By Matthew vonAllmen
The Treaty of Lisbon is one of 26 legal documents which delineate the nature of the European Union (EU). Three of these documents are no longer in force; another eight are minor updates to previous agreements. Several more inducted new member states into the EU. All of them pale in importance to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), both of which form the crux of modern EU law.
But the Treaty of Lisbon is special. When consolidated with its predecessors it totals 478 pages—a veritable textbook of rules and regulations. Buried deep in those pages lies Article 50, which allows member states to withdraw from the EU.
Article 50 appears innocuous at first glance. It’s a mere five paragraphs long, and anyone skimming through the TEU is likely to overlook it. Indeed, Article 50’s inclusion is an afterthought; prior to the Treaty of Lisbon, the TEU contained no formal secession mechanism. The initial version of the TEU—the Maastricht Treaty—had been drafted without one. Had no member state attempted to leave the EU, the addition could have proven unnecessary. Article 50 would have been consigned to the dustbin of history. The Brexit referendum, however, brought Article 50 to center stage. Once it is invoked, Britain will be sent spiraling out of the European Union forever. Oddly, despite the success of the pro-Brexit campaign, Article 50 remains untouched.
Former Prime Minister David Cameron made a promise in the days leading up to the Brexit referendum: should Britain vote to leave the European Union, he would trigger Article 50 immediately. This was intended to make the referendum politically, if not legally, binding. However, following the results of the referendum both the British pound and stock market fell precipitously. Rather than place further stress on his country’s economy, Cameron unexpectedly resigned without invoking Article 50—leaving his political opponents ruined.
Whatever one’s opinions of Cameron, it is impossible not to admire the man’s political maneuvering. By resigning and triggering a Conservative Party election, Cameron effectively presented his potential successors with three options. First, they could refuse to invoke Article 50 and suffer the public backlash. Second, they could trigger Article 50 and contend with a possible recession, a renewed Scottish secession attempt, and Irish upheaval. Third, they could simply drop out of the race. Members of the pro-Brexit campaign were barred from the first two options—they had made too many grandiose promises to deliver on them all. Exiting the EU is a herculean project. It involves reviewing heaps of legislation and international agreements while under intense public scrutiny. The next Prime Minister would need both skill and relative anonymity to navigate the resulting mess. Boris Johnson, widely considered Cameron’s most likely successor, announced he would not seek his opponent’s former office. Cameron’s sudden resignation had effectively locked him out of the running.
Article 50 was placed on the back burner while the Conservative Party selected a new Prime Minister. Rather than choose a prominent member of the pro-Brexit campaign, the party selected Theresa May, who promised to leave the EU at the earliest opportunity. However, a recent development has made her job a great deal more difficult. On November 3rd, Her Majesty’s High Court of Justice ruled that the Brexit referendum was non-binding; the UK parliament would need to leave the EU of its own accord.
This is not new information. Parliament was aware of the referendum’s advisory nature prior to the ruling. The High Court’s decision matters because it clarifies the situation to the public. It is now possible for parties which oppose Brexit to fight back without losing face—not that they will succeed. The Conservative Party remains captive to its base, and holds a majority in the House of Commons. It would take a strong alliance between the Labour Party, the Scottish National Party (SNP), and rebels among the Conservative Party to prevent Article 50 from being invoked. Furthermore, the result of the Brexit referendum is widely seen as a legitimate expression of popular opinion; such an alliance would need to counter this perception before opposing the Prime Minister’s plans.
In addition, potential leadership for an anti-Brexit coalition is scarce. David Cameron’s resignation left the fragments of the “Remain” campaign headless, and no natural substitute seems ready to take his place. Labour Leader Jeremy Corbyn kept his party away from the limelight in the days prior to the Brexit vote, and has publicly stated that parliament should trigger Article 50 in accordance with the results of the referendum. Neither the SNP nor the remnants of the Liberal Democrats have the legislative muscle to take up the mantle either.
All evidence marks the recent delays as temporary. The High Court’s decision may slow the Prime Minister for a week, but nothing more. Her decision to trigger Article 50 is only a matter of time.
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