The UK government has many decisions ahead of it including the BIG one, of when (or whether) to trigger Article 50: and a small one, of whether to ratify the UPC.
It is near certain that consideration of whether to ratify the UPC will not factor highly in the decision of whether or not to trigger Article 50: however the decision of whether or not to trigger Article 50 will affect the outcome of ratification.
Some of the concerns about ratification address hypothetical circumstances of any post-Brexit arrangement being found illegal, and there being no satisfactory solution. Legal certainty does not exist in a politically uncertain world, but it needs to be dealt with.
Both UK Counsel opinion referred to in this post and opinions of others, [for example the position paper of the Deutscher Anwaltverein (DAV)], consider this legally feasible.
Politically therefore, the question may resolve to, “What decision should the UK make to maximise the chances of a good outcome from a UK perspective?”
The chart below shows a decision tree on the (seemingly reasonable) assumptions that:-
- If the UK triggers Article 50 before ratification no form of arrangement that permits continued UK participation will be developed [simply because politically that would be extremely messy and would require goodwill that may be missing – see part IV of the DAV position paper].
- If the UK ratifies before triggering Article 50 an arrangement that permits continued UK participation could be developed if desired [See UK Counsel opinion and part I of the DAV position paper].
- The decision to trigger Article 50 is independent of UK ratification of the UPC (because in the scale of things, we are small beer) so the probabilities for triggering Article 50 are identical on both sides of the chart at the value “x”.
- If Article 50 is triggered after UK ratification of the UPC, with no ongoing UK participation in the UPC post-withdrawal, the probability of no transitional provisions preserving rights is assumed to be close to 0. It is in no government’s interests for rights to be lost.
In the chart, if Article 50 is triggered, the probability of an arrangement permitting ongoing UK participation in the UPC (if wanted) is “y” and the probability of this being found legal by the CJEU is “z”.
As can be calculated the probability of a good outcome (a functioning UPC including the UK as a member) is:-
- if UK does not ratify before the decision of whether to trigger Article 50 = (1-x)
- if the UK ratifies before the decision of whether to trigger Article 50 = (1-x) +x.y.z
Regardless of the values of x, y and z (which must all be positive and less than 1) – the probability of a good outcome if the UK ratifies before triggering Article 50 is greater than if the UK does not ratify.
If Brexit means Brexit and x=1 the difference is between having a chance and no chance.
A sheer self-interested calculation should tell the UK government to ratify now.