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FactCheck: Is it really "illegal" for the government to negotiate with the UK before Brexit?

Government Chief Whip Regina Doherty made an extraordinary claim on Tonight With Vincent Browne this week. Was she right?

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ATTENTION IS TURNING to the exact process by which the UK will leave the EU, and on these shores, to how the terms and conditions of Brexit will affect Ireland, and how well we’re prepared for the potential fall-out.

On Tuesday’s Tonight With Vincent Browne on TV3, Government Chief Whip Regina Doherty faced criticism of the cabinet’s contingency planning for Brexit, but firmly denied she or her colleagues could do any more.

In fact, she claimed it would be “illegal to start discussions or negotiations” before the UK invoked Article 50 of the EU Treaty, thereby formally starting the process of leaving the EU.

Is this true?

Claim: It’s illegal for the Irish government to start discussions or negotiations about Brexit with the UK government, until Article 50 is triggered
Verdict: FALSE

  • The UK must trigger Article 50 before formal negotiations between the UK and EU can begin
  • There is no legal barrier to individual EU member states (like Ireland and the UK) having negotiations before that
  • EU heads of government have informally agreed there will be no negotiations before the UK triggers Article 50, but this agreement does not have the force of law.

What was said:

Source: TheJournal.ie/YouTube

You can watch a video including Minister of State Doherty’s claim, and a breakdown of the facts, above. And you can watch the episode in full here.

Our focus is this exchange with Sinn Féin TD Peadar Tóibín, who had been criticising what he regards as the government’s inaction and lack of preparation for Brexit.

Tóibín: Britain are, as Regina says, exerting their demands, and Enda is sitting on his hands. Because what we really should be doing – this government should be working out the best-case scenario for Ireland in this whole mess…

Doherty: And what is that, Peadar?

Tóibín: Well first of all, the best case scenario is that we have free movement in Ireland and within Britain, and that we have people that are able to trade with people in Britain…

Doherty: And how would we do that, at the moment, when it’s actually illegal to start discussions or negotiations before the article is even triggered? [Emphasis added].

When Vincent Browne refuted this, Doherty insisted, adding “It’s against the treaty”.

The Facts

Brexit Source: Daniel Leal-Olivas/PA Images

In response to our request for evidence, a spokesperson for Regina Doherty cited an agreement made at an informal meeting of 27 of the EU’s heads of government, on 29 June.

Section 2 of that agreement states:

There is a need to organise the withdrawal of the UK from the EU in an orderly fashion. Article 50 TEU provides the legal basis for this process.
It is up to the British government to notify the European Council of the UK’s intention to withdraw from the Union. This should be done as quickly as possible.
There can be no negotiations of any kind before this notification has taken place. [Emphasis added].

Doherty’s spokesperson added:

The agreed and united EU position is that there can be no negotiations until Article 50 has been triggered, and Ireland adheres fully to that position.
That does not mean of course that we cannot have exploratory discussions on ongoing bilateral issues, including those which will need to be sorted out.

In response to our request, Doherty did not cite any law, regulation or rule which would make it illegal for the Irish government, its members, or its representatives, to “start discussions or negotiations” with the UK government, its members, or its representatives, before Article 50 is invoked, other than Article 50 itself.

article50full Source: EU

Article 50 of the EU Treaty (page 31) sets out the process by which a member state can leave.

The UK, for example, sends a notification to the European Council that it is invoking Article 50, and a formal process of negotiating the terms of the UK’s exit begins, between the UK and the EU/European Council.

But Article 50 says nothing about negotiations or discussions between individual member states, on issues relating to Brexit.

The negotiations mentioned in Article 50 are those formal negotiations between the UK and EU, and not talks between Ireland and the UK (or the UK and any other member state).

Therefore, the requirement to wait until Article 50 is triggered, only applies to those formal talks between the UK and EU.

Gavin Barrett, Professor of European Constitutional and Economic Law at UCD, told FactCheck:

There would be nothing illegal at all in the Irish government talking about anything it wanted with the United Kingdom government.
…Insofar as Ireland talks to the UK, in the interim period, it is clear that it will not be negotiating on behalf of the 27 non-UK members of the EU.

Irish Taoiseach visit to the UK Source: PA Archive/PA Images

The point here is that, by definition, Ireland could not negotiate as the EU or on behalf of the EU, with the UK, so the process outlined in Article 50 does not apply.

Any discussions between Ireland and the UK would, inherently, be bilateral discussions even if they touched on issues relating to Brexit, and so would fall outside the limitations of Article 50.

In response to a request for clarification, Regina Doherty’s spokesperson said “any negotiations before Article 50 is triggered fall outside the legal basis set out in Article 50″.

But this is precisely why bilateral negotiations between Ireland and the UK would not be limited by the terms of Article 50. As Professor Gavin Barrett told FactCheck:

The mere fact that negotiations before notification on the part of the UK would fall outside the process set out in Article 50 does not make them illegal.

Finally, the position agreed by EU heads of government at the informal meeting on 29 June is just that – an informal agreement of principles, without the force of law, or sanctions.

Regina Doherty’s claim was that it is “illegal” for the Irish government to enter Brexit-related negotiations or discussions with the UK, before Article 50 is triggered.

We rate her claim FALSE.

TheJournal.ie’s FactCheck is a signatory to the International Fact-Checking Network’s Code of Principles. You can read it here.

For information on how FactCheck works, what the verdicts mean, and how you can take part, check out our Reader’s Guide here

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About the author:

Dan MacGuill

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