It’s a Trap I Tell you, a Trap!

Ang Ryman, Going-Postal.Net

A view from the North

I understand that a group of friends meets in the land of the Luddites to discuss matters pertaining to philosophy and politics. They meet as friends and depart as friends and have been doing so since they met in the summer of 2015. What occurs in between the greeting and the departing is open discourse – with no restrictions – on a given theme. Their rules are simple – Be honest, be courteous. These friends refer to themselves as ‘Truth Seekers’. One such meeting posed the following question:

“When the UK votes to leave the EU, the UK Government should notify the European Council of its intention to secede from the Union, and negotiate terms of withdrawal in accordance with Article 50 of the Lisbon Treaty.  Right?……”.

One friend, took up the challenge and provided his answer to his fellow truth seekers. He has been kind enough to provide a text copy of his response to me and to Going Postal readers, for scrutiny and consideration, and I extend my heartfelt thanks to him.

The question is based on a premise – that the peoples of the UK vote to LEAVE the EU. Comments will be welcomed, as this is what truth seeking requires, but it should also be borne in mind that no-one reads the comments. Right?

[Note to reader. A list of acronyms and other information on case law is provided in the Appendix at the foot of this posting.]

For convenience, here is TEU Article 50:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

So Postaliers, the question that has been posed before (most often in 2010):   Do you agree?

Response

Wrong.  Article 50 is a trap.

After winning the referendum, what does the UK do next to secure an orderly exit from the EU?

This assessment is not exhaustive but deals with the disadvantages of invoking Article 50 and of remaining in the EEA.  Many other written exit procedures exist, though there is seldom agreement.  There are no simple answers, but equally no need to over-complicate.  The four basic issues are:
 

  1. What exit mechanism should be used?
  2. What about trade with the EU?
  3. What should be done about the EU Regulations and Directives that govern us?
  4. What do we do about the rest of the world?

The European Communities Act 1972 [ECA], and the “Metric Martyrs” Appeal (Laws et al) 2002

The ECA was passed in 1972 by Ted Heath’s Conservative government.  In January 1973 the UK became part of the EEC, later EC, now the EU.  It is the ECA which enables EU laws to have legal effect in the UK and, indeed, supersede domestic UK law.  The exact basis of that legality has been defined in the “Metric Martyrs” Appeal Court judgement by Lord Justice Laws and Mr Justice Lane in 2002, see Resources.  The importance of this judgement can hardly be over-stated.
 

The UK is part of the EU and is a member of the EEA

The UK is currently part of the EU and is a member of the EEA, which is in effect the EU Single Market.  Iceland, Liechtenstein and Norway are also members of the EEA, but are not part of the EU.  Switzerland is in neither, but participates in the Single Market as a result of bi-lateral agreements.  All four are members of EFTA which we left upon becoming part of the EEC in 1973.
 

Trading with the EU

It is often assumed, by both Leave and Remain campaigners, that the UK will remain in the EEA (the “Norway option”) after leaving the EU.  If so we would, like Norway, still have to accept free movement of people and all other EU Single Market laws.  The Remain supporters aim to trip us up with that fact.  Actually it is not all bad: Norway implemented only about 9% of the 52,183 EU laws enforced between 2000 and 2013 (EFTA figures).  So Norway is not swamped, as the BBC and the Remain supporters claim, by so-called “fax diplomacy” from Brussels.

Nevertheless, there seems little point in the UK leaving the EU only to remain in the EEA, as Norway has done, still partly under the EU’s thumb.  Free trade is the better option.  Except for special cases such as Ukraine, Croatia and Turkey, almost every nation on Earth trades with the EU without being part of it, or even being a member of the EEA.  So can we.  The EU has free trade agreements with countries ranging from Algeria to Zimbabwe.  So can we.  It is in the EU’s own interests because they sell more to us than we sell them.  It is worth bearing in mind that only about 10% of UK GDP consists of exports to the EU, so about 90% of UK GDP is unaffected by leaving.  In any case both the EU and the UK must trade under agreed WTO rules, as defined by the MFN principle of equality of treatment with all trade partners, which will help us to avoid a trade war.

Our forebears 400 years ago traded globally, so why is it supposed that we are incapable of doing the same now?  Out of the EU and EEA we can also reclaim our seat on the WTO and other world organisations instead of being sidelined by the EU.  No doubt we will have to mend a few broken bridges, especially with members of the Commonwealth whom we have neglected over the last 40 years.  leaving the EU is not a leap into the dark as some feeble politicians have said because we still know what being an independent nation entails.
 

EU Directives and Regulations

As a consequence of being part of the EU, the UK is subject to EU laws, which have taken over a large part of running the country.  The UK cannot suddenly do without these laws.  EU Directives are written into domestic UK law, and thus will remain on the statute book even after exit.  So Directives are not a problem, and can be revised or repealed over time by the UK Parliament.

On the other hand EU Regulations are not transposed into UK law but ‘reside’ in Brussels.  Prior to exit, work (some commentators say an enormous amount of work) will be required to enact duplicate, but UK based, legislation to replace the EU Regulations that currently govern institutions that we still need to run a modern state.  My proposal for this problem is dealt with later.
 

The Alternative Exit Mechanisms (two broad categories)

The Article 50 route envisages the UK government announcing our intention to leave the EU, and invoking Article 50 of the TEU.  Thereupon negotiations would be conducted as set out in Article 50.  Some of the principal Article 50 route proponents appear to support us leaving the EU in this way but remaining as members of the EEA.  The EEA issue is discussed above.

The UK led exit route rejects Article 50 since it makes the UK a supplicant to the EU, where the process, outcome and timetable is under EU control.  The UK led route retains the position of equal partner in the negotiation process culminating in the repeal of the UK’s ECA in our own Parliament, under our own control, timetabled to suit us, so that we leave both the EU and the EEA.
 

Why is the TEU Article 50 exit clause a trap?

Article 50 proponents have argued that negotiations to remain in the EU, but repatriate powers, requires an IGC, followed by a new treaty ratified by all 28 member states, which they deem is near impossible.  They have also made claims that it is illegal for the UK to attempt to exit the EU by repealing the ECA, or indeed to abrogate any treaty unless via an exit clause, if the treaty has one.  Further they claim that invoking Article 50 must automatically lead to a new EU treaty.

It may suit the EU elite to keep us in the EU, after all we give them a fair amount of cash every year.  The EU would also lose prestige and power over some of the other 27 if we left.  Hence the EU may be motivated to bend, or even break, their own rules, just as was done to prop up the euro.  So in fact some repatriation of powers, without an IGC or a new treaty, may be made possible.  No doubt any concessions by the EU will be dressed up to look more significant than they really are.

If Cameron gets his piece of paper from the EU and wins the referendum we will be locked in the EU for another generation (or until the EU collapses – not an impossibility in current circumstances).  An immense amount of effort and money will be thrown at keeping us shackled to the EU by the UK establishment and probably by the EU itself.

The “Metric Martyrs” Appeal Court judgement (Laws et al, see Resources) makes it clear that EU Directives and Regulations only supersede UK (domestic, non-constitutional) laws because the ECA gives all EU laws the status of constitutional law within the UK.  That judgement still stands confirming that the ECA is the key by which the UK is locked into the EU.  It follows that the ECA is also the key to unlock ourselves from the EU.  Repeal of the ECA, something only the UK Parliament can do, will make EU law inapplicable within the UK.  So the ECA must be repealed even if the Article 50 route is taken, which Article 50 supporters seem strangely reluctant to admit.

The UK, and almost every state in the world, is signed up to the Vienna Convention 1969 (see Resources).  All the way through Vienna the powers (or sovereignty) of States are explicit or implicit.  Such powers would be meaningless if, once signed, a treaty could never be abrogated.  Times, politics and regimes change so treaties are not for all time and states do abrogate them.  Recent examples include: when the USA abrogated the ABM ballistic missile treaty in 2001; and when the Czechs exited the Warsaw Pact in 1991.

Vienna offers an alternative to the use of Article 50 to exit the EU since withdrawal may take place “At any time by consent of all the parties after consultation with the other contracting States.” (Article 54).  Moreover in Vienna Article 56 1b: “a right of denunciation or withdrawal may be implied by the nature of the treaty.”  The nature of all treaties signed by the UK is on the basis that “No parliament may bind its successor” – that is part of the UK’s sovereignty.  So we must abide by a treaty whilst it is force, but we do retain the right to abrogate any treaty.

In general there is no prohibition in the Vienna Convention, or elsewhere, that actually defines an international refusal to recognise abrogation of a treaty.  Even an EU appeal to the International Court of Justice (ICJ) probably would not work because the ICJ tends not to get involved in politically controversial issues.  On occasions when it has done so, it has been ignored.  And after all, what is the EU going to do – invade us?  No: sensible pragmatism will rule the day.

As for a new EU treaty being automatic upon invoking Article 50, that is a red herring.  A state doesn’t require a treaty to not belong to the EU.  The EU is not that omnipotent.  A new treaty with the EU would only be a necessary outcome if the UK stayed within the EU’s jurisdiction in some way but under radically revised conditions such as remaining a member of the EEA.

Invoking Article 50 means the UK becomes a supplicant to the EU.  It follows that the EU will carefully engineer such exit conditions that achieve their desired outcome, not ours; and they will exact a price – they won’t give us anything for free.  Indeed the EU’s terms may be so draconian, politically or economically, that we are forced to remain in.  The EU may also prevaricate, delaying the point of exit beyond the (extendable) two year time limit written into Article 50.  Actually the EU elite may want to get rid of us – but they will exact a price for that too.

This is why the Article 50 route is a trap for the unwary.  The UK must retain control of the negotiations by an announced unconditional, unilateral withdrawal, and by repealing the ECA.  But what happens if the EU ignores our wishes and acts to invoke Article 50 anyway?  That is why I am coming round to the view that the UK must repeal the ECA within days of the referendum win.  That in turn exposes the problem of immediate loss of needed legislation (the Regulations).

I believe that problem can be overcome by replacing the ECA with a similar act which, instead of allowing a continuing inflow of EU law into the UK under the control of EU institutions, allows only the use by the UK of the Regulations already in existence up to a cut-off date, such as the date of the referendum.  In other words the new act would enable the EU’s Regulations to be “patriated”, for a limited time period only, but explicitly as ordinary UK statute.  Thus domestic UK law would again be dominant within the UK, the patriated Regulations being repealed or modified as time permits over a specified period of say 4 years after we have left the EU and EEA.
 

Ang Ryman ©
 

Appendix

1. Acronyms

    EU    European Union
    EEA    European Economic Area
    EFTA    European Free Trade Association
    EEC    European Economic Community
    EC    European Community
    TEU    Treaty on European Union
    TFEU    Treaty on the Functioning of the European Union
    ECA    European Communities Act (UK parliament 1972, in force Jan 1973)
    WTO    World Trade Organisation (global membership – independent of the UN)
    MFN    Most Favoured Nation (the WTO principle of non-discrimination in trade)

2.  TEU (ex Lisbon Treaty) Article 50

(Note: Article 50 is known as the exit clause of the TEU.  It originated in the rejected Constitutional Treaty, and then became Article 50 of the Lisbon Treaty, and then Article 50 TEU when Lisbon was folded into the TEU and the TFEU, effective 2009.  The text of Article 50 follows below.)

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

3.  “Metric Martyrs” Appeal Court Judgement (EWHC 195)  18th February 2002.  Before: Lord Justice Laws and Mr Justice Crane  (Thoburn v Sunderland City Council)
(Note: bold italics below are mine)

68    On this part of the case, then, I would reject Miss Sharpston’s submissions.  At the same time I would recognise for reasons I have given that the common law has in effect stipulated that the principal executive measures of the ECA may only be repealed in the United Kingdom by specific provision, and not impliedly.  It might be suggested that it matters little whether that result is given by the law of the EU (as Miss Sharpston submits) or by the law of England untouched by Community law (as I would hold).  But the difference is vital to a proper understanding of the relationship between EU and domestic law.

69    In my judgment (as will by now be clear) the correct analysis of that relationship involves and requires these following four propositions.  (1) All the specific rights and obligations which EU law creates are by the ECA incorporated into our domestic law and rank supreme: that is, anything in our substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency.  This is true even where the inconsistent municipal provision is contained in primary legislation.  (2) The ECA is a constitutional statute: that is, it cannot be impliedly repealed.  (3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes.  (4) The fundamental legal basis of the United Kingdom’s relationship with the EU rests with the domestic, not the European, legal powers.  In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the ECA were sufficient to incorporate the measure and give it overriding effect in domestic law.  But that is very far from this case.

70    I consider that the balance struck by these four propositions gives full weight both to the proper supremacy of Community law and to the proper supremacy of the United Kingdom Parliament.  By the former, I mean the supremacy of substantive Community law.  By the latter, I mean the supremacy of the legal foundation within which those substantive provisions enjoy their primacy.  The former is guaranteed by propositions (1) and (2).  The latter is guaranteed by propositions (3) and (4).  If this balance is understood, it will be seen that these two supremacies are in harmony, and not in conflict.  Mr Shrimpton’s argument is wrong because it would undermine the first supremacy; Miss Sharpston’s because it would undermine the second.

3.  Vienna Convention on the law of treaties (with annex).
Concluded at Vienna on 23 May 1969.  (often cited as the “Treaty of Treaties”)

SECTION 3. TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

Article 54. TERMINATION OF OR WITHDRAWAL FROM A TREATY
UNDER ITS PROVISIONS OR BY CONSENT OF THE PARTIES
The termination of a treaty or the withdrawal of a party may take place:
(a) In conformity with the provisions of the treaty; or
(b) At any time by consent of all the parties after consultation with the other contracting States.

Article 56. DENUNCIATION OF OR WITHDRAWAL FROM A TREATY CONTAINING NO PROVISION REGARDING TERMINATION, DENUNCIATION OR WITHDRAWAL
1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
(a) It is established that the parties intended to admit the possibility of denunciation or withdrawal; or
(b) A right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.

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