Top Brexit thought leader changes stance on Article 50

Admits his assumption government would act rationally was “incorrect”

david

A top media lawyer and leading legal voice in the months post-EU referendum has shifted his stance on whether Article 50 will be triggered.

In a series of tweets posted to his timeline yesterday, solicitor David Allen Green told his 84,000+ followers that his view on the legal mechanism for leaving the EU and whether it will ever be activated has “shifted”.

Green — who has recently been commissioned by Oxford University Press to write a book on Brexit — believed Article 50 was very unlikely to be triggered, a view he was vocal about on social media.

This stance was shared by the likes of head of Durham Law School Thom Brooks and, interestingly, Legal Cheek readers. In response to comments made by Brooks in August suggesting Article 50 would never be invoked, we ran a Twitter poll to find out whether our readers agreed with him — and they did.

article-50-twitter-poll

Now Green, one of the most vocal proponents of this viewpoint, has clarified his position in a series of nine tweets.

It will be interesting to see whether Green’s revelation will prompt any other Article 50 sceptics to change their viewpoint.

73 Comments

Anonymous

Great article! More stories about people who have slightly altered their views please!

(22)(1)
R T Hartley

Like so many I have followed the Brexit situation on TV, Newspaper articles, and even brief talks with Ministers. To me, one thing stands out. They are all treating this in the same manner as passing a bill through Parliament but Brexit is unique, there are no rules apart from “auctioning clause 50”. None of our most scholarly lawyers know any more than I do. The Prime Minister of the day put a question to the people in a very clear way and the result was to leave the EU a.s.a.p. “Experts” can huff and puff all they like but the only way to achieve the separation is to BEGIN. Things will not go according to any plan. Ask any Army commander. If we do not think we are capable of looking after ourselves what use is a British Government. I think we are more than cabable. Ignore the doubters and be positive.

(7)(9)
Trumpy

When brexit happens, Irwin Mitchell and Addleshaw will become insolvent.

Honest.

(2)(1)
Anonymous

Although commercial legal services will face difficulties, arguably Irwin Mitchell is in a slightly safer (!) position than many firms on account of the security afforded by factory PI stuff. People get injured regardless of the EU position.

(0)(0)
David Allen Green

Thank you for an entire article made up of my tweets from yesterday.

The second headline is misleading. It is the point at tweet number 6 which is more important than number 5 for the shift. Please don’t me misled by the second headline.

Fwiw I also don’t tweet as a ‘media lawyer'(‘top’ or otherwise), but as a mere commentator. And I am certainly not a ‘thought leader’ and have never claimed to be. It is a daft term.

I should be grateful if comments on this post don’t use personal abuse. Such sbuse can be upsetting and depressing. I am happy to answer any points about what I said.

(84)(15)
Anonymous

Fair enough. I think that this reflects more on the poor “journalism” at LC rather than any tweets you made. It wouldn’t have killed Katie to contact you directly for a quote.

(10)(3)
David Allen Green

I can see your point, but my tweets should speak for themselves.

(4)(7)
Anonymous

Just goes to show what a bullsh*t news source Legal Cheek is

Make a “story” around reporting someone’s tweets, and get it wrong

Sorry to Mr. Green, whoever you are

(2)(0)
Anonymous

Mr Green is as much a ‘thought leader’ as is Lord Harley.

And at least his Lordship doesn’t use weaselly words to try to justify his ludicrous opinions….

(7)(14)
David Allen Green

Why the personal abuse? If my points are wrong, then they are wrong, regardless of any personal attributes. That is how law – and legal commentary – works. And that is why law is a great subject for discussion, whether in the comments at LC or elsewhere.

But I agree: I am as much a thought leader as Lord Harley, in that neither of us are thought leaders at all.

(29)(5)
Anonymous

David, I wouldn’t take the abuse personally. This site is populated by spiteful 18 year olds with no clue of what the real world is like. My worst nightmare would be to be featured on here.

(16)(0)
Anonymous

“Please don’t abuse me by sharing your negative opinion of me, despite the fact that I will say the same things about Lord Harley”.

I understand you are a giver not a taker but opinions must be voiced or censored equally.

(2)(1)
Willson, LL.B

Deactivated twitter account; sick of puerile abuse, expect better on legal blogs. I am delighted that TM the PM;s powers to pull the trigger are being scrutinised by the Courts, the whole business has ignited an interest in Constitutional Law, a subject that failed to engage me as a 1965/66 Law Undergrad, but which I find most stimulating now aged 70.

(0)(0)
Anonymous

I think the use of rational is a bit strong in tweet 5. The task may be difficult but that is the nature of national governance and international relations, rarely is a task in this field easy if ever, nevertheless nations all the time must do difficult jobs. It might be said the irrational thing would have been not to enact Article 50, the mechanism that is necessary for leaving the Union having asked the people if they wanted to leave the EU and being told they did.

(4)(1)
Anonymous

It’s probably also worth noting that it was irrational to ask the people what they thought in the first place.

(6)(2)
Nick Green

David, instead of ‘thought leader’ we could say, ‘someone who has actually thought about this.’

Or ‘hen’s tooth’. How about ‘hen’s tooth’?

(3)(0)
Anonymous

Fair enough. But the reason given for his hopeless prediction – the government’s supposed irrationality – is a peevish cop out. It can hardly be irrational to use the specific mechanism by which a state disengages from the EU when its people voted for that (I didn’t).

I imagine he means “irrational” in the sense of “doesn’t agree with David Allen Green”.

(11)(10)
David Allen Green

Why the personal put-down?

I men irrational as being not a reasonable and necessary response to available information.

(16)(13)
Anonymous

So using the only legal mechanism to give effect to the decision made by the people in the June 23rd referendum is “irrational.” Ok then.

(13)(4)
David Allen Green

Also you missed there were two reasons given, not just the one you dub a ‘cop-out’. The reason mentioned in the sub-headline is only one. The other is in the tweets at (6). The other is more important.

(4)(4)
David Allen Green

(Sorry for typos. Am typing on phone.

Be, not me (!) in my first comment, mean not men in my second.)

(3)(6)
Anonymous

Dear David

I am Anon at 11.24am. I hadn’t meant to be rude. I apologise if the comment was unnecessarily rough-edged.

But, with respect, your response does bear me out. There are many things a government could do with the available information. Triggering Art 50 is one of them. I cannot see how that is ‘irrational’ (which is a pejorative term in the context, incidentally). You and Mrs May disagree but neither of you is irrational.

As I indicated in my original comment I was and am against our leaving the EU. But the discourse ought to be sensible and temperate. Accusations of irrationality, which by extension apply to Brexit supporters and pragmatic remainers like me, are in my opinion unhelpful.

(13)(1)
Anonymous

Dear Anon at 11.24

Thank you for your further comment.

“Irrational” is not, and was not intended to be pejorative. There is no other one word to describe what I sought to describe (other than “unreasonable”). Had I wanted to be pejorative, I would have used a loaded word like “unhinged” or “out of their minds”.

I am concerned that you responded to the second headline. The main reason for the shift, which this article does not emphasise, is the significant news about the transitional arrangements (to which I link in tweet (6)). That is the genuinely newsworthy thing in this, and the response of some person off Twitter. What I have to say is far less important.

(0)(0)
David Allen Green

Thank you for your further comment.

“Irrational” is not, and was not intended to be pejorative. There is no other one word to describe what I sought to describe (other than “unreasonable”). Had I wanted to be pejorative, I would have used a loaded word like “unhinged” or “out of their minds”.

I am concerned that you responded to the second headline. The main reason for the shift, which this article does not emphasise, is the significant news about the transitional arrangements (to which I link in tweet (6)). That is the genuinely newsworthy thing in this, and the response of some person off Twitter. What I have to say is far less important.

(6)(3)
Appreciator of genuine, reasoned debate

I think it is excellent to have someone in the know how who has clearly shown the general confusion around the whole brexit debate and whether or not it will happen.

If people such as senior academics are potentially changing their views (which is entirely reasonable given the circumstances) then this says a lot about the whole affair.

We need more articles like this on legal cheek (as opposed to the usual US firms hiking salaries).

(8)(1)
Anonymous

I feel quite emotionally ambivalent about Brexit, for various different reasons. However, I do find myself at a loss as to why some people thought that Article 50 would never be triggered. I can understand why your average non-news-reading (wo)man on the street would articulate such wishful thinking, but it had been made more than crystal clear by the Commons, by Cameron, by Juncker, that the referendum result would happen. If, despite all those words, Article 50 weren’t triggered (and of course, I’m not so naive as to think that politicians don’t go back on their word) it would leave so many in this country completely disillusioned, could have led to rioting in some parts of England, etc.

I’ve met quite a few people who thought, like DAG, that Art.50 would never actually be triggered. They also tended to think (although no idea if DAG also thought this) that a Remain result would eventually lead to us being able to continue to modify the EU from the inside. However, I believe that the status quo was only ever what a Remain result would achieve, with ever closer union probably eventually imposed upon the UK and Visegrad nations no matter what. Some people thought that would be disastrous, others thought it wouldn’t be too bad. Guess we’ll never know.

Does anyone have any thoughts on why people seriously thought the government might eventually back away from triggering Article 50? Was Cameron’s doleful shock resignation not enough of a sign that he knew the government had to keep it’s word on ‘Brexit means Brexit’? Furthermore, does anyone actually care, now that it is crystal clear for anyone who still doubted??

(2)(2)
David Allen Green

“I’ve met quite a few people who thought, like DAG, that Art.50 would never actually be triggered. ”

That is never been my view. I have never said never: see (2) in the the tweets quoted above in this article.

I did say that there was a low probability

(5)(11)
Anonymous

Apologies, should have cited that better. I understand you were careful not to use the word ‘never’, but the fact remains that you didn’t think it likely/that it would happen at all. So my question still stands, really. I’m yet to figure out why so many people believed in this unlikelihood.

(3)(1)
Gary Weatherhead

But David, you were pulled up on this very point last night when it was pointed out to you that on the 26th of june, you tweeted (when asked “do you think the UK will leave the EU?”) “No, I think there will be every excuse and delay, and that the Article 50 notification will *never* be sent”.

(11)(1)
David Allen Green

Thank you.

I did not see that tweet last night, sorry. I have a few tweeters on mute, and so I always miss them. I also sometimes get flooded with mentions sometimes, and I miss those tweets too.

You are correct. That was my view at that time on that day – 24 June – which I expressed in reply to a tweet. I had forgotten I had sent it. I do not think I held that view for very long, even to the end of that day. I quickly formed the slightly different view that there was low probability, but I always avoided “never”.

It is not my view now, for reasons I have given. I still think it less likely than likely, but I no longer would say it is low probability.

(7)(7)
Gary Weatherhead

Thanks for responding David. I was also of the view that Article 50 notification wouldn’t be sent and that it was more likely than not that we would remain in the EU. My view on the matter has changed too (-;

(6)(0)
Lyle

What a polite thread. LC. Can we get more people from the common law of the world? India, Australia, Malaysia, etc. Many of these people can speak better English than the English

(2)(1)
AnonEUMouse

DAG is one of the loudest “remoaners” on Twitter. It’s inevitable that most will have to change their views since the world hasn’t ended like they predicted, and in fact, Britain will continue just fine as an independent country.

Oh, and DAG needs a MUCH thicker skin. I can’t believe at how quickly he complains at negative comments. Seriously David, it’s a little weird to see……

(14)(25)
Anonymous

There’s a different between not wanting negative comments, and not wanting abuse. All he asked was for people not to post abuse. He’s perfectly entitled to do that.

(13)(4)
David Allen Green

I am not a “remoaner”. I am neutral on whether UK is a member of EU. I am just fascinated by the mess.

If I am wrong in my commentary then I am happy to accept this; if my views change I will state this.

And on your second comment: it is not easy to read unpleasant personal comments and seek to send a polite and reasoned response to each one. That I am able to do this shows that my skin is fairly thick.

Some people chose to shield their identities whilst writing personal abuse about others. That is their choice. But the great thing about law is that it can be discussed without personal abuse. That is why I like discussing it.

(18)(8)
Willson, LL.B

They just don’t get it; wherher “leaver” or “remainer” if a lawyer, or someone who has worked like myself in regulatory law enforcement, “in accordance with constitutional requirements” raises some interesting legal questions regarding TM the PM’s “royal prerogative” powers. Like DAG I am “fascinated”, and at aged 70 far more engaged with and interested in Constitutional Law than I was as a Law Undergrad in 1965/66. Deactivated twitter, sick of puerile name calling and twitterers who made assumptions about you on the basis of a limited amount of printed words…

(0)(0)
Glugger

To AnonEUmouse, The world hasn’t ended because Brexit hasn’t happened yet. And it won’t end, but in the view of many the world post/Brexit will be a worse place than it is today. DAG offers balance, neutrality and courtesy in the debate, as well as adding sonething to it in the first place.

(12)(8)
Anonymous

So far as i can see there is absolutely no personal abuse on here – only a few folks having some gentle fun at DAG’s expense.

For someone who is happy to incessantly give us all the benefit of his wisdom, it does appear somewhat irrational to have such thin skin.

(11)(6)
Kev744

Excellent analysis though it would also be interesting to analyse all the Tweets in which this absurd man referred to a “wretched book” he was always planning to write. I wonder whether OUP have asked him whether his book on Article 50 will be triggered before the end of the decade

(7)(6)
David Allen Green

The wretched book, about a famous piece of historical litigation, is on hold. I hope to finish it one day, as i think people may find it fun to read about that litigation from a different perspective.

I hope to finish the OUP book this year, as March would appear to be a good date for publication.

(7)(4)
Not Amused

“Why the personal abuse? If my points are wrong, then they are wrong, regardless of any personal attributes. That is how law – and legal commentary – works.”

With respect you aren’t making a legal argument. You were making a political prediction.

At the time you made that political prediction, some people disagreed with you. You have now changed your view. Rather than seeking to silence all debate as ‘abuse’, I would much rather you demonstrated good manners and apologised for being wrong.

It is better to lead by example after all.

(11)(9)
David Allen Green

Hello Not Amused

Thank you for your comment.

My view on Article 50 is legal commentary. The reason why I believe it unlikely to be triggered is for legal reasons: the legal complications of what needs to be done. I have set these out, for example, at JoK: http://jackofkent.com/2016/09/the-many-hurdles-of-brexit-a-short-summary-post/

Either those reason are good or bad, and I am happy to discuss those.

I have no reason to silence debate: indeed I am encouraging it, in these comments and elsewhere. I am responding to opposing views as promptly and fully (and politely) as I can. I think that is the opposite of silencing debate.

There is no need for personal abuse when discussing law. You choose to shield your identity. I do not. regardless of that there is no need for either of us to make personal insults. But as someone who does not shield their identity, I can say they do hurt and they can upset. Of course they do.

I can “apologise for being wrong” if you wish, and I am happy to apologise if that is apt; but when the facts changed (especially about transitional arrangements) my views changed. I was sincere in the views I expressed then, and I am sincere in the ones I express now.

(9)(4)
Not Amused

It isn’t a legal question. You were not saying Article 50 ‘could not’ be triggered. You don’t even use normative terms. You were not advancing a legal case at all.

You said “wouldn’t” and you meant that in your view, the politicians would back track. You believed they would back track possibly because certain tasks involving certain laws would dissuade them. But overall you believed it was, to use common parlance “likely to be too much hassle”. Ultimately what you were doing was making a political prediction.

That prediction is clearly wrong. It probably was wrong at the time – or was at least one which you ought not to have made. I do not consider you have a good grasp of what is or is not politically likely. I don’t blame you for that – it’s not a skill a lawyer needs. Nevertheless I understand some political commentators do apologise when they are wrong.

I suspect you let what you wanted to happen cloud your view of what you believed would then happen. Again, I don’t blame you for that but it is something you should perhaps admit.

(5)(5)
David Allen Green

Thank you again, Not Amused.

The problem with your last point is that I am not fussed if UK stays as a member of EU or not. if UK was not a member of EU I would not want it to be; I would have voted No in 1975; and I have opposed every treaty and treaty amendment since Maastricht.

I do have a soft spot for the Single Market and think Arthur Cockfield is the second most important Tory politician of the 1980s. And I believe freedom of movement to be right in principle. But the EU is fundamentally undemocratic and illiberal, for all its good points.

Fwiw, I have set out my views at http://jackofkent.com/2016/09/waiting-for-brexit-a-note-on-contentions-and-biases/

I am partisan about ECHR, WTO and UN membership. But the EU has never impressed me much.

So if there was a fault, it was not wishful thinking.

(6)(0)
Not Amused

I wanted a free market in services. That ideal didn’t last long.

Course it would have meant the death of every European lawyer and the dominance of the common law. As we know, without state intervention in the market common law trumps civil every time.

Much like I wanted a single European language. Certain things were not to be.

What you should do now is help the government. Write articles telling them how to get us out. Do it quickly. I don’t want to bail out Deutsche Bank.

(4)(2)
Anonymous

“A single European language” – I think you’ll find it’s called ‘globish’, i.e. bastardised English. Thank God we avoided that, I say!

(0)(0)
Anonymous

I think if the EU tried to get the UK to contribute to the Deutsche Bank bail-out I would genuinely die laughing. What a cl*sterf*ck that would be

(0)(0)
Anonymous

Shut up.

Everyone can read your tweets and see you are a blatant remainer. You’re just pretending now in this thread that you have a different view as you have made a fool of yourself and been exposed as a hypersensitive clown.

(0)(0)
CK

Re-evaluating one’s opinion on the basis of new information is an entirely sensible thing to do. (Tweet 6)

David, if you give considered analysis of something whose nuances and complexities may escape those less informed than yourself, and then present your conclusions in a digestible and informative way that helps others to advance their thinking or form their opinions, then you are going to be guilty of Thought Leadership whether you like it or not.

the idea of the referendum and the manner in which it was conducted were largely irrational. The result, in my opinion, was a reflection of much irrational thinking and knee-jerk response.

It would be rational to surmise that having inherited an essentially un-deliverable demand from the mandate (see 19 hurdles), the new government’s rational response would be to delay the enactment of that demand until such time as the favourable conditions to do do could be met. Given that the EU seem reluctant to facilitate that approach, and hold many of the trump cards, such a delay could possibly be ad-infinitim (let’s imagine if a subsequent election were won on a ‘not going to exit the EU’ ticket, for example). It would be sensible to anticipate such a stratagem from a rational government.

The transitional payments approach, and the wholesale adoption of EU law approach, would seem such thin gruel of an enactment plan, that I’d feel wholly happy to append ‘batshit crazy’ to the proposal to trigger Article 50 in March (or indeed in 2017) on their basis. However, that is what they seem intent on doing and so the revision of your view on both the likelihood of it happening, and their level of headedness, both seem sensible to the point of not being news.

(11)(0)
Anonymous

“I haven’t got a thin skin” he protested, “I haven’t, I haven’t, I haven’t….!!”

Is DAG the Violet Elizabeth Bott of The Twitterers….?

(4)(7)
David Allen Green

Sadly I have a different speech impediment to her’s…

A perfect voice for tweeting.

(6)(1)
Anonymous

Anyone who uses the term “Remoaner” unironically rather surrenders the right to have their opinion taken seriously on anything except the use of stupid wordplay. If you can’t explain why you think someone’s opinions about the biggest political decision of a generation is wrong without resorting to a petty insult then you should perhaps not talk at all.

(7)(2)
David Allen Green

Now the comments have died down, thank you for reading and discussing the points in the tweets quoted.

And, just so you all know, the “Anonymous” comments are, of course, mainly me arguing with myself.

(14)(2)
Pete

DAG is among the most informed, articulate and thought provoking people on Twitter. What a shame that too many people used this thread to take a cheap swipe rather than participate in reasoned debate. That he paid you the courtesy of engaging is to his credit.

(9)(1)
LingliveBrexit

Never have I heard such a load of wordy contrived bollocks. Oh dear. Out means out. It’s not difficult or hard to achieve, but I guess all you intelligent men will make a meal of it, as usual. Heaven help us.

(2)(4)
Fedupwithprevarication

Couldn’t agree more LongLiveBrexit. This is why the world is in such a bloody mess. Too many men either on the gravy train or loving the sound of their own voices. Shut up and get on with it. Just repeal 1972 act & we’re out. Simples.

(2)(3)
hampshirelawyer

The decision is going to be a political one. As DAG knows (cf The Something Must Be Done Act) political decisions are not always rational.

Some might suggest that the pledge to call a referendum was political but not rational.

(1)(0)
Anonymous

Ah if only Article 50 could be triggered as quickly and easily as this solicitor!

(0)(0)

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