Saturday, 15 October 2016

Speech by Donald Tusk ~ setting out the stall

This brief post highlights a significant speech in which the European Council President refers to Brexit - Speech by European Council President (Donald Tusk) at the European Policy Centre Conference

Mr Tusk said:  " ..... let's move on to Brexit. As for the negotiations, the situation is pretty clear. Its framework will be set out by the European Council - that is by the guidelines foreseen in the Treaty. Our task will be to protect the interests of the EU as a whole and the interests of each of the 27 member states. And also to stick unconditionally to the Treaty rules and fundamental values. By this I mean, inter alia, the conditions for access to the single market with all four freedoms. There will be no compromises in this regard.

When it comes to the essence of Brexit, it was largely defined in the UK during the referendum campaign. We all remember the promises, which cumulated in the demand to "take back control". Namely the "liberation" from European jurisdiction, a "no" to the freedom of movement or further contributions to the EU budget. This approach has definitive consequences, both for the position of the UK government and for the whole process of negotiations. Regardless of magic spells, this means a de facto will to radically loosen relations with the EU, something that goes by the name of "hard Brexit".

This scenario will in the first instance be painful for Britons. In fact, the words uttered by one of the leading campaigners for Brexit and proponents of the "cake philosophy" was pure illusion: that one can have the EU cake and eat it too. To all who believe in it, I propose a simple experiment. Buy a cake, eat it, and see if it is still there on the plate.

The brutal truth is that Brexit will be a loss for all of us. There will be no cakes on the table. For anyone. There will be only salt and vinegar. If you ask me if there is any alternative to this bad scenario, I would like to tell you that yes, there is. And I think it is useless to speculate about "soft Brexit" because of all the reasons I've mentioned. These would be purely theoretical speculations. In my opinion, the only real alternative to a "hard Brexit" is "no Brexit". Even if today hardly anyone believes in such a possibility. We will conduct the negotiations in good faith, defend the interests of the EU 27, minimise the costs and seek the best possible deal for all. But as I have said before, I am afraid that no such outcome exists that will benefit either side. Of course it is and can only be for the UK to assess the outcome of the negotiations and determine if Brexit is really in their interest. Paraphrasing Hannah Arendt's words: 'a full understanding of all the consequences of the political process is the only way to reverse the irreversible flow of history'.  Thank you."


Mr Tusk's speech indicates the possibility that the outcome of negotiations can be rejected by the UK which would then remain a member of the EU.  That possibility is at odds with the view that once Article 50 is triggered the UK would leave the EU (after 2 years) regardless of the outcome of negotiations.

The parties to the High Court litigation (previous post) are proceeding on the assumption that the Article 50 trigger may not be reversed.  The legal meaning of Article 50 is a matter of EU law and can only be definitively decided by the Court of Justice of the EU.  The possibility that the High Court may make a reference to the Court of Justice of the EU cannot be entirely ruled out.

The House of Lords Constitution Committee in its report on Article 50  said that Parliament should act on the assumption that triggering Article 50 would be irreversible, and that Article 50 should be triggered "only when it is in the UK's best interests to begin the formal two-year negotiation process"
conducting negotiations on the basis that Article 50 is final.

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