29 March 2017 will go down as one of the most significant days in UK history. In this article I examine three aspects of the way ahead, relating respectively to Article 50, the European Communities Act 1972 (“the ECA), and the negotiations now beginning.
A. The Legal Position Following Article 50 Notification
A point of no return has now been reached.
Article 50 of the Lisbon Treaty is dynamite; the Notification now given by the UK to the EU is irrevocable and the process started by it is unstoppable. That process now leads inevitably to this result (Article 50.3):
“The Treaties shall cease to apply to [the UK] 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 UK], unanimously decides to extend this period.”
It is extremely difficult, if not actually impossible, to envisage any circumstances in which such an extension would ever be agreed. This means that “the Treaties” cease to apply to the UK on or before 29 March 2019.
These are the same “Treaties” which the ECA 1972 automatically incorporates into UK law, which goes some way to explaining why the Government intends to repeal the ECA 1972 on the Treaties ceasing to apply – although the Grand Repeal Bill remains a legal nonsense as far as anything is yet known about it.
I return to this aspect of the matter below, but before that it is essential fully to understand the massive effect of the Article 50 Notification. As I pointed out at the outset, the effect is irrevocable and unstoppable; there is nothing that the UK Government or Parliament can do about it, and it is very important for all to now fully comprehend this. For example, there is no possibility of any “Second Referendum” (sorry, Tim); nor is there any way of holding out for a better deal if the negotiated settlement is somehow considered not acceptable (ditto, Emily). As the Government has rightly made clear, the deal will go back to Parliament only on a “take it or leave it” basis so all talk of a “meaningful” decision is, quite literally, meaningless.
Furthermore, discussion of a “Hard or Soft” Brexit, or any other sort of Brexit, is equally futile; in two years time, the Treaties will cease to apply – ‘period’.
Given that the UK authorities are now powerless in this respect, how much more so are the Blairs and Millers of this world. They can huff and puff as much as they like, and recruit as many remoaners to their cause as they like, and spend as much of their fortunes as they like, but nothing they can do will now change anything at all in this regard – not one whit.
The debate is, therefore, concluded – except for that old elephant in the room, the European Communities Act 1972, and its connection with the negotiations now starting. As it happens, it’s actually been quite helpful for the statute to remain in place until this moment, as it helped in validating the Article 50 Notification, but now that process is complete, the ECA must be repealed without delay.
B. The Urgent Need To Differentiate Between The ‘Acquis’ And The ‘Treaties’
The Prime Minister has stated, entirely rationally, that she wishes to negotiate the best possible deal with the EU on our exit from it, and that she will walk away from any deal that is unacceptable.
With a view to facilitating both of those objectives, it is now essential to repeal the ECA. We should recall that the Supreme Court has expressly confirmed that this statute can be repealed just like any other statute; and for this timely reminder, our express thanks must go to Gina Miller, without whose efforts this truth would have never enjoyed the most welcome emphasis so recently afforded.
The ECA is not entrenched, and its repeal has absolutely no effect whatsoever on the “acquis” – that is the body of regulations, directives, statutes, statutory instruments and other laws incorporated into UK law pursuant to obligations created by the Treaties (the Treaties of the European Union). Nor does the ECA’s repeal remove from UK law the Treaties which it has therein enacted.
The ECA automatically enacts the Treaties into UK legislation, and will continue to do so while it is not repealed. On the termination of the Article 50 process, the UK is released from the Treaties (while leaving the acquis entirely intact, of course); but if, God forbid, the ECA is still in force at that moment, then the ECA will promptly reinstate them!
The terrible problem which exists in Westminster is that the Treaties and the acquis have become conflated, with the result that there is to be an idiotic “Grand Repeal Bill” which will “replace” the acquis – but in reality, it will serve no purpose except repeal the ECA. This problem has been caused by Whitehall, which has wrongly elevated the ECA onto some sort of holy pedestal, whereas (thank you, Gina!) the legal reality is that it can be repealed like any other statute, of course.
It is, therefore, essential for the Government to acquire a clear and hard picture of the reality, and the “chalk and cheese” distinction between the Treaties on the one hand, and the acquis on the other. Further, the Government should recognise that as long as the ECA remains unrepealed, people such as the lovely Gina and her lawyers will be able to launch irritating attacks on the negotiation procedure which is soon to start, alleging that this point, or that, derogates from the “rights” afforded to the UK population by the ECA.
All tiresome nonsense of course – and so debilitating for the Government to have to repeatedly counter.
Perhaps more importantly, it is the ECA which gives EU law a primacy over UK domestic law in the UK. This means that while the ECA remains in force, the UK is negotiating under EU law. The repeal of the ECA would immediately restore sovereignty to the UK Parliament, with UK law trumping EU law for the first time since 1972; and the UK will find itself the master of its own negotiations. So, until the repeal of the ECA occurs, it is impossible for the UK to get the “best deal possible”.
For all the above reasons, it is essential that the ECA is repealed without delay – and those Westminster remoaners who’ve just discovered a voice regarding the “sovereignty of Parliament” would have to back such a move. The wheels of the negotiations ought to be wonderfully oiled by the repeal of the ECA – and there is no justification whatsoever for those negotiations to be complex, difficult or lengthy, of course.
C. Article 50 Negotiations – UK Opening Position
These six points should be expressed clearly by the UK Government at the outset:
- The EU guarantees the right of all UK nationals lawfully resident in the EU to remain in the EU in perpetuity and the UK guarantees the right of all EU nationals lawfully resident in the UK to remain in the UK in perpetuity. This provision must be agreed before any further negotiations take place. Once this provision has been agreed, the following are the terms and conditions which the UK proposes as the withdrawal agreement pursuant to the provisions of Article 50 of the Lisbon Treaty.
- All trading terms, conditions and agreements relating exclusively to the sale and purchase of goods and services between the UK and the EU shall remain wholly unchanged from those applying at present.
- All arrangements, protocols and agreements relating to co-operation between the UK and the EU concerning intelligence, policing, the prevention of terrorism, and all other such matters, shall remain wholly unchanged from those applying at present.
- Until the UK is released from the Treaties pursuant to Article 50 the payments at present made by the UK to the EU and those made in any way shape or form by the EU to the UK or to any person, company, institution, partnership, charity, or any other entity in the UK, shall continue wholly unchanged. In the event of any deduction or reduction of any sort with regard to the said payments by the EU, the UK will deduct the amount of such deduction or reduction from the said payments it makes to the EU.
- When the UK is released from the Treaties pursuant to Article 50 it shall immediately cease all payments to the EU and shall not pay anything at all to the EU thereafter.
- The UK shall not make any payment of any sort, or in any way, at any time, to the EU beyond those hereinbefore specified, and the EU will not make any payment of any sort to the UK or to any entity within the UK as aforesaid beyond those hereinbefore specified.
On the basis of the foregoing, the Government could save an immense amount of time and money. In particular, it would not need the counter-productive army of civil servants that it has been urged to form; a team of ten suitably qualified and properly motivated persons could complete the job in just a few weeks.