“Trump’s call for the UK to sue the EU over Brexit was a crudely-made political grenade, thrown into the media to cause smoke, confusion, and damage.”

Last month Donald Trump told UK Prime Minister Theresa May that, rather than negotiating Britain’s Brexit departure from the European Union, she should sue the EU.

In separate analyses for the Birmingham Perspective, Professors Anthony Arnull and Scott Lucas offer the legal and political perspectives on why that is a bad “Art of the Deal” — and some far-from-friendly motives behind Trump’s suggestion.

Anthony Arnull: “Scorched Earth” Folly

“He told me I should sue the EU.”

This was the “tough” advice Prime Minister Theresa May said she had been given by President Donald Trump during his visit.

Coming from the author of The Art of the Deal, the President’s advice must have given the Prime Minister pause for thought. How might her advisers have reassured her that she was right to reject it?

First, membership of the EU is not compulsory. It is something that is open to any European State, provided it meets certain conditions. Once a State has joined the EU, it is entitled to withdraw under the famous Article 50 of the Treaty on European Union. Exercising its national sovereignty, the UK joined in 1973 (a decision endorsed by referendum in 1975) and to trigger Article 50 in March 2017. Neither step was forced on the UK by the EU or anyone else.

Secondly, the UK is still an EU Member State. That is because the withdrawal process set out in Article 50 has not yet run its course. The UK will cease to be a Member State in March 2019, when the negotiating period laid down in Article 50 runs out. That period can be extended, but the Government has made it clear it would not agree to this.

The second of the Treaties on which the EU is based, provides several legal remedies that could be used by the UK to challenge aspects of the Brexit process and the way it is unfolding. However, they all involve proceedings before the European Court of Justice, whose jurisdiction it wishes to escape.

The first provision concerns the way the EU negotiates and concludes international agreements. Article 50 says that the withdrawal agreement must be negotiated in the same way. The provision concerned forms part of a longer article which also says that a Member State may ask the Court for an opinion on the legality of a proposed agreement. If the Court gives a negative opinion, the agreement cannot enter into force unless it or the Treaties are amended.

Article 50 does not refer expressly to the provision concerning the Court, but its connection with another part of the same article may mean that it covers the withdrawal agreement. The purpose is to avoid the inconvenience of implementing an international agreement only to discover later that it is unlawful. That rationale applies equally to the withdrawal agreement.

The second provision permits a Member State to bring proceedings before the Court against another Member State if it thinks that State has broken a Treaty obligation. So action under this provision could be taken by the UK against any or all of the EU27 if Britain thought their conduct in the negotiations was incompatible with the Treaties.

Another provision allows Member States to challenge the legality of certain measures taken by the EU. If the challenge succeeds, the measure in question is quashed by the Court. This might have been used to challenge the negotiating guidelines issued by the European Council under Article 50. It might also be used if the UK sought to withdraw its Article 50 notification and the European Council refused to allow it to do so.

A general provision prevents Member States from submitting disputes ‘concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.’ This means that, while the UK remains a member, it is limited to the remedies for which the EU Treaties provide.

It is not only the Member States who are able to pursue legal claims before the Court. Private litigants may also do so. Two such cases were heard in July 2017. Their outcome might clarify some of the consequences of Brexit.

The UK was surely right to seek to withdraw from the EU, in accordance with Article 50, rather than seek a more confrontational way out. A major factor in that decision was the UK’s wish to continue to be seen as a reliable partner, particularly important when seeking trade deals with other countries around the world. The UK also aspires to have continuing friendly relations with the EU. These would be very difficult to achieve if it had resorted to a scorched earth policy of departure.

Scott Lucas: Trump’s Plot v. EU — and UK Prime Minister

There’s a good reason why UK Prime Minister Theresa May, wore a pained grimace when Donald Trump said at their joint press conference at her residence Chequers that he had given her some special advice on how to deal with the European Union.

And it’s the same reason why a more composed May turned the pressure back on Trump two days later, when she revealed that the advice was for Britain to sue the EU over Brexit.

The reason is that, as Anthony Arnull notes, May realised that the “advice” would have been tantamount to collapsing the talks, almost certainly producing a “No Deal” Brexit. Within the negotiations, the step is legal nonsense, since such action is for a member remaining within the organisation, not for one leaving it. Politically, it is just as whimsical — what exactly would the UK be suing for? — except for slapping Brussels in the face and walking away.

But May knew something else that she didn’t reveal on that Sunday following Trump’s visit. The Prime Minister knew that Trump’s declaration was part of a game, one in which he and some of his advisors are playing for a “No Deal” Brexit — even if that means replacing May in their attempt to weaken and possibly break up the European Union.

Trump’s “advice” was part of an extraordinary attack on May on the eve of their meeting. In an interview with The Sun newspaper, he declared that he would have been far tougher than she, walking away from the negotiations. And, as Trump portrayed May as weak, he praised Boris Johnson — the hard Brexiteer who had resigned as Foreign Secretary three days earlier — as a “great Prime Minister” because “he’s got what it takes”.

That interview in turn was part of a wider plan. While Trump was at the NATO summit — trashing Germany and deriding other members with the falsehood that they ‘owe’ money to the US — and then meeting May and the Queen, his former White House chief strategist Steve Bannon was working out of a London operations room. Still allied with Trump, Bannon was meeting right-wing politicians and media outlets, talking about the EU’s depravity and the need for change in the leadership of European states.

Among those meeting with Bannon were representatives of Boris Johnson. The hard-right strategist also reportedly spoke with the camps of hard Brexiteers, Jacob Rees-Mogg and Michael Gove, as well with Nigel Farage, the former leader of the UK Independence Party — and the British politician closest to Trump.

By Sunday night, as Trump was heading to Finland, Bannon was appearing on Farage’s radio program. The American was blunt in his call for a hard-right rising:

“You’re going to have to fight to take your country back, every day. Whether it’s Italy, France, England, or the United States. If we quit, they [the ’globalist elite’] are going to be in control….This is a war.”

Donald Trump’s call for the UK to sue the EU was not a finely-tuned legal strategy. It was a crudely-made political grenade, thrown into the media to cause smoke, confusion, and damage.

For as Steve Bannon said in 2016, “I want to bring everything crashing down, and destroy all of today’s establishment.” Theresa May, as well as the EU, stand in his way.