Archive for the 'Article 50' Category

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Richard Nabavi says EU leaders should remember European history

Sunday, November 19th, 2017

Napoleon and Queen Louisa at Tilsit

Excessive reparations aren’t a good idea

Angela Merkel might not, just at the moment, be giving Brexit her full attention, given the difficulty of converting the results of Germany’s September election into a viable coalition government. Nonetheless, Brexit is a big problem for her and for the other EU27 leaders, and one which cannot simply be ignored. European, and especially German, history has important lessons which they should heed.

In 1806, Frederick William III of Prussia went to war against Napoleon, who had invaded much of what is now Germany. It didn’t work out well for Prussia, which suffered a series of humiliating defeats. By July 1807 Prussia was on its knees, suing for peace. Napoleon’s terms, in victory, were draconian, including the complete dismemberment of Prussia, and huge reparations. Louisa, Frederick’s queen, met Napoleon in a personal attempt to persuade him to be more reasonable, but she was ignored. Prussia had no choice but to submit to Napoleon’s vindictive conditions, which shocked Europe. The Prussians never forgot the insult, even after they got their revenge at Waterloo.

In 1871 the boot was on the other foot. Prussia was now the arrogant victor, and France was outraged to discover that it was now treated the same way. The cycle continued, catastrophically, in the 1919 Treaty of Versailles, until it was finally resolved, but only after the destruction of much of Europe, in the magnanimity of the post-WWII settlement.

Of course, we do things differently today. The UK is not a warmongering state which has wreaked havoc across Europe, raping and pillaging huge swathes of the continent, and giving rise to an understandable, if counter-productive, thirst for revenge. Instead, it is a nation which has peaceably decided, wisely or unwisely, to exercise a right enshrined in Article 50 of a treaty formally ratified by 28 European nations. Yet the mindset of the EU27 seems to be worryingly akin to that of France in 1919: the UK is expected to pay reparations for having the temerity to exercise its right to leave the EU.

The UK has already agreed to continue its full payments for a two-year transition period after we formally leave the EU. That means that the EU will have had four full years’ notice before any drop to its budget from the day Article 50 was triggered, and nearly five years’ since the referendum. That should be enough to cover any residual liabilities, and give the EU27 time to adjust their financial plans, surely.

It might be that the relative negotiating strengths of the two sides are so uneven that the EU27 think that they will be able to extract their €60bn+ reparations for this slight to their amour-propre, and for the knock-on effects on their budget, just as Napoleon judged that he could ignore Queen Louisa’s appeal at Tilsit in 1807. That doesn’t make it a good idea for them to try to do so – especially if they offer nothing concrete in return and pitch their demands at a level which the Prime Minister, weak and buffeted on all sides, cannot accept. The shared interests of the UK and the EU27, and their close economic relationship, mean that this isn’t a zero-sum game; both sides will lose badly if it is mishandled.

Richard Nabavi



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Sir Robert Peel and the Corn Laws – the ghost that haunts Theresa May

Saturday, November 11th, 2017

There is a way to avoid a Crash Brexit – but it’ll destroy May, her party and trust

All parties of any age have ghosts that haunt them: spectres from disasters of the past so great that they dare not be forgotten yet dare not be truly remembered either. Indeed, they may not really be remembered in detail at all; their legacy today lying not in memory or even mythology but in the culture and behaviour that evolved to ward off the evil spirits; a culture buried so deep that it never really need be explained other than a short ‘that’s not how we do things here’ to the new and the naive.

    For the Conservatives, the darkest of several ghosts that stalk the party is that of Robert Peel. It was Peel who inadvertently created the Conservative Party by splitting, and splitting from, the Tories that preceded it over the issue of the Corn Laws.

That he did so on a point which was one both of principle (he was genuinely in favour of free trade) and of practical humanitarian assistance is a complicating factor but the reaction still probably finds an echo in the traditional Conservative scepticism of ideologues. What the split also did was hand the country to the Liberal coalition for most of the next thirty years.

Why does this matter? Because Theresa May could well find herself in something of a similar position to Peel. Fortunately, the stakes won’t be quite as high. No matter how hard Brexit is, millions are not going to die. Even so, a failure to reach an Article 50 agreement by 29 March 2019 – a date likely, and foolishly, to be set in stone by legislation as the deadline for withdrawal – would almost certainly prompt a severe recession as the dislocation to the economy hit home.

Unfortunately, there’s an element of crying wolf here. Remain over-egged their predictions of what voting out would do, and some have similarly over-egged their predicted consequences from an orderly withdrawal. A disorderly withdrawal, however, is something very different. Trade would be seriously interrupted, yes, but the effects of a shift overnight to a whole new regulatory regime without that regime being properly prepared for and implemented would go far wider, touching directly or indirectly almost every aspect of daily economic life, parts of which could seize up.

This is, obviously, something the government wants to avoid. However, it’s not obvious that it can. Its self-imposed conditions, on the ECJ’s role and on freedom of movement, run directly counter to the EU’s red lines on the integrity of the Single Market, the need for a frictionless Irish border and how any deal on expats’ rights is enforced. There is of course also the question of the divorce bill – though there at least the dispute is down to details rather than principle, even if the nature of those details differs by tens of billions of pounds.

Might the EU move? It’s possible. On expats’ rights, there should be scope for compromise and the EU really ought to be able to roll back on its insistence that the ECJ guards how the deal is implemented in Britain. Mutual recognition of courts within their jurisdictions ought to be possible. Ireland is another question though. Not only is the EU red line meaningful there, there will be pressure from the DUP, as well as within the Conservatives, to ensure the integrity of the UK isn’t undermined by placing borders between Ulster and Britain.

That conflict could be resolved if Britain remains in the Single Market but that then has to run counter to the insistence on Britain regaining sovereignty on immigration and legislation – promises that May has made.

The PM made them for good reasons. At one level, it’s the spirit of what the voters backed. For Brexit to mean Brexit, and to be seen to mean Brexit, that means not just leaving the legal construct of the EU but leaving behind its restrictions and duties (and, inevitability, its benefits too). Staying in the Single Market would leave precious little behind. But for those same reasons, that same policy is currently holding together the Conservative party both in its support and in parliament.

Which is where we come back to Peel’s ghost. As with the repeal of the Corn Laws, there is a majority in parliament for a soft Brexit; it’s just that it involves gaining the backing of the opposition over the majority of the PM’s own party, with a very strong chance of the same result, in both the short and the longer term (Vince Cable can rest easy: the ‘same result’ is about the opposition, not the modern-day successors to the Whigs). But the cost to the PM and her party would be grievous and the benefits may be overrated.

Will May feel obliged, if the negotiations do go down to the wire, to sign whatever’s on offer so as to prevent a Crash Brexit? If she does, she would no doubt lose her leadership and, knowing that, could only propose it if she were willing to go all the way.

Which I don’t think she would. We all know that she’s in a weak position, pulled by the EU in one direction – the government has done pretty much all the conceding so far – and by her Eurosceptics on that other. Ultimately, the pull of her MPs will be the stronger but either way, she has to follow, not lead.

What that means is that a Crash Brexit is a very very real possibility. The red lines on both sides always meant that was the case and the likely writing into law of the UK’s deadline for leaving only increases that chance. But while Brexit may break many things, the party system won’t be one of them. Not beforehand, anyway.

David Herdson





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For the 3rd successive month YouGov Brexit tracker has “wrong to leave” in lead

Friday, November 10th, 2017

The chart shows the latest YouGov Brexit tracker in which the question is whether those polled think that in insight it was wrong or right for Britain to have voted to leave EU.

This is not asking how people would vote in a new referendum or whether the Brexit process should be stopped. Keiran Pedley has suggested that the use of the word “wrong” might be influencing the response which is why this result can be different from other polls that ask about Brexit.

No doubt many remainers take the view that the vote to Leave was wrong but believe that the decision has been taken and that we should proceed.

Like in all polls the phrasing of the question can have a big impact.

With a tracker the same question is asked in the same manner every time so we can make valid comparisons.

Because the movement with each new poll is relatively small and within the margin of error it is important to look at the overall trend which is why I produce the chart.

Right to Leave last had a lead in August while TMay was still on vacation.

Mike Smithson




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The Chief Whip who failed to stop LAB’s tricky Brexit motion last night gets promoted

Thursday, November 2nd, 2017

Williamson moves up sharply in the leadership betting

The main job of the Chief Whip is, of course, to ensure that the government’s business gets through the Commons – a job made much more challenging following TMay’s failure to hold onto enough seats on June 8th to maintain the Tory majority.

Last night the government suffered what could be a problematical defeat on a Labour motion on the Brexit impact effect on key sectors – information that it has been trying to keep confidential. LAB drafted the motion in the form of a “humble address” to the Sovereign which makes it more difficult to ignore.

Even arch-Brexit and 2nd favourite to succeed Mrs May, Jacob Rees-Mogg, declared that it would be “a breach of privilege” for the government to ignore the motion which was passed without a vote after the Government said they would not oppose it. Ministers argued, however, that it wasn’t binding.

Surely the Chief Whip should have been able to produce round up enough Tory MPs to at least force a division rather than end up with this mess.

The promotion of Williamson to Defence Secretary is quite remarkable giving he has had no ministerial experience. It looks as though the beleaguered PM is surrounding herself with loyalists.

Williamson is now a “runner” in the leadership betting and has moved into 10/1 with some bookies.

Mike Smithson




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From what Davis said, we need to think about a Limbo Brexit

Saturday, October 28th, 2017

If talks go down to the wire, ratification will go beyond them

Brexits are like fairies. There are good ones, bad ones and if you say it with enough feeling, they might not exist at all. What we haven’t heard much of so far – though given David Davis’ comments at the Select Committee this week, we should have done – is the Limbo Brexit.

What is that, you might ask. In a somewhat numerically-challenged observation, Davis claimed that a deal might not be done until “the 59th minute of the 11th hour” (which would actually be 10:58 – you start counting minutes and hours at zero, unlike days and months). Leaving that pedantry aside, the more pertinent point, as he acknowledged in the committee, is that the deal in the Council would not be the end of the story, even though time would have run out.

Once a deal is reached, the European Parliament has to ratify it, as then does the European Council – the prime ministers and presidents of the member states. Davis noted that the Westminster parliament would get a say before the EP but in these circumstances it would be after 29 March 2019. That presents a problem.

Article 50 clearly lays out the timescale for leaving. It is in fact only the deal that need be agreed within the two years. As long as that’s done, it doesn’t matter procedurally if ratification of it goes over the deadline, as Davis suggested was possible – the deal still stands and can be implemented.

Which is all very well but by that point, Britain might well have crashed out of the EU under the Article 50 terms – an unratified agreement cannot be implemented and even if the votes are taken within, say, a week, that still means there’d be a nasty Limbo Brexit period when Britain was neither a member of the EU nor party to the exit agreement. Anything that happened during that time and was usually subject to EU rules would find itself in a strange legal world.

There is something of a get-out. The negotiations are currently being handled for the EU by Michel Barnier and his team, as no doubt they will through to near the end. However, as with the decision on whether to begin trade talks, the final details will almost certainly be agreed by the European Council. That body – and only that body – can agree to extend the exit period long enough to cover the ratifications. If the talks went down to the wire, one clause to the agreement could be to grant an extra month to allow the parliaments to ratify it before the deal came back to the Council for a final rubber stamp.

As an aside, one factor not being sufficiently closely monitored is the opinion of the European Parliament. Guy Verhofstadt has been vocal and quite critical of the UK’s approach to the talks. While he can’t single-handedly determine the Parliament’s opinion, nor should we take it as given that the MEPs will simply sign off whatever’s put in front of them. They probably will do and they certainly should do if the member states have agreed it in principle but the EP has its own sense of self and if it’s not treated with respect, we can’t assume it wouldn’t make a very grave error.

However, even if it does play ball, the kind of brinkmanship Davis was contemplating would have real world consequences. While it might end up being the case that a deal goes through providing for a smooth transition in legal terms, that won’t be how it’ll look to business, who’ll need to prepare well in advance for all possible outcomes. If there’s nothing sorted by March 2019 – or probably by December 2018 – the assumption ought to be that there’s a high chance of a Crash Brexit.

My guess is that the exit deal will probably be agreed at the December 2018 summit. This won’t be the final deal but will provide for both a smooth transition and a framework for continuing talks to secure the final settlement, with time for both Westminster and Strasbourg to vote on what’s been agreed. If talks go on after that, the chances of either no deal or a Limbo Brexit increase rapidly.

David Herdson





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“TEN COMMANDMENTS” poll finds LD voters most relaxed about murder with Leavers least concerned about lying

Thursday, October 26th, 2017

It’s YouGov’s cross-breaks which caught my attention

That’s all fine but dataset from YouGov, helpfully, includes party and Brexit cross-breaks so we can see if there are any particular distinctions for different parts of the electorate.

Although the sub-sample size for the LDs is small the fact that they are strikingly out of line on murder and and stealing to be worth highlighting.

The same goes for Leave voters who seemed more relaxed about adultery and telling lies.

Have fun examining the cross-breaks for yourselves.

Mike Smithson




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Its 5/4 at Ladbrokes that there’ll be no deal on Brexit

Thursday, October 19th, 2017

Ladbrokes has some new markets up on the outcome of the Brexit negotiations which look interesting but I’m not sure if any of them offer any value.

The options are above with 5/4 being offered on no deal being agreed before the Article 50 deadline 18 months on from now. Note the way the bookie is defining what a deal actually is.

The 4/1 on Britain still being a member of the EU at the end of 2019 and whether there will be a third Brexit referendum (the first was in 1975) before the end of 2019 both could come good but the odds are not long enough for me to be tempted.

There is a huge amount likely to happen in the coming months both in Brussels and at Westminster. The Government is going to struggle with its “Great” reform bill in both the Commons and the Lords and things could move in any direction.

At the moment we cannot say with any certainty who the next prime minister is going to be and whether indeed the Tories will still be in power at the due date.

Mike Smithson




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Coming back to EU – can A50 be revoked?

Friday, October 13th, 2017

Picture: The justices of the CJEU

Alastair Meeks, who correctly forecast the outcome of the Article 50 Supreme Court case, gives his view if Article 50 is revocable.

Britain is not going to be rescinding its Article 50 notice.  The Government doesn’t want to and nothing in the current progress of negotiations is bringing Britain back closer to the rest of the EU.  All of which makes a lot of the speculation about whether Britain could revoke that notice rather theoretical.  Yet like malaria the idea keeps coming back, resulting in lawyers breaking out in a delirious fever.

Why does it keep coming up?  Two unconnected groups are fond of the idea.  The first group are your actual straight-down-the-line irreconcilable Remainers who have always hated the idea of Brexit.  The other group are an assorted bunch of pragmatists who are horrified at what a balls-up the Government is making of the Brexit negotiations and who want to withdraw the notification so that Britain can take stock of how it will go from here.

Hadn’t all this been sorted out by the Supreme Court earlier in the year?  Actually, no.  The Supreme Court did not have this point argued before it.  Gina Miller argued that an Article 50 notice was irrevocable because it suited her to be able to say that if the Government had the power to issue an irrevocable notice, Parliament couldn’t undo its act.  The Government chose not to argue the contrary, presumably because the point might well then have been referred to the CJEU, which would have been incendiary for the stauncher Leave supporters.  So the point went by default.

Since then, the draftsman of Article 50 of the Treaty on European Union, Lord Kerr of Kinlochard, has claimed that his view was that a notice under Article 50 was intended to be revocable.  Theresa May has fanned the flames by declining to comment on whether the Government has received legal advice to this effect.  So the point refuses to die.

Like any lawyer, ask me a question and I’ll give you an answer (for a price), even if the question is theoretical.  This is quite a pure question of law, turning on the interpretation of relatively few words.

Article 50 provides (so far as is relevant):

“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

  1. 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…
  2. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period…
  3. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

There is a curious point to note here which has not been given much coverage in the press.  The Article 50 notice is not really the important step here.  The important step is the member state’s decision to withdraw.  Once that decision has been made, the member state is under an obligation to notify the European Council but the notice is a procedural formality (though consequences flow from it as we shall see).  The question, therefore, is not whether the notice can be unilaterally withdrawn but whether the member state can unilaterally undecide to withdraw before it has left.

This is important in relation to one regularly aired argument, which is that Article 68 of the Vienna Convention allows Britain to withdraw its notification.  If the vital step is not the notification but the decision, the provisions of the Vienna Convention that concern the withdrawal of such notification would not by itself be of relevance for bringing the process to a halt.

(In any case, Article 68 is limited to withdrawal notifications made under Article 65 and 67 of the Vienna Convention, which are precisely set out, and it is far from clear whether these include the current circumstances.  Finally, not all EU member states are signatories to the Vienna Convention, so unless this provision forms part of customary international law – debatable – it is of no relevance anyway.)

Regardless of the applicability of Article 68 of the Vienna Convention, a revocation could not be issued if the member state had not genuinely decided, in accordance with its constitutional requirements, to change its mind.  It would not be a genuine revocation and it would be inconsistent with the member state’s notification duty under Article 50(2) of the Treaty on European Union.  So any attempt by pragmatists to reculer pour mieux sauter would in my view be clearly invalid and ineffective.

So much for correcting the balls-up.  What of the irreconcilable Remainers’ hopes?  What if Britain saw the light and changed its mind?

There is a short point which I think answers this question, which is simply to apply the straightforward meaning of the words of Article 50.  Article 50(3) of the Treaty on European Union provides that: “The Treaties shall cease to apply to the State in question from… two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”.  Nothing in Article 50(3) suggests that any purported revocation notice will affect this timetable: the notification has set the clock ticking and a revocation notice doesn’t stop it.  Once the self-destruct sequence is initiated, the ship’s computer will accept only a unanimous extension (or an amendment under the Treaty’s provisions to vary its effect).

Another provision of the Vienna Convention, Article 31, provides:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

I’m confident that this does form part of customary international law.

My suggested interpretation would seem sensible and practical in the context of a complex multilateral treaty of great scope and depth.  The scope for disruption to other member states and the EU of allowing countries to issue withdrawal notices and rescind them on a whim would be unjustifiable.

It is worth noting that on this analysis it is irrelevant whether Article 68 of the Vienna Convention applies.  Whether or not Britain has the power to issue a revocation notice, it is ineffective to stop the Treaty on European Union timetable.

So while I have major qualms about contradicting the draftsman of Article 50, in my view it seems to me that the process cannot be unilaterally unravelled by Britain.  It has gone over the edge of Niagara in a barrel.  It cannot swim back upstream unless the rest of the EU decides to intervene to help.

Alastair Meeks