The government says that it is preparing the way for our negotiations to leave the EU, but that these will be long and complicated, and the Article 50 notice cannot be delivered until the time is right. This position looks awfully like prevarication and foot-dragging whilst they are desperately looking for some excuse to overturn the referendum decision.
At the moment, our government is allowing the EU to call the tune, and these proposed negotiations will start from the position we are in now and negotiate some sort of agreement from that point. I believe that this is the wrong attitude and we should begin negotiations from a different point.
What I believe our government should do is to deliver an Article 50 notice immediately, and say to the EU that in two years time we will return to our pre-1973 position no matter what, and that we are willing to negotiate from that position only. Tariff-free trade would be a prominent subject for negotiation, as would be financial services access, but what is not on the table is free movement of EU citizens to the UK, control of our borders, EU control of our fisheries, or any EU interference in our law making or who we do deals with. There will be a whole lot of horse-trading that can be done on a wide variety of subjects, but if we decide not to discuss anything, then it remains in the position it was in before 1973, and it will be our decision what we decide to discuss.
EU law consists of the Treaties, which themselves authorise the creation of Regulations, Directives, and Decisions. A Regulation is a law in itself and is directly effective throughout the EU. A Directive is a bit more sneaky, and has to be incorporated into the national law of all member states, but the member states get to choose how they do it. A Decision is directly effective on those to whom it is addressed.
As far as the EU law that is already in use here, our position should be that we will accept the effectiveness of all the Regulations, Directives, and Decisions that are in force at the time of the Article 50 notice, and the UK Act of Parliament implementing this should specify the specific numbers of the last legislative items to be effective. The Act should also contain a sunset clause that specifies the date when any EU law loses its effectiveness in British law, unless it has been incorporated into British law by Parliament. This will give the government a set time to review EU legislation and decide whether to keep it, amend it, or repeal it.
The other thing that the Act of Parliament must do is to repeal the European Communities Act 1972, which is the Act that makes EU law effective in the UK. Without this repeal we are still under the heel of the EU. The problem will be to get the Act through Parliament, as most of the current MPs are pro-EU and are likely to try and thwart any attempt to leave. The government could try and counteract this by using their small majority to repeal the Fixed-Term Parliaments Act 2011. This will then allow them to call a general election whenever they choose, so what they could then do is say to all MPs: “We are going to call a vote on the Act that will take us out of the EU. If this vote fails, we will then call an immediate general election, and you can all answer to your constituents for how you have voted.” Many tories will be looking over their shoulders at the UKIP vote last time and will vote for the Act in order to retain their meal tickets. Some of the biggest referendum votes to leave were in the Labour heartlands, and a lot of Labour MPs may have a “Road to Damascus” conversion to opposition to the EU if they think that their seats on the gravy train are at risk. A general election would put moderate Labour MPs at risk not only from UKIP, but also from deselection by their branches in favour of loony lefty Corbynistas, if Momentum has infiltrated those branches.
Whatever happens, our government needs to do something to implement the referendum decision as a matter of urgency. We need to jump through the Article 50 hoop as well as repeal of the European Communities Act 1972 because Article 50 will ensure that there are no disputes under international law over things outside our borders, such as our fisheries.