The slow road to Brexit

It will be several months before the UK government invokes Article 50. Open Europe‘s daily briefing stated today that Theresa May has confirmed to her Danish and Dutch counterparts that the UK will not invoke Article 50 until 2017 to allow all member states time to prepare for the negotiations.

The exit route remains equally unclear. An article in today’s Guardian features an interview with Elisabeth Vik Aspaker, Norway’s European Affairs Minister, who seemed to cast doubt on whether the UK would be welcome back into EFTA. Her concerns centre around the changes to the dynamics of EFTA that would inevitably take place if the UK re-joined, which would make it by far the largest of a group of five countries, overshadowing Norway.

However, the Guardian‘s piece, taken from the Norwegian newspaper Aftenposten, is not the whole story.  A group of senior Norwegian Ministers are due to meet with David Davis, the Brexit minister  in the next few weeks and it is inconceivable that the EEA/EFTA subject will not be mentioned. A perceptive piece by Dr Richard North says that so far, there have been no formal indications from the UK that it wishes to re-join EFTA. However, in spite of positive noises coming from Iceland, all four countries have a veto, so there is no guarantee that we wold be allowed to re-join.

A Norwegian veto may be pretty unlikely, however, as Dr North points out, because there are many politicians in that country, particularly on the political left, who want something better than the current EEA arrangement and would support the extra clout that a large country like the UK would provide for the non-EU countries of Western Europe in future negotiations with the EU.  The negative take by the Guardian is therefore far from the full story.

For those many activists who put so much effort into achieving the historic result on June 23rd, this lack of progress is frustrating, but behind the scenes, things are definitely happening.  Specialist staff are being recruited by the Civil Service to handle the Brexit negotiations; your scribe met one person only last Sunday who applied for one position.

We do at lest have the consolation of knowing that, in spite of the publicity given in the aftermath of the referendum to a handful of leave voters who regretted their choice, the electorate has accepted the result. Polling by You Gov gave 52% support for Brexit – the same percentage as voted to leave on 23rd June. A majority of voters still see leaving the EU as the right thing to do.

One interesting twist in the Brexit story emerged a couple of weeks ago. The former Italian Prime Minister  Giuliano Amati, claims that he wrote the wording of Article 50 in the Lisbon Treaty, but only intended it to be “a classic safety valve that was there, but never used.”

Signor Amati belongs to the “Make Britain suffer” school, who believe that we should be made an example to stop other countries following us out of the door. Thankfully, present political leaders, including Germany’s Angela Merkel, have so far sounded much more pragmatic, recognising that a smooth divorce is in the best interests of business on both sides of the Channel.

Furthermore, there is a flaw in the thinking of people like Amati. If the EU is such a good thing, should we not be pited rather than punished for voting to leave?  Why should the EU institutions be scared about other countries following us out of the exit door if this project is so wonderful? His statements underline the harsh reality that there are few successors to the EU visionaries of 40-60 years ago who truly enthused about the project.

Certainly, in the UK, there was no one of the stature of Heath or Jenkins  to swing the vote as they did in 1975. Remainers were more concerned about not rocking the boat rather than looking forward excitedly to yet more power being handed over to Brussels. It is not just over here that enthusiasm for creating an United States of Europe is waning. The harsh truth is that the EU project is becalmed. It is becoming, in the words of Andrew Duff, a former Lib Dem MEP a “Never-closer Union”. A Yugoslavia-style disintegration would be a most unpleasant affair, but Amati and other European politicians who called Brexit a “disaster” need to face up to the fact that a gradual piecemeal dismemberment may be the best future for this failing attempt to create an unnatural federal superstate.

The Complexities of Brexit

The government is recruiting experts to work out how best we will leave the EU.

It is going to be a complicated process if there is to be no major disruption to trade. These papers, written by Richard North and published under the auspices of the Leave Alliance, of which CIB Is a member, look at some of the issues which will need to be addressed.

Squaring the Circle looks at how the two seemingly conflicting demands for access to the single market and a restriction on migration from the EU can be reconciled.

WTO Option analysed looks at what would happen if we did not end up with any agreement on trade with the EU and had to rely purely on so-called “WTO rules”

EU Payments addresses the knotty subject of what financial contribution an independent UK would be likely to make to the EU. It isn’t going to be zero!

Article 50 and Brexit addresses the issue of whether any other alternative exit route from the EU is available.

Trade Barriers and Brexit debunks the suggestion that the EU would offer us a good trading deal by default and also considers the issue of non-tariff barriers, which are a big potential problem for exporters if there is no access to the single market.

With not a lot of Brexit news on which to comment at the moment, we would thoroughly recommend these very thoroughly-researched papers.

 

 

 

 

Brexit – a legal opinion

With some remainers calling for a second referendum, Patience Wheatcroft talking of the House of Lords holding up Article 50 and a legal challenge being mounted by lawyers Mishcon de Reya, could the Brexit vote end up being nothing more than a consultation exercise that didn’t actually achieve anything except to cause Sterling to fall in value? Not necessarily. 

This piece, written by the Lawyers for Britain organisation, attempts to address the understandable fears of some who supported Brexit that everything could fall apart.  It suggests that the likelihood of Brexit falling apart is very remote as the vote has a much stronger legal basis than some would have you believe.  

The referendum vote is binding

Invoking Article 50: the Law, the Constitution and Politics

    • The legal power to invoke Article 50 of the Treaty on European Union is in law a prerogative power vested in the Crown, which may be exercised by government ministers without the need for authorisation or consent from Parliament. There is no credible legal argument supporting the legal challenge being advertised by law firm Mishcon de Reya.
    • Constitutionally the referendum result was decisive and binding and not just advisory. The referendum result not merely authorises but positively mandates the government to exercise its legal power to give notice under Article 50.
  • As a matter of democratic politics it is astonishing that so many people should apparently regard it as legitimate to engage in activities designed to frustrate the expressed will of the British people. Sadly, this is a symptom of the serious damage which 40 years of membership has done to our sense of national cohesion. This damage can begin to heal once we leave.

Moves to undermine and block the referendum result

Since the result of the Brexit referendum was announced on 24 June 2016, it has become clear that there are significant forces in this country who do not accept the democratic result. There have been both legal and political moves in certain quarters to seek to delay, frustrate, re-run or somehow ultimately reverse the decision taken by the people of the United Kingdom.

One of those moves has been a legal action threatened by the law firm Mishcon de Reya on behalf of undisclosed clients, whose stated aim is “to ensure the UK Government will not trigger the procedure for withdrawal from the EU without an Act of Parliament.” Mishcons website

The stated aim of this legal action is to “protect the UK Constitution and the sovereignty of Parliament”. But there can be little question that its true aim is an attempt to block the implementation of the referendum result through using a pro-Remain majority in Parliament – particularly in the House of Lords – to frustrate the expressed will of the people. Indeed, the whole action is breath-takingly hypocritical: invoking professed concern for the sovereignty of Parliament in order to fetter and ultimately extinguish that sovereignty through continued membership of the EU.

Another move on the political front has been as online petition calling for a retrospective nullification of the referendum result and a re-run which states that:

“We the undersigned call upon HM Government to implement a rule that if the Remain or Leave vote is less than 60% based on a turnout less than 75%, there should be another referendum.”

It has been reported that that petition attracted 4 million signatures, but on 10 July 2016 it was formally rejected by the government.

A third move, this time a mixture of legal and political, has been a letter to the Prime Minister which claims to be signed by over 1,000 barristers.  This calls for an Act of Parliament before the procedure is triggered under Article 50 of the Treaty on European Union for the withdrawal of the UK from the European Union, and for a Royal Commission to examine the consequences and report back before the vote is taken on such an Act.  Again, there can be little doubt that this is not a serious attempt to enhance the workings of Parliamentary democracy, but rather an attempt to delay and frustrate the implementation of the decision of the British people for years in the hope that it can somehow be reversed.

This series of attacks on democracy raise a number of legal, constitutional and political issues, which will be addressed in depth in this article.

The law on invoking Article 50

Article 50 of the Treaty on European Union was inserted into that Treaty by the 2007 Lisbon Treaty. It is often (inaccurately) referred to as “Article 50 of the Treaty of Lisbon”. It entitles any Member State to withdraw from the European Union and sets out (in broad outline) the procedure to be followed. Article 50(1) and the first sentence of Article 50(2) set out in very simple terms how the process of withdrawal is begun:

“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. …”

As paragraph 1 above confirms, the constitutional law of each Member State governs how that State shall take a decision to withdraw and who, under its national law, has power to take such a decision. The procedure by which this will done will vary from State to State. For example, where, as in the case of some States, membership of the EU has been embedded into the national constitution, it might be necessary to amend that constitution by some special procedure in order for the State to make a valid decision to withdraw.

The United Kingdom does not have a written constitution which spells out who has the power to take a decision to withdraw from the EU and communicate that decision to the European Council. Therefore, one starts by looking at the general law on who has the power to conclude and withdraw from international treaties. And the general rule is quite clear. Under the UK’s constitution, it is the Crown (the Queen acting under the Royal Prerogative in practice on the advice of government ministers) which has the power to enter into and withdraw from international treaties.

Before 2010, there was no legal requirement for Parliament to approve the ratification of treaties or even to be consulted, although there was a constitutional convention (the “Ponsonby rule”) under which the government undertook to lay treaties in front of Parliament 21 days before ratification. The Constitutional Reform and Governance Act 2010, sections 20 to 25, put the Ponsonby rule on a statutory footing and empowers the House of Commons (but not the House of Lords) to block the ratification of a treaty by passing a resolution against it.

Many international treaties contain provisions similar to Article 50 which allow notice to be given withdrawing from or terminating the treaty. The 2010 Act applies to the initial ratification of a treaty, but does not apply to the giving of a notice withdrawing from it or terminating it, or indeed to measures or decisions made under it (as made clear by section 25(2)). Accordingly, the giving of a notice of termination or withdrawal remains part of the prerogative powers of the Crown untrammelled by any legal requirement for the approval of Parliament.

Although the Crown has extensive powers over international treaties which as a matter of law can be exercised without reference to Parliament, it has no power to alter the internal laws of the United Kingdom. This can only be done by Parliament, or under specific powers granted by Parliament. This means that the Crown is in practice unable to ratify international treaties which contain obligations to alter the internal law of the United Kingdom without Parliament first having made the necessary changes in the law, or at least being very confident that Parliament will make the required changes, or it would end up in breach of its international treaty obligations.

It is sometimes loosely said that Parliament has “ratified” a treaty when it passes an Act which gives effect to a treaty in the UK’s internal law. But this is inaccurate – Parliament enacts the necessary changes in the law and the Crown then ratifies the treaty under its prerogative powers. They are separate acts, one by Parliament the law-maker, and the other by the Crown exercising its international treaty powers.

Parliament has made the necessary changes in the UK’s internal laws to give effect to the European Union treaties, mainly through the European Communities Act 1972. This was passed in 1972 in order to give effect to the Treaty of Rome which applied to the United Kingdom from 1 January 1973. Whenever the Treaty of Rome has been amended, Parliament has passed another Act amending the 1972 Act in order to give the necessary effect in the UK’s internal law to the European treaties as amended.

But the fact that the European Communities Act 1972 gives effect to the European treaties in UK internal law does not exclude the prerogative powers of the Crown in relation to the operation of those treaties on the international plane. And actions taken by the Crown on the international plane will have consequential effects of altering the law within the UK. For example, if a Minister votes in the Council of Ministers in favour of a Regulation which is directly applicable inside Member States, that Regulation will then alter internal UK law.

The giving of notice under Article 50(2) of the Treaty of European Union is an act on the international plane, which alters or affects the UK’s international treaty obligations by bringing the UK’s adherence to the EU treaties to an end after a maximum 2 year period. Clearly this will then produce a consequential effect in UK domestic law since once we leave the EU, its various laws and rules will cease to apply internally in the UK. But the primary effect is on the international plane, and the subsequent effect on domestic law is consequential.

Insofar as it is possible to understand the arguments put forward by Mishcons in their intended legal action, it would appear that they wish to argue that Parliament by enacting the 1972 Act has (by implication) restricted the exercise of the royal prerogative to prevent the Crown from giving notice under Article 50 without the consent of Parliament. The argument has to be based on implication because there is nothing in the express words of the 1972 Act or any Acts of Parliament which follow it which restrict the Crown’s right to exercise this international treaty power.

There are however three answers to this argument.

First, there is no coherent or logical basis for arguing that Parliament has not impliedly restricted the exercise of the prerogative where a Minister of the Crown takes an action which increases EU powers, for example by voting for a new Regulation in the Council of Ministers, but arguing that Parliament has impliedly restricted the exercise of the prerogative power in case where (under Article 50) the exercise of the power results in a reduction EU powers. Such a claimed distinction appears to arise solely from the prejudices of those who seek to advance this argument rather than from any coherent logic or legal principle.

Secondly, the proposition that Parliament has impliedly restricted the exercise of prerogative powers under the European treaties has been rejected by the courts. In R v Foreign Secretary ex parte Rees-Mogg [1994] QB 552 (Lord Rees-Mogg’s  unsuccessful challenge against the ratification of the Maastricht Treaty), Lord Lloyd giving the judgment of the Queen’s Bench Divisional Court rejected an argument that the European Communities Act 1972 impliedly restricted the exercise of the Royal prerogative under the European treaties. He said: “When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms, …

Thirdly and conclusively, the argument that Parliament has impliedly restricted the prerogative power of the Crown under Article 50 is impossible to reconcile with the European Union (Amendment) Act 2008. That Act was passed to enable the UK to adhere to the Lisbon Treaty by adding it into the list of European treaties in section 1 of the European Communities Act 1972. As pointed out above, the Lisbon Treaty amended the Treaty on European Union by inserting Article 50 into it, as well as making a large number of other amendments to that Treaty and to the Treaty of Rome (which it renamed the Treaty on the Functioning of the European Union or “TFEU”).

But nowhere in the 2008 Act in there any restriction upon the exercise of the Royal prerogative to give notice under Article 50. By contrast, section 5 of the 2008 Act imposed an explicit restriction on the Royal prerogative by requiring that any amendment of the founding treaties under the Ordinary Revision Procedure of Article 48(2) to (5) of the Treaty on European Union cannot be ratified unless approved by Act of Parliament. In addition, section 6 imposed a requirement of Parliamentary approval (by resolution of both Houses) on a number of prerogative actions by Ministers of the Crown under certain other Articles of the Treaty on European Union and of the TFEU.

So Parliament in the 2008 Act created a detailed scheme under which prerogative actions under certain specified Articles of the Treaties were explicitly made subject to Parliamentary control, either by a requirement for an Act of Parliament or for resolutions of both Houses. Since Parliament did NOT include Article 50 among the Treaty provisions where the acts of the Crown or of Ministers require Parliamentary approval,  it is quite impossible to argue that such a restriction of the Royal prerogative arises by implication in the case of Article 50 and of other Treaty articles where Parliament has chosen to impose no such restriction.

In conclusion, the power in law to give a notification under Article 50 is a prerogative power of the Crown which may be exercised by the government without the need for Parliamentary consent or approval. Mishcon’s legal challenge is quite hopeless and is bound to fail.

Constitutional authority and obligation

So far, we have considered the question of who has the legal authority to trigger Article 50, and it is the government exercising Royal prerogative powers.

However, under the UK’s unwritten constitution, the question of who has legal authority to do something is not always the same as who has constitutional authority to do it according to the practice and conventions of the constitution.  There are many instances where the holder of a legal power is constrained by constitutional practice to exercise it or not to exercise it in a certain way.

A famous and well known example is the constitutional convention under which the House of Commons alone is responsible for taxation. When the House of Lords broke that constitutional convention by exercising its legal power to vote down Lloyd George’s 1909 budget, it provoked a constitutional crisis which ended with the curtailment of the powers of the House of Lords under the Parliament Act 1911.

The legal power to trigger Article 50 rests in the Crown (i.e. the government) as explained above. However it is clear that as a matter of constitutional practice, that government legal power must be exercised to give effect to the declared result of the referendum.
First, the Conservative General Election Manifesto of 2015 promised a referendum on membership of the EU in the following terms:

“We believe in letting the people decide: so we will hold an in-out referendum on our membership of the EU before the end of 2017.”

It should be noted that the election promise was to “let the people decide”. It was not a promise to hold an advisory referendum, with the final decision being left to Parliament. Nor was there any mention of minimum thresholds of percentage of vote or of turnout before the referendum would be binding. Therefore the British people were given a politically and constitutionally binding promise in the election manifesto of the successful party that they would be given the final and deciding say in a referendum in which the majority would prevail.

As a matter of constitutional practice, the inclusion of a policy in the election manifesto of a political party which achieves a majority at a general election gives rise to a constitutional mandate to implement that policy.

Secondly, Parliament enacted the European Union Referendum Act 2015, whose formal title stated that its purpose was “To make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union”. That Act authorised the holding of the referendum, regulated who would be legally entitled to vote in it and other matters about the conduct of the campaign, and specified that the question would be: “Should the United Kingdom remain a member of the European Union or leave the European Union?”

The Act does not contain any provision saying that its result is subject to a minimum turnout threshold or a mininum percentage vote in favour of either remain or leave. Such thresholds can be imposed, for example a 40% of the electorate threshold was specified by Parliament in the 1979 Scottish devolution referendum. What would be unprecedented would be restrospectively imposing a threshold after the vote has taken place, as proposed by the petition mentioned above.

The letter from 1,000 barristers claims that the result of the referendum is “advisory” because that Act “does not make it legally binding”.  Clearly there is something seriously wrong with legal education today if 1,000 barristers can be found with such deep ignorance of the British constitution. It is true that the Act does not contain a section at the end expressly saying that the government is under a legal duty to proceed to implement the result of the vote.

But that does not mean that the referendum result is “advisory”. The Act itself does not say that it is advisory. At no point did ministers in their public statements either to Parliament or outside say that the referendum result would only be advisory. On the contrary, they repeatedly said that the referendum would allow the British people to decide the question of whether we remain or leave.

In opening the second reading debate (Hansard) on the Referendum Bill on 9 June 2015, the Foreign Secretary said:-

“This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.” (emphasis added)

And he concluded that speech as follows:

“Few subjects ignite as much passion in the House or indeed in the country as our membership of the European Union. The debate in the run-up to the referendum will be hard fought on both sides of the argument. But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.” (emphasis added)

Thirdly, in the course of the referendum campaign the government spent £9.5million of taxpayers’ money on printing a leaflet and distributing it to all households in the United Kingdom. That leaflet attracted widespread (and deserved) criticism for its gross bias in favour of remaining in the EU. However, on the consequences of the referendum it could not have been clearer. On the page headed “A once in a generation decision” it stated that:

“The referendum on Thursday 23rd June is your chance to decide if we should remain in the European Union.”

It did not say “it is your chance to advise on whether we should remain, the actual decision being taken by Parliament.”

But it went on to be even clearer and more emphatic:

This is your decision.  The Government will implement what you decide.

It is therefore clear that the referendum was not merely advisory, but was constitutionally decisive and binding. The clear, repeated and unequivocal promise made to the British people was that their vote in the referendum would finally decide the course which our country takes. Treating the result as merely advisory would be a flagrant breach of the repeated and unequivocal promises made to the British people. There should be no second guessing or reversal of the result by Parliament or by anybody else.

The government is therefore constitutionally mandated to exercise its legal power under the Royal prerogative to trigger the Article 50 process.

Political commentary

What is astonishing about these various moves to frustrate the result of the referendum is that the people involved have so little respect for democracy, and so little self-awareness.  They arrogantly believe that their minority views should prevail in the face of the clear majority decision of the British people. Many of them seem coloured by the view that people who voted to Leave are stupid, uneducated, xenophobic, racist and live outside London, and accordingly their votes are worth less than their own educated and enlightened votes cast by people such as them in London or (even better) in Hampstead.

It is deeply disturbing that any citizens of this country should be so dismissive of the democratic rights of millions of their decent and intelligent fellow countrymen and countrywomen, who cast their votes in the poll with the highest national turnout for 24 years.  The 17,410,000 people who voted to leave the European Union were the highest number ever to have voted in the history of the United Kingdom for a proposition or for a political party.

The astonishing arrogance, petulance, and desperate plotting to negate the democratic decision of the British people which has been displayed since the referendum result was announced is a deeply worrying symptom of the great damage which 40 years of EU membership has done to our sense of national and civic cohesion.  The EU has persistently pursued policies which at every level are designed to weaken the bonds which bind us together as a nation. Its technique is to recruit an elite inside each Member State which regards its primary allegiance as being to the EU and not the country, and which is rewarded with power and influence in return for keeping the serfs under control.

It is by leaving the European Union that we can begin the long term process of healing our nation from this disease, and re-unify our people once again as a proud independent self-governing nation.

UK gives up EU presidency as IMF rows back on recession fears

Prime Minister Theresa May has  made it clear that she will not be rushing to invoke Article 50 of the Lisbon Treaty and begin the process of taking the UK out of the EU. “I do not under-estimate the challenge of negotiating our exit from the European Union and I firmly believe that being able to talk frankly and openly about the issues we face will be an important part of a successful negotiation”, she said last week.

However, one small step has been made. She has decided that the UK will give up its rotating presidency of the European Union, which was due to begin in July 2017. Mrs May told Donald Tusk, the European Council President, Tusk that it was “the right thing to do given we will be very busy with negotiations to leave the EU”. So it looks like Article 50 will be implement early next year.

The uncertainties about both the timing of Article 50 and the details of the exit strategy have been the main reasons for the widely-reported claims of an economic slowdown. However, according to a piece in the Daily Mail, the  Bank of England said that it has not found “clear evidence” that a sharp slowdown was underway in Britain’s economy after the June 23rd vote to leave the European Union, though around a third of firms it spoke to plan to curb hiring and investment.

The Bank claimed that business uncertainty “had risen markedly” but there was little evidence that consumers were spending less either. “A majority of firms spoken with did not expect a near-term impact from the result on their investment or staff hiring plans. But around a third of contacts thought there would be some negative impact on those plans over the next 12 months,” However, the Bank was adamant: “As yet, there was no clear evidence of a sharp general slowing in activity.”

Nonetheless, the Interational Monetary Fund has downgraded its projections for global growth, citing Brexit as one of the reasons. For this year, glolbal GDP would grow by 3.1% instead of 3.2% and 2017’s figures were downgraded from 3.5% to 3.4%.

This is based on an assumption that trade talks go well. A piece published by Bloomberg suggests that the IMF would expect to see global growth drop as low as 2.8% in the event of a messy divorce looming. It is hard to believe that our country’s economy is of such importance that an impasse on trade talks really would knock 0.6% off the entire world’s GDP growth.  It is worth remembering that the IMF has not always been terribly  accurate in its forecasts in the past. In 2013, the institution did own up to being totally wrong over the scale of Greece’s financial woes and some commentators have asked the question as to whether the IMF ever gets anything right.

However, one prediction worthy of comment is that the IMF still reckons we will not only escape recession but record a faster rate of growth this year than the Eurozone.  Certainly, the UK’s economic fundamentals appeared to be pretty sound in the immediate run-up to the referendum and although the pound has fallen in value since June 23rd, the Bank of England’s failure to find any evidence of a serious economic downturn is unsurprising. No stimulatory measures were taken at last month’s Monetary Policy Committee and  it is possible that nothing much will happen next month either.

There are plenty of stories doing the rounds about optimism falling in some UK businesses, but if Brexit is managed successfully – and the delay in invoking Article 50 suggests that a detailed strategy will be developed before this takes place – we believe that Brexit will be economically neutral in the short to medium term and a benefit rather than a disaster for the UK economy in the longer term.

Wth the referendum now behind us and the summer recess just beginning, news is likely to be rather thin on the ground until the beginning of September. We do, however, intend to send out our usual weekly e-mail throughout this period as there will always be a few things to report.

Before signing off for this week, one further article by our friend Joris Luyendijk deserves a mention. This Dutch author and chat-show host is such an enthusiastic supporter of the EU’s federalist agenda that he makes  Jean-Claude Juncker seem like a eurosceptic. The Guardian occasionally gives him a slot and his latest offering is even more full of bile against our country than usual. The man opposes giving us a reasonable deal and says that the EU must inflict “Project Pain” on us to ensure we face economic disaster. He fears that if it doesn’t, other countries may follow us out of the door.

Two points in response. Firstly, he mentions all the distortions told by the leave campaign which he fears could be used as a template in other countries. While we in CIB were uncomfortable about the way the issue of our contribution to the EU was handled, for example, this is nothing compared to the nonsense put out by remainers. At a debate in which I participated, one of my opponents said that we would not be allowed to re-join EFTA.  This is pure hogwash. On a different occasion, a former cabinet minister insisted to my surprise that David Cameron would trigger Article 50 on June 24th if Leave won. Instead, he resigned as Prime Minister.

Secondly, while Mr Luyendijk’s  determination that no other country will leave the EU is shared by most, if not all, of the leaders of the 27 remaining member states, some of them at least are much more pragmatic, including Germany’s Angela Merkel. Trade has to continue and punishing us for voting to leave is in no one’s interests. Furthermore,  Luyendijk’s extremism calls into question the whole purpose of Article 50. If the other countries feel it will be made into essentially a dead letter and that they will be irrevocably locked into something that they may decide at a later date they want to escape from, the EU may well end up facing a violent implosion a some point in the future.

Luyendijk is all aggression and spite when it somces to our country, but this is to hide the weakness of his position. In another piece for the Guardian, he admits that in his own country, support for the EU is plummeting. Ambrose Evans-Pritchard made the point over two years ago that “superstate rmonatics are on the back foot almost everythere.”  Of course, if the EU project isn’t about federalism, what is it about? If it is holding together simply through inertia, with the federalist idealism confined to a few people like Luyendijk, it is in grave danger indeed. The arch-federalist former MEP Andrew Duff has lamented that the EU may be destined to remain an association of states committed to “never closer union.” If he is correct, Brexit may well turn out to be a blessing. Our example may enable it to dismantle itself peaceably country by country rather than leaving an ugly mess behind like the Soviet Union or Yugoslavia on its demise.

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Brexit: the good and the not-so-good

As Harold Wilson reputedly said, one week is a long time in politics. Certainly last week, during which your regular scribe has been on holiday, has been particularly eventful.

The country has a acquired new Prime Minister without the need for any vote by Conservative Party members. Andrea Leadsom’s decision to drop out of the race  to succeed David Cameron cleared the way for Theresa May to take over and to appoint a new government.

From the Brexit point of view, three leading Tories who campaigned on the leave side have been given prominent posts  – Boris Johnson is the Foreign Secretary,  David Davis heads up the new Brexit department and  Liam Fox is the new International Trade secretary.

What is perhaps more remarkable is the way in which tne new Prime Minister has managed to unite seemingly all but a few hard-liners in her party. “Brexit means Brexit” she insisted.  There will be no rush to invoke Article 50 and she has already visited Scotland to try to win Nicola Sturgeon over, but there will be no second referendum, she affirmed.

The petition for a second referendum easily hit the threshold for it to be “considered for a debate” by Parliament. In fact, over 4 million people signed it.  However, the official response from the Foreign & Commonwealth Office was quite unequivocal:- “This was a once in a generation vote and, as the Prime Minister has said, the decision must be respected.” Recently, a survey by ComRes for the Independent and Sunday Mirror showed clearly that the four million signatories to the petition were out of step with popular opinion – only 29% of those surveyed wanted a second referendum as opposed to 57% who did not.

Of course, there is still the proposed legal challenge by Mishcon de Reya, which claims that the Government must pass an Act of Parliament before triggering Article 50. There is good reason to believe this challege will fail and the Lawyers for Britain group has produced an analysis of the issues involved, concluding that “The legal power to invoke Article 50 of the Treaty on European Union is in law a prerogative power vested in the Crown, which may be exercised by government ministers without the need for authorisation or consent from Parliament. There is no credible legal argument supporting the legal challenge being advertised by law firm Mishcon de Reya.”

This piece also challenged the widely-held assertion that the referendum  was merely advisory, saying that “The referendum result not merely authorises but positively mandates the government to exercise its legal power to give notice under Article 50.”

This subject will be hammered out in the law courts in the coming months and the Government will need to ensure it engages some top-quality lawyers to defeat the challenge from Mishcon de Reya, but on balance, it seems that if it does so, there is no reason for the Brexit process to be derailed in a court of law.

What is a more serious concern is the possibility that if we do end up using Liechtenstein as our model – in other words, re-joining EFTA in order to access the Single Market via the EEA agreement, but availing ourselves of  the restrictions on free movement available under Articles 112 and 113 of the EEA agreement – we could find ourselves sucked back into the EU at a later date through the back door.

Dr Richard North has undertaken a considerable amount of analysis on exactly what freedom of movement restrictions are available to us under the EEA/EFTA scenario and his observations are well worth reading, as he concludes that “there is nothing absolute, in principle, about freedom of movement. Therefore, there is no legal bar to variations being negotiated, given the political will. Furthermore, it is the case that the Union has been prepared both to negotiate and compromise on this issue.”  In other words,  statements by both Donald Tusk and Angela Merkel that access to the single market would require us to accept free movement of people are mere posturing and nothing more.

So the EEA/EFTA option might seem to have a lot more going for it than some people realised and it is the route which the EU itself would be happiest to see us take, but its advocates, including Dr North, have always stated that it must only be an interim solution. The big danger is the plan for a two-tier EU, the so-called “Five Presidents’ Report” which, if adopted, could find us in the EU’s “outer layer” – part of the EU political project but nowhere near the core decision-making body. This would possibly be triggered by the abolition of the EEA,  which is permissble under Article 127of the EEA agreement.

Of course, Iceland, Liechtenstein and Norway will not want to have the rug pulled from under their feet and would be very reluctant to find themselves drawn against their will into a project they have chosen not to join.

It therefore behoves those of us who campaigned for leave in the referendum to remain vigilant and to maintain our links with the “stay out” campaigns in these countries. Theresa May seems to have got off to a better start than some were anticipating, but there is a long way to go before we are finally and securely out of the EU. Groups like CIB are still very much needed to ensure that she and her ministers are held to account and Brexit will indeed mean Brexit.

Chairman’s Statement 11th July 2016

Since the referendum result, we have been holding informal discussions with friends and allies from left to right of the political spectrum about the best way to keep pressure on the government to deliver its BREXIT promise.

In the midst of such discussions on 11th July, we heard that that Mrs Leadsom had withdrawn from the Conservative leadership election and that Mrs. May would therefore be the new Prime Minister – and very much more quickly than expected.

Whilst many campaigners would have preferred a Brexit campaigner, Mrs May has reasserted her determination to deliver BREXIT and she now effectively has another two months to hasten the process. We intend to give her every encouragement in that.

Mr. Cameron was so confident of a “Remain” vote that he had forbidden the civil service to make any “Plan B” for leaving. So it would be ridiculous to urge the government into prematurely starting negotiations  before  it has had time to formulate its policy and negotiating strategy.

There is a period now when the Independence Movement  has an opportunity to make its views known to those in authority before negotiations with the EU start.  This has come rather sooner and more urgently than we expected.

 We have to bear in mind the parameters under which the decisions will be made and to be realistic. In the House of Commons  roughly half the Conservative party, the DUP and the Labour rebels were  for BREXIT. The other half of the Conservative party and everybody else was either pro EU or at least EU-acquiescent – an overwhelmingly Europhile House. The House of Lords is even more solidly  ( and rather defiantly) Europhile.

So the delivery of BREXIT will largely depend on the discipline of the Conservative party in keeping its Europhile MPs to its policy of leaving the EU. Some people have demanded a general election but we now have fixed term parliaments. This one has nearly four years to run – an adequate time for the government to deliver its promise and to have an independence settlement in place, up and running by the time of the next general election in May 2020. We in CIB want to do everything to ensure that this is what happens and that the terms are the most favourable possible from a trade point of view whilst establishing unequivocally that our country is definitively, irrevocably independent from the EU’s political project.

Shouting slogans will not do it. We have to focus our efforts in a disciplined way and apply them to the situation as it exists. This we are trying to do to the best effect but it is going to take some more time to establish a common general approach amongst the diverse Independence Movement.