Bernard Jenkin: Using Article 50 to quit the EU risks making a mockery of Britain's decision

No international court is going to insist that the UK government must submit the UK to a process laid down in a treaty our voters have just rejected, says the chairman of the Public Administration and Constitutional Affairs select committee

By Bernard Jenkin MP

29 Jun 2016

The prime minister made clear that there will be much to do before the UK invokes Article 50 of the Lisbon Treaty.

It may seem logical that the UK should adopt the procedure set out in the treaties at the outset. That is what the EU Commission would like. Moreover, we are told that Article 50 is “the only legal way” to leave the EU. So why should this not be done? After all, it provides that the EU 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”. What more would we want?

Unfortunately, there is more to the Article 50 process than just that. It would require the UK to continue to be bound by a clause in the Lisbon Treaty which the voters have just rejected in the referendum. This makes a nonsense of the democratic decision voters just made.

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To leave the EU, there has to be an Act of Parliament: to repeal the 1972 European Communities Act (ECA); and to carry over the entire body of EU law in the UK statute, to provide for continuity. How and when Article 50 is used is a secondary matter.

The risk of invoking Article 50 without the backstop of domestic legislation is that we are pulled into an EU-controlled process which could make the process of leaving unnecessarily protracted, and during which we remain subject to all conditions of membership for up to two years or more. It does not guarantee a satisfactory outcome or indeed any agreement at all at the end of the process. We should only enter the Article 50 process when we are certain of what the outcome will be, and when. We should not accept it as a framework for negotiation.

This advisory referendum neither triggers any process nor provides any mandate to insist on Article 50. Some Remain supporters advocate this, but they lost the referendum.

There are three critical elements of Article 50. First, the other 27 heads of government can conclude the agreement by qualified majority. Secondly, the European Parliament still gets a veto over the process, so whatever agreement is reached, the elected heads of government could be overruled. Third, and most significantly, Article 50 stipulates a two year period (and it can be extended by consensus), during which the UK would remain absolutely bound by all the obligations of EU membership. This is the most serious problem. 

"There is no need to invoke Article 50 straight away, if at all. Before Lisbon, there was always a means of leaving the EU"

This is contrary to the instruction from UK voters to take back control over our laws and borders and our money as soon as possible. During that period, the UK could not introduce work permits for incoming EU nationals, or limit our payments to the EU budget. We could overthrow the whole process but, having accepted the process, that really would create bad blood with the other nations.

There is no need to invoke Article 50 straight away, if at all. Before Lisbon, there was always a means of leaving the EU. In 1975, Harold Wilson instructed the then cabinet secretary to be ready to prepare the legislation immediately for the repeal of the 1972 ECA, to rescind the obligations of membership and to absolve the country of the requirement to implement EU law. There was no question of it taking years to restore the power of our parliament. 

Today’s cabinet secretary should again be ready. Whatever negotiations are necessary while that legislation is brought onto the statute book, the repeal act should be ready to come into force at the right moment, and without any agreement if necessary. That is essential to give the UK a strong negotiating position.

There are lawyers and civil servants who insist that the UK has an obligation to respect Article 50: that it is an obligation under international law, and, while we remain a member of the EU, it applies directly in our own law. This is precisely why interpreting a vote to leave the EU in this way is so restrictive. 

While it would be conciliatory to accept Article 50 when it is safe to do so, it is at least debatable that it is necessary at all. No international court is going to insist that the UK government must submit the UK to a process laid down in a treaty the voters have just rejected in a referendum. Any conflict between the referendum mandate and the Lisbon Treaty should be resolved at the political level, to respect democratic choice of the British people, rather than as a matter of law.

The Conservative leadership election allows time to discuss proposals for negotiation and agreement. Much preparation can be done by officials and with informal talks with EU officials. The only absolute commitment that the government and the leadership candidates must make is to leave the EU. This cannot be made conditional on Article 50, or on any pre-exit agreement. The referendum mandate cannot be diluted or delayed. They must also therefore commit to bring forward the necessary legislation to repeal the ECA as swiftly as possible.


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