"Article 50" may be the most important term in British politics today. Everything revolves around it. It is Article 50 that triggered our exit from Europe in March, that sets the time limit on the—currently stalling—Brexit negotiations, and that we must revoke if, as the consequences of the "Leave" vote become clear, we decide we would like to Remain after all. The Brexit debate is immensely complicated—but Article 50 is at the centre of it all.
That in mind, I met with the man who drafted it, John Kerr, in the hope he could shed some light on Britain's constitutional leap in the dark—and whether it is possible for us to change course. "Did I ever dream then that we, the Brits, could be the departing country? No I did not," the seasoned diplomat confessed to me in Westminster last month.
Now, Kerr is in a rush to get Britain to change its mind. Having triggered A50 in March, we have just a year and a half left in which to settle with the EU. When he wrote the exit clause, Kerr included the two-year limit in part to "reassure" Eurosceptics who thought the EU was on the way to being a superstate, he told me. He drafted A50 thinking it was “important to emphasise that you could not be kept in the club by being meshed in an endless negotiation”—so the two-year limit really will count.
Now facing this strict deadline, Britain needs to get its act together—fast. Pro-Europeans are complacent, Kerr suggested, if they think they can play for time. Could Article 50 be extended? The PM today ruled it out, while Kerr told me: “Anything longer than about six months” is “implausible.” The clock is well and truly ticking.
Transitional arrangements won't offer Britain much cover, either. "The transitional deal is the hardest to negotiate," Kerr said. "If you don’t know where you’re going, you can’t build a bridge to the destination." Nor will a fudged option work. “I don’t think that the Norway option will do for us," he said. The impression I got was that we may be looking at a situation with just two possibilities: a swift and hard exit, or continuity Remain.
His warnings will set alarm bells ringing in Whitehall, for his diplomatic expertise is widely recognised. As well as drafting Article 50, he was ambassador to the European Union from 1990-1995, and then US ambassador. Returning to London, he became Secretary General of the European Convention in 2002/03.
"Did I ever dream then that we, the Brits, could be the departing country? No I did not"In a deep voice—pausing occasionally to thump the side of his armchair—the 75-year-old Scot went into more detail about the controversial exit clause.
"I do remember people saying it's unnecessary because nobody will ever use it. My argument against that to these people was 'Well no, you can conceive of a circumstance when it might be used,'" he said. The clause ensured that “if you wanted to get out, you could get out.”
Back then, "it was fun to be a negotiator.” But "it must be very unpleasant now, I feel very sorry for my successors." One of them Kerr knows first-hand. While serving under John Major he worked with David Davis, now Brexit secretary. He is "an honest man" with "an impossible job," Kerr said.
However difficult Davis’s job, progress so far been less than impressive. “We are concentrating on attacking [The EU’s] propositions but taking care not to put forward any of our own. That can't go on for a very long time, we can’t get anywhere."
Kerr, a fierce Remainer, hopes Brexit never comes to pass. But the message was clear: if we must have Brexit, far better that we exit in a managed fashion. This chaos will simply not do.
The failure of Davis’s Brexit department goes further. Ahead of the most recent round of negotiations it published several "position papers," setting out the UK's stance on issues ranging from the customs union to the European Court of Justice. Some greeted this flurry of documents with a sigh of relief: after months of delay, finally Britian was getting its act together. Kerr felt rather differently. "Now, I think the little papers that have come out over the summer—which are more in the nature of discussion documents than negotiating papers—are rather strange. They duck the big issues or they raise options without declaring preferences. It’s very hard to spot a policy in them."
Speculating as to the cause of this shortcoming, Kerr levelled a staggering accusation of government incompetence. "I think the negotiation which has mattered to the government up to now has been the negotiation inside the Conservative Party. I don’t think much time is being spent thinking about how to influence the foreigners," he said.
Brexit is not simply a UK-EU issue; it will affect our relationships with countries across the world. If we do leave Europe in 2019, Kerr said, Britain's role on the world stage is set to diminish. “A lot of other capital cities will not be interested in what we think anymore." With all the experience Kerr has, he is more than qualified to make that call. "We will have a lot less influence inside Europe, obviously, because why should they have anything to do with us when we're going to leave, but we're also [going to be] a lot less important in Washington or Delhi or Beijing."
That would be quite the decline. "I remember the days when we were either the most powerful member state or the second most powerful member state," Kerr said. Indeed, while US ambassador, he was struck by "the extent to which Bill Clinton, who was president then, attached importance to what the Brits thought." This gave us some real diplomatic heft. "The fact that we were the ones 25 years ago who could move the Americans was seen as a European asset and people took us very seriously in Brussels." Now, though, "that's all gone." Even “Daily Telegraph readers” would be shocked by the extent to which Brexit will hit our international standing.
"I think the country will wake up to the fact that it has been ignominious"Another problem still could present itself—one which you may not have considered but which, if it comes to pass, will affect almost every Briton. "I don’t think that the leave campaign made clear that flights in and out of continental Europe would stop unless we negotiated some replacement for the regime we’re members of," Kerr said. Such a result would leave holidaymakers furious.
Given that Kerr thinks Brexit will have such disastrous consequences, my next question was obvious: might Britain wind up remaining after all? Might Britons start to change their minds as the Brexit storm starts to brew? Might we change course before A50 runs out?
Kerr was forthright. "I think the country will wake up to the fact that it has been ignominious, that nobody is interested in our views anymore." But what then? Public opinion turning is one thing—Britain remaining is another, requiring political and even legal action. "The country voted to leave. I don’t think you can reverse that, even though I hate referenda, without having another referendum," Kerr said. This would infuriate Brexiteers who view last year's referendum result as sacrosanct, and accuse those who question it of "subverting the will of the British people." But according to Kerr "The ‘will of the people’ stuff is quite annoying. If you imagine that the referendum had been the other way around, 52 remain, 48 leave, would the editor of the Daily Mail have said it would be disgraceful to argue for another referendum?”
The political mechanics are in principle clear then. But the Article 50 clock continues to tick away. Do nothing to change this and, whether we like it or not, we will be thrown out into the cold when the time runs out. Could Article 50 be revoked? Here the plan crystalised. Kerr is arguably the world's greatest authority on this subject, and confirmed: "Legally we can revoke." Asked to explain further, he said: "Of course you can take it back." It is just "a notification of intention." Therefore, "if your intention changes" the process can be reversed. His verdict follows recent comments from the EU to the same effect. Antonio Tajani, president of the European parliament, stated in April that Britain would be welcomed back if it asked. Donald Tusk echoed this sentiment in a comment last month. Kerr said: "Merkel, Macron, they're all saying 'we really hope you're going to change your mind, if you'd change your mind that'd be great.'"
He summed up his thoughts: "I think that the consequences of leaving will become clear before we leave. I think some of them have become clear already." Watch for that turn in public opinion over the coming months. Kerr could just be onto something. Article 50 hasn’t run out yet.
