent. But nevertheless that is what Article 50 technically allows for.
Further aspects of importance to Article 50 include a limited time frame of two years for negotiations to conclude between a withdrawing state and the EU. After the two years, ‘membership ends automatically, unless the European Council and the member state concerned jointly decide to extend this period.’ The paper also stresses that Article 50 fails to cater for the revocation of a notice of withdrawal. Once it is triggered, the two year countdown is irrevocable unless agreement is found with the other member states of the EU to suspend the process.
Another point is how Article 50 adopts, according to the briefing paper, a ‘black or white approach‘ to membership of the European Union. For that reason, the prospect of a partial withdrawal is considered a non-starter. A revision of the current treaty is viewed as necessary for partial membership, something which has never been under discussion.
We can deduce so far that before Article 50 was established, no official means existed to begin the process of allowing a member state of the EU to leave the bloc. Indeed, before the UK invoked Article 50, there was no precedent for a sovereign member state wishing to depart the EU.
The wider context of Article 50 is of course The Lisbon Treaty. The Treaty allowed the EU to further consolidate powers and create an ‘ever closer union‘. Out of it came a ‘High Representative of the Union for Foreign Affairs and Security Policy‘ (which merged two previous positions into just one), and legal consolidation in the form of a three pillar system being down-scaled into the single legal personality of the ‘European Communities‘. Incidentally, it is this change in particular that allowed the EU to begin signing international treaties in its own name. The European Central Bank also gained the status of an official EU institution, and the European Parliament took possession of more powers amidst the creation of a European Council President (currently Donald Tusk).
Centralising power and bringing about an ‘ever closer union‘ is paramount to the EU project. The treaties themselves bare this out. The inclusion of Article 50 in The Lisbon Treaty seems to be at odds with this reality. Article 50 is only 261 words long, it’s contents matter of fact, undiluted, to the point. It’s brevity disguises the enormity of its consequences.
What Article 50 does not explain though is why, when the overall objective of the EU is closer integration, was the mechanism for secession created for the first time in the union’s history, with the rights to invoke the clause carrying no set obligations or restrictions.
To try and find some answers, let us look at what Lord Kerr – the creator of Article 50 – has to say about it. In March 2017 Politico published an article in which Kerr confessed to having no regrets about creating Article 50:
I don’t feel guilty about inventing the mechanism. I feel very sad about the U.K. using it. I didn’t think that the United Kingdom would use it.
Kerr then presented a motive for Article 50. Keep in mind that the passage below relates to 2002-2003 when Kerr first began work on the secession clause:
At that time, the rise of Austrian far-right leader Jörg Haider was a big worry for mainstream EU leaders and some southern European EU members had returned to democracy only in recent decades. Kerr imagined that the exit procedure might be triggered after an authoritarian leader took power in a member country and the EU responded by suspending that country’s right to vote on EU decisions.
“It seemed to me very likely that a dictatorial regime would then, in high dudgeon, want to storm out. And to have a procedure for storming out seemed to be quite a sensible thing to do — to avoid the legal chaos of going with no agreement,” Kerr said.
Jorg Haider (now deceased) was part of the ‘Freedom Party of Austria‘ (FPO) before leaving the party in 2005 to form his own political movement called the ‘Alliance for the Future of Austria‘ (BZO). The FPO is perceived as a right wing populist faction, much the same as the BZO. The apparent worry of EU leaders concerning the rise of the far right proved unfounded back in 2002 when the FPO scored only 10% of the electoral vote.
Matters have changed somewhat since then. Today, the FPO is seeking to go into coalition with the recently victorious Sebastian Kurz of the Austrian People’s Party (OVP). The OVP is recognised as a centre right party with Conservatism as its principle ideology.
We can surmise then that the alleged danger of a rise in far right populism back in 2002 and 2003 – the period when Article 50 was first conceived – perhaps proved a useful defence for bringing it to fruition, on the premise of orderly secession rather than chaotic separation. Kerr is adamant that even though there was no official means of instigating a desire to leave the EU prior to Article 50, a secession article has never been necessary to secede:
If you stop paying your subscription, stop attending the meetings, people would notice that you’d left.
As we have established, Article 50 underwent no alterations before The Lisbon Treaty came into force. Kerr confirmed to Politico that whilst many other articles to the treaty did cause plenty of debate, Article 50 ‘was not one of them‘.
In closing for this section, we will further gauge the mood of Kerr and also senior European politicians on the rise of Article 50 through a separate article published by NBC News just days after the UK voted to leave the EU.
We learn through this piece that it was former French President Valery Giscard d’Estaing who first proposed the creation of a secession article. Giscard apparently wanted to remove,
the fear, above all Anglo-Saxon, that the European Union was a sort of prison that you could never leave once you had entered it.
With this comment, a relationship between the UK and an official secession clause – perhaps only indirectly at this stage – was being made.
Kerr backed up Giscard’s view by saying that there was a motivation for wanting to defuse the idea that a country had no way out of the EU once becoming a member. But he also admitted that the Commission and the European Parliament had reservations on Article 50.
They didn’t like it because they thought it was sovereignist and if Jean Monnet (the French founding father of European integration) hadn’t thought it necessary, why add it now?
German Conservative Elmar Brok, a member of the European Parliament, was also skeptical about the inclusion of Article 50:
If a member state wanted to leave the EU, there were other ways. It didn’t require a special article.
Exactly what these ‘other ways‘ were Brok did not elaborate on. But he was not a lone voice of dissension. Both German and Dutch government representatives criticised Article 50, believing that it would ‘only encourage secession‘. Former German Foreign Minister Joschka Fischer believed that the clause ‘should be struck out‘, and that there existed ‘no need for an exit provision for the union.‘
Perhaps the most intriguing passage to NBC News’s article is the revelation that it was Martin Selmayr, the current head of cabinet to President of the European Commission, Jean-Claude Juncker, who added the two year restriction on negotiations to Article 50. According to their editorial, Selmayr is ‘widely seen as the most powerful man in Brussels.’ Back in September 2017 Selmayr told a conference in Brussels:
Brexit is bad, and it’s a stupid decision. The only people who can reverse it would be the British people and I am not a dreamer, I am a realist. Brexit will happen on March 29, 2019.
As previously mentioned, once Article 50 is triggered, the two year countdown begins, and can only be suspended or extended by unanimous agreement from the other twenty seven member states of the EU. Without that prerequisite, a member state will automatically drop out of the union once the two year negotiating window closes, whether a ‘deal’ is agreed or not.
**In Part Two of this series we will look at the political timeline of events that followed the introduction of Article 50**