Saturday, 4 August 2012

Article 50

I promised a response to Richard North, whose rather more widely read blog started a debate on the topic of the mechanisms for leaving the EU.

There are two ways - either the UK leaves (as I argue we should) in accordance with the TEU itself, under Article 50, or under the Vienna Convention on International Treaties.  Vienna can be excluded but was not, so there is no doubt it applies to the TEU.
Article 50 has a longer waiting period, during which political pressure could be brought to bear to reverse the decision, making it the less attractive option.  It is really only useful to states which need continued tariff free access to the markets of EU Member States, ie states which are net exporters.  For a state like the UK, whose market is more important to the Member States than vice versa (please bear in mind the official trade figures are distorted by the Rotterdam Antwerp Effect and the use of VAT figures, which tend to exaggerate exports), Vienna is the far more attractive route.

There are several options under Vienna, the easiest being withdrawal on say six months notice on the ground of material change of circumstances.

Domestic law is entirely a matter for Parliament, which is not bound by international treaties, which work on the intergovernmental plane only.  That is because the UK is a dualist state, where treaties are not part of the domestic law unless they are incorporated.  The TEU is incorporated, via the European Communities 1972, but can be unincorporated through the simple mechanism of repealing or amending that act.

In the Metric Martyrs Case, where I was leading junior counsel for the appellants, the Divisional Court declined to follow the notorious Factortame decision and rightly so with respect, holding that the relationship between British and community law is governed by British law, not the other way around.  In Factortame, the House of Lords, without hearing argument on the point (so its ruling was not binding) got it wrong, and applied community law instead of British law.  

Sensibly Parliament would provide for a 6 month transitional period to match the notice period, during which UK regulations incorporating EU Directives etc could be revoked.   Community law provisions having direct effect could cease to apply from day one.

Citizens of EU Member States exercising treaty rights here could be required to leave by the end of the 6 month period, which would of course see a dramatic fall in unemployment, as there are over over 2.5 million EU nationals taking up British jobs (very few have skills we could not supply ourselves).   

Essentially what I am saying is that the legal mechanisms for withdrawal are straightforward.  Economically UK plc would be about 4 billion pounds a week better off after withdrawal, so crushing is the burden of EU membership.  The big problem is political, ie finding a way to break up the Coalition and lose Cameron as Tory Leader.   

Much confusion has been caused by the fact that the Treaty of Rome and the TEU which revoked and replaced it were both described being in force for "an unlimited period."  All that means is that they are not fixed term treaties, unlike the treaty establishing the Western European Union, which was designed to expire after 50 years.  Essentially treaties are of two types: fixed term and unlimited.   You can withdraw from either in accordance with the treaty itself or under the Vienna Convention.

There is no question that the UK will withdraw from the EU.  The only questions are when and how.  Politicians trying to stop it are just standing in the way of history and need to be pushed aside.  

The Qatada case has killed the idea of Britain continuing to be a member of the Council of Europe and adhering to the outdated European Convention on Human Rights.   Public support for membership has collapsed and withdrawal from the ECHR is now inevitable.  That would probably be on 12 months notice under the Convention itself, but membership would be pretty meaningless once the controversial Human Rights Act 1998 was repealed (conveniently that could be done by the act repealing the ECA72).    The right of individual petition would be withdrawn at the same time as pulled out, clearing the way for Qatada's deportation to Jordan.

One the UK was safely out of the ECHR there would be no reason to dictate sentence to the Hashemite Kingdom of Jordan.  At the moment, offensively, we are telling the Jordanian courts what they can and cannot do.  Since Qatada has already had a fair trial, albeit in absentia (which was his decision) and has very properly been sentenced to death, he could be returned simply for execution of sentence, which we can be sure would be done in a humane way and in strict accordance with Jordanian law, with an imam in attendance to attend to Qatada's spiritual needs.    


1 comment:

  1. If it was up to me I'd just tear the treaties up, they are unlawful anyway, an act of Treason, as such non binding as you can't be held to an unlawful law.
    Under British constitutional Law. British Sovereignty is for all time.
    Anyone that doesn't like it is free to leave.
    If the EU, or the UN ever did come up with a half decent law, we are quite capable of copying and enacting a similar law in the UK as a sovereign nation, free at anytime in the future to tear it up.