Keith Oliver

Keith Oliver

Head of International at Peters and Peters

Keith Oliver: How It Takes One Plus 27 to Tango

The Iron Throne at Number 10 is now firmly occupied by our new Prime Minister.  But how long he will remain in that position remains a vexed question.  Recent news reports - or more accurately perhaps - leaks from the Whitehall sieve (whatever happened to the “30-year rule” governing inter alia confidential Cabinet meetings) suggest that as many as 100 Tory MPs will seek to prevent a No Deal Brexit. 

Presumably the MPs concerned will do so at the same time as voting in support of motion of no confidence, thereby ensuring a general election and the possible imminent arrival of Jeremy Corbyn.  Those thinking of seeking relative peace in an offshore tax haven may find it hard to capitalize on any assets generated through their toil if, and when, the current Shadow Chancellor is installed in Number 11, and presses the “ON” button in his publicly acknowledged war game to deal with the collapse in the value of the Pound. 

Whether the new Prime Minster is our version of the Night King, or the adored Jon Snow, dealing with our friends across the Channel may prove quite challenging to say the least.  Whatever view one has of Theresa May’s negotiating style - and many litigators would struggle to find any complimentary words at all - the pressing of the Article 50 button and the signing of an enforceable international treaty without Parliamentary approval does not suggest, at the very least, any serious joined-up thinking. 

Putting aside Donald Trump’s intellect and personality, let alone integrity, one of his half decent ideas was to sue the EU - an idea laughed off by PM May.  The odd thing about the Donald’s tangential concept is that buried away in the Treaties of the EU is the requirement upon all members of the European Union to treat each of the others with respect and good faith.  Of course the ultimate determination of what is or is not good faith lies with the European Court - but let’s not let that requirement distract us for the moment. 

What if - and Brexiteers please bear with me and think through the concept carefully – our new PM in a classic piece of chess playing acumen sends a two line letter to Donald Tusk et al at 22:59 (i.e. 23:59 CET) on Thursday 31 October, in the following terms:

Dear Mr President, please accept this letter as formal notice on behalf of Her Majesty’s Government (“HMG”) that, without prejudice to HMG’s right to give notice under Article 50 of the Treaty on European Union, as and when appropriate circumstances exist (such circumstances to be determined according to English law), the UK hereby revokes the Article 50 Notice served on 29 March 2017”. 

An easy, straightforward legal concept, and one that is bound to drive the EU 27, let alone Tusk and his successor, Charles Michel, into apoplexy. In other words, we remain a member, we turn the clock back to the circumstances prevailing after Parliament’s vote to activate Article 50, while enabling us to approach fresh negotiations at a time and in a manner of our own making.  Negotiations commenced with an agreed Parliamentary approach that will not require the nonsensical ideas that have been ventilated, such as proroguing parliament, ideas which may throw us into a constitutional crisis of a kind not seen since Henry VIII.  (Making the headlines this month was Sir John Major’s apparent threat to bring judicial review proceedings if an attempt is to prorogue Parliament is made. Doubtless Oliver Cromwell will shortly arise from the ashes, having been resting peacefully for the last 350 years…).     

In this way, may I respectfully suggest, we can start with a clean sheet, give effect to the mood of Parliament and the people.  Most importantly, perhaps, we could see competent lawyers - drawn from the great and the good of the legal community as a whole - undertake practical negotiations, when there is a mandate to do so.  And, yes, with some proper ideas. 

What is stupefying to this correspondent is the clamour to avoid a no deal Brexit, in circumstances where a deal simply requires two or more parties to reach agreement on the issues that matter.  An approach of the kind ventilated above may bring about such agreement, and lead a unanimous EU 27 to want to tango with HMG.  In any event, The Donald will doubtless then claim credit for a successful negotiation.