“Shall” I Explain Why this Spectator Story is “Utter Bollocks”?

The editor of The Spectator, Fraser Nelson has been pushing on Twitter a story by Charles Day on the Spectator blog that there is a legal onus on the EU to “to do a Brexit deal”. The crux of the argument is the mandatory language used in Article 50 TEU which apparently places legal duties on the EU – but not the UK – to negotiate AND conclude “a deal”. In a (later deleted) tweet, Mr Nelson stated that:

The law is clear: the EU is obliged (by its own rules) to offer a deal that Parliament can accept says Charles Day.

I described this claim as “utter bollocks’ in a tweet which got rather a lot of attention. So I thought I should explain my objections. It won’t take long.

Mr Day’s position is this:

Let me be very clear: there is a binding legal obligation upon the EU to provide us with what the media call ‘a deal’. Not only shall they negotiate, but they shall “conclude” one.

This apparently derives from the wording of Article 50 TEU which states:

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

There is clearly a lot of mandatory language here about what the EU “shall” do once a state notifies the EU of its intention to withdraw.

However, the use of the word “shall” is simply demonstrative of the steps which the institutions “shall” follow in the negotiation and conclusion of an agreement. In this respect, Article 50 merely echoes Article 218 TFEU which sets out in a generic fashion the standard operating procedure to be following by the EU in negotiating international trade agreements. As a reminder, Article 218 TFEU states this:

2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3. The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team. …

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

The same mandatory language is used in the treaties but to do no more than establish the correct steps in the procedure to be followed by the institutions.

Now, would anyone seriously contend that this mandates the EU to do a trade deal with the U.S.A. rather than simply setting out what process to follow should a negotiation be initiated and an agreement be reached that would be capable of being approved and concluded by both sides?

Not only does Mr Day misunderstand the legal significance to be attached to this wording, Mr Nelson extrapolated further in his assertion that the legal obligation extended to the content of the deal insofar as it had to be acceptable to the UK Parliament. Following the logic and the analogy earlier, this would be equivalent to stating that the EU was under a legal obligation to do a trade deal with the U.S.A. that the US Congress would accept.

Politically, it is clearly inadvisable for the EU and the UK to negotiate a deal which – recognising that it has to be approved by both the European Parliament and the Westminster Parliament – they know could not command approval by those institutions. That is why on the EU side, negotiators have kept the European Parliament informed throughout the negotiations.

It would be quite wrong, however, for the EU to interfere in the UK’s constitutional system for parliamentary approval and therefore the responsibility for the negotiation of a deal acceptable to the UK Parliament necessarily has to be a responsibility of the UK Government.

Which is also why the EU has insisted that if the UK wants something different from the Withdrawal Agreement it negotiated with the EU, the UK has to demonstrate what it wants and that what it wants will obtain a majority in the Commons. It is not for the EU to second guess the UK Government or to interfere in the constitutional relationship between the Government and Parliament.

The blame-shifting for a No Deal Brexit is clearly well underway. But can we avoid the utter bollocks of pretending that EU law demands that the EU offers the UK what it wants, not least when three years on from the referendum, we still have very little idea what that might be? Shall we?

Kenneth Armstrong is Professor of European Law at the University of Cambridge and author of Brexit Time – Leaving the EU: Why, How and When?