A lot has been said in the media about Article 50 of the Lisbon Treaty, and there are many rumblings on the internet about another route to leave the European Union: repealing the European Communities Act 1972. So what's going on with this, how should the UK proceed, and what pitfalls do we need to be aware of?
I was in the European Parliament on Friday morning, just after the referendum. I was the representative of UKIP (well, technically, of the EFDD Group in the European Parliament) at a behind-closed-doors meeting of the political group leaders known as the Conference of Presidents and I saw for myself the reaction of the President of the Parliament and the other political group leaders. There's nothing that happened there that wasn't repeated in the Parliament chamber on Tuesday.
Schulz, the President of the Parliament, was predictably angry whilst former Prime Minister of Belgium, Guy Verhofstadt, was a little more subdued than usual. There was an atmosphere of shock, as though they couldn't believe what had happened. The British people have spoken, said Schulz, and now they must hurry up and get on with it and be gone. Indeed, all were adamant that Cameron should invoke Article 50 immediately. The big television screens played Cameron's resignation speech live, and they were all outraged that Cameron intended to allow his successor to invoke Article 50. Someone as pro-EU as Cameron couldn't bring himself to be the one to tell the EU formally that we're leaving.
The Parliament group leaders basically wanted the clock to begin ticking. Article 50 of the Lisbon Treaty is very short, and easy enough for anyone to find and read online. In particular, the process is described in 50(2) as:
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.
Here's the problem: the two-year countdown timer doesn't begin until the UK informs the Council of its intention to leave. David Cameron didn't do that on Tuesday, not formally. How is that decision taken? The answer is found in Article 50(1) of the Lisbon Treaty:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
The problem is that under UK law, a referendum technically doesn't have legal force. It's advisory only, despite the fact that 17.4 million people voted to leave the EU. Never in British history have 17.4 million people all voted for anything at all. The mandate is clear enough, but the technical implementation requires agreement of the Government/Cabinet. David Cameron doesn't want to do that. He doesn't want the clock to begin ticking.
So what happens next? Well, Cameron had hoped for a successor to be in place by October, a lengthy delay and one considered to be unacceptable by our EU colleagues. I find myself in a very difficult position: I want this done as soon as possible, but I support the UK's legal right not to be dictated to by Brussels over timescales.
The 1922 Committee, the committee of Conservative MPs which controls the process of a leadership election, has proposed a quicker timetable which will yield a new Prime Minister by September. This is still pretty slow, but a little better. Many people are becoming increasingly concerned: until Article 50 is formally triggered, are we sure that we can trust our government to actually follow through and leave the European Union? And the sooner we begin negotiations, the sooner we finish them - and the shorter the period of instability that could arise.
The frustration and delays caused by this (and the 2-year period) have caused some people to call for the other legal route to leave the European Union to be used: repeal of the 1972 European Communities Act. Under a long-established principle in British law, no Parliament may legally bind its successor. The 1972 European Communities Act enables the UK to be part of the EU. A future Parliament may not be bound by that decision, and therefore has the power to repeal that legislation and leave the Union.
The problem? Well, it's a nuclear option. All the Remain threats - 'what if there are tariffs', 'what happens about X, Y and Z where we need to co-operate with our neighbours' - would actually turn out to be true. Well, not all their threats. We still wouldn't have World War 3 or the end of Western political civilisation as we know it, but it would be a shock to the economy. A more pertinent problem is this: can you see both Houses of Parliament unilaterally repealing the Act? I can't. If Parliament won't do it, then whether you like it or not we're stuck with Article 50.
Personally I think that a more nuanced approach is best. We should invoke Article 50, now, and keep the repeal of the 1972 Act as a last resource, a button to be pressed only if absolutely necessary because it wouldn't be in either the UK's interests or the EU's interests. Whilst the EU are desperate to get this sorted as quickly as possible, we should get on with it. If you're selling a car, and you're desperate to sell, you'll be prepared to give the buyer a better deal. The European Union is selling. We should drive a very hard bargain.Suggest a correction