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BREXIT-NO-EXIT: What If Pharaoh Won`t Let Moses` People Go? THE SCARY EU-TREATY NO-EXIT LOOP(HOLE) OF ARTICLE 50

Summary:

  • Article 50 of the EU's Lisbon Treaty sets out the procedure to be followed if a country wishes to leave the EU
  • The withdrawal process starts with a statement from the Prime Minister to the European Council (the collection of EU heads of state and government).
  • Then a negotiation begins, with the 27 continuing members on one side of the table and the UK on the other.
  • The withdrawing state no longer counts as a member of the European Council for the purpose of the negotiations.
  • The negotiation period is set for 2 years. What can happen is this:
    a) The negotiation completes within 2 years with negotiated terms that are legally binding for a future period (i.e. 1-100 years) as set out between the ex-member the still-members.
    b) No terms are agreed upon within the 2 years.
  • IF NO TERMS ARE AGREED UPON WITHIN 2 YEARS BETWEEN THE UK AND THE 27 CONTINUING MEMBERS, A VOTE BETWEEN THE 27 CONTINUING MEMBERS MUST BE CAST WHETHER TO EXTEND THE NEGOTIATION PERIOD FOR ANOTHER 2 YEARS OR TO CEASE NEGOTIATIONS AND LET THE WITHDRAWING STATE LEAVE WITHOUT TERMS. IT IS VERY LIKELY, EVEN THOUGH A UNANIMOUS VOTE OF THE 27 CONTINUING MEMBERS IS REQUIRED TO EXTEND A NEGOTIATION PERIOD FOR ADDITIONAL 2 YEARS, THAT SUCH AN EXTENSION PERIOD WERE TO BE VOTED UPON FOR 2 REASONS:
    A) THE UK AS WITHDRAWING STATE WILL CONTINUE TO BE A PAYING MEMBER TO ALL ITS DUTIES UNDER THE LISBON TREATY AND IS REQUIRED TO PAY ALL DUES IT OWS TO THE EU OR CONTINUIUNG MEMBER STATES.
    B) THE UK AS WITHDRAWING STATE HAS NO LONGER A CASTING VOTE AS MEMBER OF THE COUNCIL AND CANNOT EXERCISE ANY PREVIOUS RIGHTS AS IT COULD WHEN IT WAS A MEMBER BEFORE SUBMITTING THE APPLICATION FOR WITHDRAWAL.
  • IN ONE SENTENCE: THE UK CAN LEGALLY BE KEPT IN A NEGOTIATION LOOP HAVING TO PAY ITS DUE TO THE EU WITHOUT BEING ABLE TO EXERCISE ANY OF ITS RIGHTS AND DOES NOT EVEN HAVE THE POSSIBILITY TO INFLUENCE WHETHER TO EXIT THIS NO-EXIT-LOOP (OR TO NOT EXIT IT), BECAUSE ARTICLE 50 ALLOWS FOR THIS LOOP TO CONTINUE INDEFINETELY!

Alan Renwick of the consitution unit of UCL explained these key facts (Source:constitution-unit.com):

Article 50 of the EU's Lisbon Treaty sets out the procedure to be followed if a country wishes to leave the EU. In summary, the withdrawal process starts with a statement from the Prime Minister to the European Council (the collection of EU heads of state and government). Then a negotiation begins, with the 27 continuing members on one side of the table and the UK on the other. Put simply, Article 50 gives the 27 continuing member states predominant power. That comes partly from the fact that, according to Paragraph 4 of Article 50, the withdrawing state no longer counts as a member of the European Council for the purpose of the negotiations. But mainly it comes from the guillotine imposed by the two-year deadline and the requirement for unanimity to extend that deadline. The negotiations will be long and contentious. An extension beyond two years might well be needed - but any one of the 27 could block that if it didn't get its way on its own priorities. Here follow the points you have not read in the media yet knowing is a MUST:

  1. There is no requirement for the Prime Minister to trigger Article 50 immediately after a vote for Brexit.
    This is due to the UK`s EU Referendum Act, which received royal assent just before Christmas. It sets out the referendum rules, so could be expected to define the effect of a vote either way. Alas, it does not: it makes no provision as to the referendum's legal effect. That is because, strictly speaking, it has no legal effect. It will be purely advisory and, in law, the government could simply ignore the result.
  2. Following a vote for Brexit, a period of negotiations about the UK's future relationship with the EU would begin, as set out in Article 50 of the Lisbon Treaty. The Prime Minister triggers this by notifying the European Council (the collective body of the 28 member states' prime ministers or presidents) that the UK intends to withdraw. That opens a two-year window for negotiating withdrawal terms - a period that can be extended, but only with the unanimous support of all the member states. UK leaves once with a deal - which requires the support of the UK and a 'qualified majority' of the remaining 27 member states (specifically, 20 of them, comprising at least 65 per cent of their population) - is struck. If the two-year period comes to an end with neither a deal nor an extension, the UK leaves automatically on terms the UK may not like.
  3. Article 50 skews the balance of power in the negotiations in favour of the continuing member states. That is because of the two-year rule and the unanimity requirement for extensions to that period. If we find ourselves outside the EU with no deal, we automatically revert to World Trade Organization (WTO) rules on trade. That means that tariffs have to be imposed on trade between the UK and the EU.
  4. Both sides in the referendum campaign agree that this whole process would take several years, during which the UK would remain in the EU. The Remain side has always argued that the negotiations would be lengthy; the Leave side has now indicated that it would like to complete the process by 2020. Until the negotiation process is complete, the UK remains fully subject to its obligations under EU law.
  5. The process of withdrawal would involve three sets of negotiations:
    ->First would be the negotiation of the withdrawal terms themselves. These would likely include, for example, an agreement on the rights of UK citizens already resident in other member states and of EU citizens resident in the UK. As Professor Sionaidh Douglas-Scott has explained, those rights - contrary to what some have said - are for the most part not protected under existing international law.
    ->Second, it would be necessary to negotiate a trade deal with the EU. The official Vote Leave campaign has confirmed that it wants such a deal and correctly points out that everyone's interests would be served by having one. The content of the deal would, however, be hotly contested. Vote Leave focuses on securing free trade in goods and argues that, because the UK imports more goods from the EU than it exports to the EU, we could expect to be offered a good deal. But there would be greater difficulties in services. Open Europe (which campaigns for EU reform and is neutral in the referendum) highlights particular difficulties in financial services, where it rates the chances of maintaining current levels of access to the EU as 'low'.
    ->Third, the UK would have to negotiate the terms of its membership of the WTO and would want also to negotiate trade deals with the over 50 countries that currently have such deals with the EU, as the existing arrangements will no longer apply to the UK from the moment of Brexit. The WTO itself has warned that this would not be straightforward: the UK would not be allowed just to 'cut and paste' the terms of WTO membership that it currently has through its EU membership. Similarly, while we might hope that other countries would agree quickly to extend the EU rules to the UK, we cannot presume that all would - and the UK itself might want different terms in some cases.
  6. Parliament has no formal say over whether or when Article 50 is invoked, as this lies within the royal prerogative powers that are exercised by government. Government's powers in matters of foreign policy are very extensive, and parliament has veto rights only in respect of treaties. If parliament were to pass a motion calling on the Prime Minister not to invoke Article 50, we might nevertheless expect him (or perhaps, by then, her) to respect that.
  7. Parliament would, however, be able to vote on the withdrawal deal, as that would be a treaty.
  8. Beyond the negotiations, parliament would also have a great deal of legislating to do. Withdrawal would require repeal of the European Communities Act (NYSE:ECA) of 1972 - the legislation that underpins the UK's EU membership. But there would also be two much larger tasks. First, a great deal of legislation has been passed over the last forty years that enacts provisions required under EU membership. Parliament would presumably wish to review - and in places amend or repeal - this body of law during or following withdrawal. Second, EU 'regulations' apply directly in the UK without domestic implementing legislation and would automatically cease to apply upon repeal of the ECA. But it would be essential to retain some of these, at least in the short term: otherwise, we would lack rules on many important matters. Agata GostyƄska-Jakubowska points out, for example, that much of the trading done in the City of London would overnight become illegal unless new provision were made.

SCARY STUFF FOLKS, SCARY STUFF...

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