Back-to-front Brexit - the basics

The UK is in political turmoil.

I believe that a key factor in the causation of that chaos is what I'm calling "Back-to-front Brexit".

In other words, the United Kingdom and the European Union have attempted to carry out the Article 50 process in the wrong order.

Let me explain.

Anyone who has spent time reading Article 50 of the Treaty on European Union must acknowledge that it's not an easy read.

Here is Paragraph 2 of Article 50 which is the key to understanding what I mean by Back-to-front Brexit.

"2. 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."

The key sentence is the second one:

"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."

 The key phrases are as follows:

"... 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."

Again, increasing the focus on the text:

"... the Union shall negotiate ... an agreement ... taking account of the framework for its future relationship with the Union."

In plain English (my paraphrase of the Article 50 TEU text):

"The European Union shall negotiate a Withdrawal Agreement taking into account the Framework for the Future Relationship".

For the negotiation of the Withdrawal Agreement to "take account" of the Framework for the Future Relationship, the Framework for the Future Relationship must already exist.

In other words, so my argument goes, a correct application of Article 50 requires that the Framework for the Future Relationship must come FIRST.

In other words, the Article 50 TEU negotiation process that we have seen since Theresa May's letter of 29th March 2017 has been carried out in the wrong order.

Doing things in the wrong order has, in turn, led to the current political chaos in the United Kingdom.

If I'm right that the Article 50 TEU negotiation has been carried out incorrectly and therefore unlawfully, then serious questions must arise about whether the supposed Withdrawal Agreement agreed by the European Council in November 2018 can be lawfully ratified by the United Kingdom or lawfully concluded by the European Union.

Given those potential implications it seems to me that my proposition that the Article 50 negotiations have been seriously messed up requires to be examined in detail as a matter of urgency.

A host of legal and political questions arise, some of which I hope to deal with in future posts on this blog.