Sunday, 27 January 2013
Article 50, 2 Years And EU Law (Part 1)
If nothing else the prisoners’ voting saga at least demonstrates that if the UK government is willing, it can delay decisions and rulings from European institutions for many years – we’re now in the eighth year of ECHR’s ruling without implementation.
With this in mind, I wish to follow on from my previous pieceregarding invoking Article 50. Should we do this, there would be a two year notice period (or earlier if there’s an agreement) where the UK is still an EU member and so subject to its laws until we leave. That exit is not immediate leaves open to some the accusation that the EU will, apparently in a hissy fit, force the UK to adopt all sorts of onerous laws with a specific view of damaging us. It is an accusation that plays on the emotions rather than one that is borne out by facts.
In essence the assertion has many fallacies, but two in particular are very significant - ones which pose insurmountable hurdles for the EU to overcome even if they wanted to as they both are contradictory to the defining characteristics of its existence. I will deal with each problem in two separate posts.
The first problem covered here is, ironically, answered by David Cameron’s recent EU speech. As is well documented, not perhaps fully acknowledged by the media, repatriation of powers from the EU to the UK is not possible. There is no mechanism within EU treaties to do it and as Van Rompuy says it would lead to the end of the defining principles of the Single Market:
It’s the same reason that UK minimum pricing of alcohol is illegalunder EU law as it discriminates against similar cheaper alcoholic products from elsewhere in the EU, in direct conflict with the principle of free movement of goods.
So by logical conclusion what applies to the UK also applies to EU institutions; they are duty bound by EU treaties for EU laws to apply equally and it is in their interests to do so. There is no legal mechanism for the EU to deliberately tailor onerous laws to target a specific country without it applying to the other members as well, in the same way a particular country cannot tailor the Single Market for their own ends. This is borne out again by the nature of the two main forms of EU law; Regulations and Directives.
EU Regulations are defined under Article 288 of Lisbon, described as (my emphasis);
So it is clear, even if the EU wished it, deliberately forcing upon us, in the event of invoking Article 50, onerous laws for the sake of it out of spite is very limited under current EU treaties. They would have to find a reason that was completely unique to this country so that any law passed would not affect the other 26 Member States as a consequence.
In the unlikely event they discover one, they will hit upon another very serious problem - timescale - and it is that I will address in part 2.
With this in mind, I wish to follow on from my previous pieceregarding invoking Article 50. Should we do this, there would be a two year notice period (or earlier if there’s an agreement) where the UK is still an EU member and so subject to its laws until we leave. That exit is not immediate leaves open to some the accusation that the EU will, apparently in a hissy fit, force the UK to adopt all sorts of onerous laws with a specific view of damaging us. It is an accusation that plays on the emotions rather than one that is borne out by facts.
In essence the assertion has many fallacies, but two in particular are very significant - ones which pose insurmountable hurdles for the EU to overcome even if they wanted to as they both are contradictory to the defining characteristics of its existence. I will deal with each problem in two separate posts.
The first problem covered here is, ironically, answered by David Cameron’s recent EU speech. As is well documented, not perhaps fully acknowledged by the media, repatriation of powers from the EU to the UK is not possible. There is no mechanism within EU treaties to do it and as Van Rompuy says it would lead to the end of the defining principles of the Single Market:
"If every member state were able to cherry-pick those parts of existing policies that they most like, and opt out of those that they least like, the union in general, and the single market in particular, would soon unravel,"In this he is not wrong, even if he is in everything else. The fundamental principles of the single market according to the EU are laid out here:
The cornerstones of the single market are often said to be the “four freedoms” – the free movement of people, goods, services and capital. These freedoms are enshrined in the EC Treaty and form the basis of the single market framework.Naturally the only way this can be established successfully is to implement laws that apply to every member state the same – which is precisely why the Single Market is used as a Trojan horse to facilitate ever closer political and economic union. To ensure the Single Market runs according to the same set of rules, it needs a body of a bureaucratic makeup to impose those rules, and one which is aloof from its member states. That is the EU's raison d'etat - thus to behave contrary to that would be in breach of the fundamental discrimination principles of the Treaties as well as its intentions. An example of those principles are laid out clearly by Article 34 onwards of the Lisbon Treaty (page 56).
It’s the same reason that UK minimum pricing of alcohol is illegalunder EU law as it discriminates against similar cheaper alcoholic products from elsewhere in the EU, in direct conflict with the principle of free movement of goods.
So by logical conclusion what applies to the UK also applies to EU institutions; they are duty bound by EU treaties for EU laws to apply equally and it is in their interests to do so. There is no legal mechanism for the EU to deliberately tailor onerous laws to target a specific country without it applying to the other members as well, in the same way a particular country cannot tailor the Single Market for their own ends. This is borne out again by the nature of the two main forms of EU law; Regulations and Directives.
EU Regulations are defined under Article 288 of Lisbon, described as (my emphasis);
“…binding in its entirety and directly applicable in all Member States”.Clearly then Regulations cannot be used as a targeting exercise. Therefore we come onto Directives, the second major form of EU law, which are also defined in Article 288 (my emphasis);
A directive shall be binding, as to the result to be achieved,upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.At first glance there appears to be some scope to address each country directly - a form of targeting. However not so. It merely allows flexibility to account for the differences in the makeup of countries such as for geographic reasons. So for example as an island we have to implement a directive dealing with coastal pollution while conversely, and for obvious reasons, landlocked Austria does not. But the Directive still has to have a general effect, as outlined here:
Furthermore, a directive...is a text with general application to all the Member States.Discrimination is prohibited on the grounds of nationality, under EU law, in accordance with Article 7 of the Treaty of Rome. Accusations of discrimination on grounds of nationality is one of the reasons for the ongoing legal battles with Iceland over Icesave.
So it is clear, even if the EU wished it, deliberately forcing upon us, in the event of invoking Article 50, onerous laws for the sake of it out of spite is very limited under current EU treaties. They would have to find a reason that was completely unique to this country so that any law passed would not affect the other 26 Member States as a consequence.
In the unlikely event they discover one, they will hit upon another very serious problem - timescale - and it is that I will address in part 2.
Posted by The Boiling Frog at 1/27/2013 03:36:00 pm
Labels: Alcohol Pricing, Article 50, EU, Lisbon Treaty
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About The Boiling Frog
A blog about the anti-democratic and pernicious European Union with particular emphasis on its impact here in the UK. Also I'll cover British politics and occasionally chuck some whimsical nonsense in as well.
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EU quotes
"The EU is the old Soviet Union dressed in Western clothes"
(President Gorbachev)
“I have lived in your future ….and it doesn’t work”(Russian dissident Vladimir Bukovsky on the EU)
"Determined to lay the foundations of an ever closer union among the peoples of Europe"(Treaty of Rome 1957)
"This Treaty marks a new stage in the process of creating an ever closer union..."
(Maastricht Treaty 1992)
"Now we've signed it - we had better read it"
(Douglas Hurd, former Foreign Secretary on the Maastricht Treaty)
The supremacy of Community Law when in conflict with national law is the logical consequence of the federal concept of the Community"
(H P Ipsen, 1964 - 9 years before we joined)
"[Norway] held a referendum [on the EU] that went the wrong way"(Douglas Hurd, former Foreign Secretary on the Maastricht Treaty)
"The Tories have been indulging in their usual double talk. When they go to Brussels they show the greatest enthusiasm for political union. When they speak in the House of Commons they are most anxious to aver that there is no commitment whatever to any political union."(Labour MP Hugh Gaitskell, October 1962)
"The Constitution is the capstone of a European Federal State."
(Guy Verhofstadt, Belgian Prime Minister)
'If it's a Yes we will say "on we go", and if it's a No we will say "we continue".'
(Jean-Claude Juncker, President of the European Council)
“The substance of the Constitution is preserved. That is a fact.”
(German Chancellor Angela Merkel on the Lisbon Treaty)
"I have read some of [the Lisbon Treaty] but not all of it."
(Caroline Flint, former Minister for Europe)
“They must go on voting until they get it right.”
(Jose Manuel Barroso, President of the European Commission)
"If you go through all the structures and features of this emerging European monster you will notice that it more and more resembles the Soviet Union."
(Russian dissident Vladimir Bukovsky)
"The European Union is a state under construction."
(Elmar Brok, Chairman of the European Parliament’s Committee on Foreign Affairs)
“I have never understood why public opinion about European ideas should be taken into account at all,”
(French PM Raymond Barre)
“I believe neither the French nor the Dutch really rejected the constitutional treaty.”
(Jean-Claude Juncker, Prime Minister of Luxembourg)
“Let’s be clear about this. The rejection of the constitution was a mistake that will have to be corrected.”
(Valéry Giscard d’Estaing)
“The 'no' votes were a demand for more Europe, not less.”
(Romano Prodi, former President of the European Commission)
"I don’t want an ‘in or out’ referendum because I don’t think out is in Britain’s interests.”
(David Cameron, who won't hold a referendum because he thinks he'll lose)
"...there are constitutional innovations."
(Mr Patrick Jenkin, former Tory MP during 2nd reading of European Communities Bill 1972)
"No government dependent on a democratic vote could possibly agree in advance to the sacrifices which any adequate plan for European Union must involve. The people must be led slowly and unconsciously into the abandonment of their traditional economic defences, not asked…"(Peter Thorneycroft, former Tory MP)
"[Bailouts are] expressly forbidden in the treaties by the famous no-bailout clause. De facto, we have changed the treaty."
(French Europe minister Pierre Lelouche)
"The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights... against which a subsequent act incompatible with the concept of the Community cannot prevail"
(ECJ Case 6/64)
"[The EU Constitution represents] a visible move in only one direction...from intergovernmentalism to supranationalism...and this should be explained to the people of Europe"
(Czech Republic President Vaclav Klaus)
"European integration isfortunately a train moving too fast for anyone to stop it."
(Vaclav Havel, Czech Politician)
“Millions of people in this country will feel as I do, that legislation passed in this way, with no consent, cannot command the assent of the country and would lack moral and constitutional validity”.
(Douglas Jay MP during 2nd reading of European Communities Bill 1972)
"It is an illusion to think that [EU] states can hold on to their autonomy."(Hans Tietmeyer, head of the Bundesbank 1991)
"...within ten years 80% of our economic legislation, perhaps even fiscal and social as well’ would come from the EU."
(Jacques Delors, President of EU Commission 1988)
"...we must now face the difficult task of moving towards a single economy, a single political unity."
(Romano Prodi, President of EU Commission 1999)
"The day of the nation state is over."
(Roman Herzog, German president, 1996)
"The European system of supranationality comes at the cost of democracy."
(Lord Leach of Fairford)
"A European currency will lead to member nations transferring their sovereignty over financial and wage policy as well as monetary affairs."
(Hans Tietmeyer, head of the Bundesbank, 1991)
"The single currency is the greatest abandonment of sovereignty since the foundation of the European Community: the decision is of an essentially political nature"(Felipe Gonzalez, a Spanish former PM, 1998)
"The [EU] Council of Ministers will have far more power over the budgets of member states than the federal government in the United States has over the budget of Texas."(Jean-Claude Trichet, current head of the European Central Bank)
"One must never forget that monetary union, which the two of us were the first to propose more than a decade ago, is ultimately a political project. It aims to give a new impulse to the historic movement toward union of the European states"(Giscard d’Estaing, who drafted the EU Constitution 1997)
"The process of monetary union goes hand in hand, must go hand in hand, with political integration and ultimately political union. EMU [economic and monetary union] is, and always was meant to be, a stepping stone on the way to a united Europe"
(Wim Duisenberg, first president of the EU Central Bank)
"I like the English style of life. I feel more at home here in London"
(Tintin creator, Belgian born Herge)
"We are not forming coalitions between States, but union among people"(Jean Monnet 'Father of Europe')
"The sovereign nations of the past can no longer solve the problems of the present: they cannot ensure their own progress or control their own future. And the Community itself is only a stage on the way to the organised world of tomorrow."(Jean Monnet 'Father of Europe')
“There is no question of Britain losing essential national sovereignty”
(Ted Heath)
But...
(President Gorbachev)
“I have lived in your future ….and it doesn’t work”(Russian dissident Vladimir Bukovsky on the EU)
"Determined to lay the foundations of an ever closer union among the peoples of Europe"(Treaty of Rome 1957)
"This Treaty marks a new stage in the process of creating an ever closer union..."
(Maastricht Treaty 1992)
"Now we've signed it - we had better read it"
(Douglas Hurd, former Foreign Secretary on the Maastricht Treaty)
The supremacy of Community Law when in conflict with national law is the logical consequence of the federal concept of the Community"
(H P Ipsen, 1964 - 9 years before we joined)
"[Norway] held a referendum [on the EU] that went the wrong way"(Douglas Hurd, former Foreign Secretary on the Maastricht Treaty)
"The Tories have been indulging in their usual double talk. When they go to Brussels they show the greatest enthusiasm for political union. When they speak in the House of Commons they are most anxious to aver that there is no commitment whatever to any political union."(Labour MP Hugh Gaitskell, October 1962)
"The Constitution is the capstone of a European Federal State."
(Guy Verhofstadt, Belgian Prime Minister)
'If it's a Yes we will say "on we go", and if it's a No we will say "we continue".'
(Jean-Claude Juncker, President of the European Council)
“The substance of the Constitution is preserved. That is a fact.”
(German Chancellor Angela Merkel on the Lisbon Treaty)
"I have read some of [the Lisbon Treaty] but not all of it."
(Caroline Flint, former Minister for Europe)
“They must go on voting until they get it right.”
(Jose Manuel Barroso, President of the European Commission)
"If you go through all the structures and features of this emerging European monster you will notice that it more and more resembles the Soviet Union."
(Russian dissident Vladimir Bukovsky)
"The European Union is a state under construction."
(Elmar Brok, Chairman of the European Parliament’s Committee on Foreign Affairs)
“I have never understood why public opinion about European ideas should be taken into account at all,”
(French PM Raymond Barre)
“I believe neither the French nor the Dutch really rejected the constitutional treaty.”
(Jean-Claude Juncker, Prime Minister of Luxembourg)
“Let’s be clear about this. The rejection of the constitution was a mistake that will have to be corrected.”
(Valéry Giscard d’Estaing)
“The 'no' votes were a demand for more Europe, not less.”
(Romano Prodi, former President of the European Commission)
"I don’t want an ‘in or out’ referendum because I don’t think out is in Britain’s interests.”
(David Cameron, who won't hold a referendum because he thinks he'll lose)
"...there are constitutional innovations."
(Mr Patrick Jenkin, former Tory MP during 2nd reading of European Communities Bill 1972)
"No government dependent on a democratic vote could possibly agree in advance to the sacrifices which any adequate plan for European Union must involve. The people must be led slowly and unconsciously into the abandonment of their traditional economic defences, not asked…"(Peter Thorneycroft, former Tory MP)
"[Bailouts are] expressly forbidden in the treaties by the famous no-bailout clause. De facto, we have changed the treaty."
(French Europe minister Pierre Lelouche)
"The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights... against which a subsequent act incompatible with the concept of the Community cannot prevail"
(ECJ Case 6/64)
"[The EU Constitution represents] a visible move in only one direction...from intergovernmentalism to supranationalism...and this should be explained to the people of Europe"
(Czech Republic President Vaclav Klaus)
"European integration isfortunately a train moving too fast for anyone to stop it."
(Vaclav Havel, Czech Politician)
“Millions of people in this country will feel as I do, that legislation passed in this way, with no consent, cannot command the assent of the country and would lack moral and constitutional validity”.
(Douglas Jay MP during 2nd reading of European Communities Bill 1972)
"It is an illusion to think that [EU] states can hold on to their autonomy."(Hans Tietmeyer, head of the Bundesbank 1991)
"...within ten years 80% of our economic legislation, perhaps even fiscal and social as well’ would come from the EU."
(Jacques Delors, President of EU Commission 1988)
"...we must now face the difficult task of moving towards a single economy, a single political unity."
(Romano Prodi, President of EU Commission 1999)
"The day of the nation state is over."
(Roman Herzog, German president, 1996)
"The European system of supranationality comes at the cost of democracy."
(Lord Leach of Fairford)
"A European currency will lead to member nations transferring their sovereignty over financial and wage policy as well as monetary affairs."
(Hans Tietmeyer, head of the Bundesbank, 1991)
"The single currency is the greatest abandonment of sovereignty since the foundation of the European Community: the decision is of an essentially political nature"(Felipe Gonzalez, a Spanish former PM, 1998)
"The [EU] Council of Ministers will have far more power over the budgets of member states than the federal government in the United States has over the budget of Texas."(Jean-Claude Trichet, current head of the European Central Bank)
"One must never forget that monetary union, which the two of us were the first to propose more than a decade ago, is ultimately a political project. It aims to give a new impulse to the historic movement toward union of the European states"(Giscard d’Estaing, who drafted the EU Constitution 1997)
"The process of monetary union goes hand in hand, must go hand in hand, with political integration and ultimately political union. EMU [economic and monetary union] is, and always was meant to be, a stepping stone on the way to a united Europe"
(Wim Duisenberg, first president of the EU Central Bank)
"I like the English style of life. I feel more at home here in London"
(Tintin creator, Belgian born Herge)
"We are not forming coalitions between States, but union among people"(Jean Monnet 'Father of Europe')
"The sovereign nations of the past can no longer solve the problems of the present: they cannot ensure their own progress or control their own future. And the Community itself is only a stage on the way to the organised world of tomorrow."(Jean Monnet 'Father of Europe')
“There is no question of Britain losing essential national sovereignty”
(Ted Heath)
But...
The British Government Knew The Consequences In 1971
Foreign and Commonwealth Office 30/1048 - 1971
...the transfer of major executive responsibilities to the bureaucratic Commission in Brussels will exacerbate popular feeling of alienation from government. To counter this feeling, strengthened local and regional democratic processes within the member states and effective Community regional economic and social policies will be essential.
Parliamentary sovereignty will be affected as we have seen. But the need for Parliament to play an increasing (if perhaps more specialised) role may develop. Firstly, although a European Parliament might in the longest term become an effective, directly elected democratic check upon the bureaucracy, this will not be for a long time, and certainly not in the decade to come. In the interval, to minimise the loss of democratic control it will be important that the British Parliamentarians should play an effective role both through the British membership in the European Parliament and through the processes of the British Parliament itself.
...the transfer of major executive responsibilities to the bureaucratic Commission in Brussels will exacerbate popular feeling of alienation from government. To counter this feeling, strengthened local and regional democratic processes within the member states and effective Community regional economic and social policies will be essential.
Parliamentary sovereignty will be affected as we have seen. But the need for Parliament to play an increasing (if perhaps more specialised) role may develop. Firstly, although a European Parliament might in the longest term become an effective, directly elected democratic check upon the bureaucracy, this will not be for a long time, and certainly not in the decade to come. In the interval, to minimise the loss of democratic control it will be important that the British Parliamentarians should play an effective role both through the British membership in the European Parliament and through the processes of the British Parliament itself.
Posts
8 comments:
Echoing the words of She Who Must Be Obeyed (otherwise you get sent to the naughty step) a great post indeed, TBF
@Mr Witterings Thank you as well... "She Who Must Be Obeyed" There's a lot of 'em about... ;-)
1. Repatriation of powers is not possible: the only legal method would be via an IGC and a subsequent new treaty, which requires ratification by all 28 member states, and this is not going to happen.
2. It is illegal for the UK to attempt to exit the EU by repealing the ECA.
3. It is illegal for the UK to abrogate any treaty (unless via an exit clause, if the treaty has one).
4. Invoking TEU Article 50 automatically leads to a new treaty.
My short response to the above is:
1. There are no absolutes with the EU elite. If it suits their purposes Cameron will get some powers repatriated.
2. & 3. "No (UK) parliament may bind its successor" - whilst we are still regarded as sovereign anyway.
4. It may well do so, but it does not have to.
It may suit the EU elite to keep us in the EU, after all we give them a fair amount of cash every year. They would also lose prestige, and power over some of the other 27 if we left. Hence they may be motivated to bend, or even break their own rules (just as they have already done so to prop up the euro), in order to keep us in. They will huff and puff about the UK not being allowed to pick and mix, but on balance I suspect they will give Cameron some concessions without either an IGC or a new treaty with the UK. So in my view, repatriation of powers is not impossible, but only time will tell.
The likely outcome if there is an offer to repatriate some powers, and Cameron is still PM, is a referendum in the UK. And it is likely to be won by Cameron so we will be locked in the EU for another generation (or until the EU collapses). If this referendum scenario plays out as I think it will, all this talk about Article 50 vs Repeal of the ECA will be so much wasted effort by eurosceptics.
The Vienna Convention makes clear that it applies to States (Article 1) and the preamble includes the "principle" of "the sovereign equality and independence of all States". All the way through it, the powers (or sovereignty) of States are explicit or implicit. Such powers would be meaningless if, once signed, a treaty could never be abrogated.
This is not the same as your statement "the Vienna Treaty also does not list sovereignty as a means of automatically absolving countries from their treaty obligations". No one I know, certainly not me, has even suggested that states should be "absolved" from their treaty obligations. Whilst signed up to a treaty a state must abide by it (the states sovereignty is thus limited). However, once having formally abrogated that treaty (as we would by repealing the ECA) the state no longer has those treaty obligations.
Treaties are fairly rare so inevitably abrogating a treaty happens even less often. But times, politics and regimes change so treaties are not for all time and states do abrogate them. One recent example is when the USA abrogated the ABM ballistic missile treaty in 2001. Another is when the Czechs exited the Warsaw Pact in 1991.
You quote 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 retain the right to abrogate any treaty (until such a time that the international community no longer recognises our independent sovereignty).
to be continued ..
The Metric Martyrs Appeal Court judgement (Laws et al) makes it clear that EU laws only supercede UK (domestic, non-constitutional) laws because the ECA gives the EU laws the status of constitutional law. That judgement still stands. Clearly repeal of the ECA (which is in the power of parliament) makes EU law inapplicable within the UK.
Directives from the EU are implemented into domestic law by the UK. They would thus remain on the statute book after a UK exit from the EU (and would have to be dealt with if necessary 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 an enormous amount of work will be required to enact duplicate (but UK) legislation to (at least temporarily) replace redundant EU laws (which govern institutions that we still need to run a modern state) before repealing the ECA. However, this work would still have to be done even if we took the Article 50 route.
In general your citations do not support your absolutes. 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 ICJ probably would not work because the ICJ tends not to get involved in politically controversial issues. On occasions, when has done 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 treaty being automatic upon invoking TEU Article 50, come on, TBF, you don'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 after invoking Article 50, if the UK stayed within the EU's jurisdiction in some way but under radically revised conditions.
You claim that the provisions of TEU Article 50 (4) are "entirely logical otherwise the UK would end up negotiating with itself." Well, only if the UK's representatives were schizophrenic. If it were allowed (it isn't) the UK would merely be present as the applicant, and be able to take part in all the negotiations round the table as the applicant. But TEU Article 50 (4) states the UK cannot "participate in the discussions of the European Council or Council or in decisions concerning it" so we are excluded.
This means the rest of the EU can decide what terms they will offer us. Now they may be nice about it, but 40 years has shown they won't be. They won't have a "hissy fit" as you inelegantly put it, they will carefully engineer such exit conditions that achieve their desired outcome. They will exact a price, they won't give us anything for free. The terms may be so draconian, politically or economically, that we are forced (for the pedants, that does not mean, ad litteram, chaining us to the EU) to remain in. Actually the EU elite may want to get rid of us - but they will exact a price for that too. If anyone thinks differently please cite all the negotiations within the EU that went the UK's way.
1. Repatriation of powers is not possible: the only legal method would be via an IGC and a subsequent new treaty, which requires ratification by all 28 member states, and this is not going to happen.
2. It is illegal for the UK to attempt to exit the EU by repealing the ECA.
3. It is illegal for the UK to abrogate any treaty (unless via an exit clause, if the treaty has one).
4. Invoking TEU Article 50 automatically leads to a new treaty.
1. That is largely my position yes – though my precise point is that it is possible in theory just not in practice.
There are no mechanisms within the current EU Treaties to do that for very good reasons; it goes against the principles of ‘ever closer union, Acquis Communautaire and the ultimate desire of complete economic and political union. Repatriation of powers is only possible (in theory) via a new treaty. This is the position Cameron is taking – that he can hijack a future treaty via an ICG by using the threat of a veto. My view is he can’t but that is another matter. You write
“Hence they may be motivated to bend, or even break their own rules (just as they have already done so to prop up the euro), in order to keep us in”
The problem is those two are not comparable. Breaking the rules for the Euro is completely inline with the raison d'etat of the EU – ever closer union. It is desperate to prop up the Euro to prevent its own collapse.
Conversely breaking EU treaty rules to repatriate power for a specific country would do the completely opposite – giving the UK a special status within the single market – which goes against everything the EU ever stands for and would dangerously risk unraveling the entire project – thus facilitate its own collapse.
You are conferring upon the UK an importance it does not merit.
Given the choice between more integration or UK membership, the EU is quite clearly going to choose the former. The Eurozone crisis demonstrates that the EU is going to continue integrating with or without the UK.
Besides EU Treaties are international treaties, the EU is covered by international law as are we. For us to accept fundamental breaches of agreed EU Treaties as well as the EU offering them, would reflect very badly on both parties with severe consequences.
2. My position is that exiting the EU by ignoring the Lisbon Treaty would be in breach of our international obligations which were agreed and ratified by our own country.
You say; "No (UK) parliament may bind its successor". This does not mean that successive Parliaments can ignore the law passed by previous ones, just that it cannot be prevented from changing its mind. Thus with Lisbon nothing prevents Parliament from changing its mind – it can simply do so by following due process – which is A50 – to which it fully agreed with and is obliged to under Vienna which we remain signatories to.
3. I never said that and it doesn’t even come close to what I said. I laid out the Vienna clauses for revoking an international treaty and merely highlighted that without the exit clause, “it could be argued” that the implied withdrawal was not possible for EEC/EU Treaties because implication was negated by the “ever closer union” clause.
There are also other reasons for leaving in Vienna – I was merely highlighting the unholy mess the whole process was before Vienna as demonstrated by the Greenland saga, as per my Hansard link. Can I respectfully suggest you read my piece again.
...tbc
4 Quite right, a country leaving would involve fundamental changes to the EU which require a new treaty and also require new international trading agreements for us with the EU – a new relationship. This is also cannot be done without a new treaty, ratified by all parties concerned.
Negotiations in any circumstance depends on coming to a common position for mutual self- interest. It is in the EU’s interests and the UK’s to maintain trade with minimum disruption. The EU simply cannot force terms on us:
a) because of the unilateral clause in A50 we can simply leave
b) and that the EU’s terms have to be agreed by all member states. It’s simply ludicrous that crisis hit countries such as Ireland are going to ratify terms domestically that prevent trading with a major country
You then say “The terms may be so draconian, politically or economically, that we are forced (for the pedants, that does not mean, ad litteram, chaining us to the EU) to remain in.”
If the terms are so draconian then we don’t agree them and just leave as per the unilateral clause in A50. I’m really not sure what part of that you don’t consistently understand…?
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