The government has just published a report on the implications of leaving the EU in which it is suggested, three times, that invoking Article 50 of the Lisbon Treaty “is the only lawful way to withdraw from the EU”. The paper reads as a counsel of despair to buttress this government’s ‘Project Fear’ rather than a calm and reasoned approach to a possible Brexit.
It asserts further that it would “be a breach of international and EU law to withdraw unilaterally from the EU by simply repealing the domestic legislation that gives the EU law effect in the UK” – a clear reference to the European Communities Act 1972.
But if a ‘Remain’ vote is the result of the referendum then amendment followed by repeal may in the end be the only route to restore a measure of self-government which has been lost to us for so long.
Take as our starting point a laudable statement by the Prime Minister, and one which is highly significant. He said:
National parliaments are, and will remain, the true source of real democratic legitimacy and accountability.
Indeed, but our very membership of the EU is a denial of this statement, and clearly there must be a deliberate policy on the part of the PM not to use Parliament’s existing power to amend and repeal the ECA as a means for Brexit. Why? Because he knows that process would be, in effect, the most immediate route to Brexit.
There are many reasons why the ECA route is not only possible but necessary as initially it would reverse the apparent impotence of government to function fully as government whilst remaining in the EU. Amendment, followed later by repeal can lance this festering boil. Here are a few:
1. Symbolically it would represent a huge and significant statement of intent in taking the first necessary step to break EU hegemony over our national life and laws, but initially without taking what to many would be the drastic step of formally leaving the EU.
2. But we need more than symbols, for it would re-assert the principle of the primacy of our parliament over the assumed primacy of EU authority to make our laws, and restoring public confidence in our broken political system. It would renew a much needed sense of national self-respect again as legislative power returns to Westminster. Elections will then mean something.
3. It would re-assert the fundamental democratic principle that we elect our MPs to actually govern which is the sole reason for holding elections. Nobody actually elects an MP or government only for that power to be passed to another body.
4. Amendment would ensure a legitimate and relatively ‘quiet’ process of Brexit by two stages as a UK government firstly exercised its right to determine what policies and laws to adopt on the basis of national interest alone. In turn it would empower government to pursue policies mandated by the electorate in a General Election instead of the present obligatory and automatic transfer of EU laws into domestic law via the Act.
5. This process could then act as a natural mechanism towards full Brexit, and then on to our application to formally leave the EU. This can be via Article 50 of the Lisbon Treaty – but without any compulsion to complete a new trade deal with the EU over a set two year period. Invoking Article 50 in full under terms dictated by the Commission is very risky as many critics point out. Alan Renwick of the Constitution Unit writes:
“Article 50 is not really a process designed to facilitate the exit of a nation state from the EU – it is an attempt to build a process that is so risky, politically and economically, that no country would dare invoke it. …… While a deal can be struck by qualified majority under Article 50, some of the content that the UK would want for such a deal – including aspects of a free trade agreement – would need to be ratified by all member states.
Do we really want that?
6. Amending the Act therefore would give Britain time, and more important, freedom to explore without delay bi-lateral trading agreements with many other countries, including the EU, but without the constraints of the Article 50 agenda. Why should we be bound by those constraints with all their potential for protracted complications and entanglements? After repeal of the Act, but outside EU membership, the UK would be in a very strong position for success in all future trading negotiations.
7. Amendment would render irrelevant Mr Cameron’s projected new Constitutional Court, because Parliament would have restored powers to reject all unwanted EU laws which conflict with our Constitution. Concurrently this would necessitate government ensuring by a further Act to give our existing Supreme Court enhanced status and authority over all other courts, including the ECJ and the ECHR to meet and answer inevitable legal challenges.
8. We can then begin the process via our normal Parliamentary process of repatriating those many areas of policy which Mr Cameron failed to ask for in his negotiations and which remain under EU jurisdiction.
If we vote ‘Remain’ in June then amendment becomes an even more urgent issue as the Commission would regard such a vote as a mandate to extend its reach even further over the UK with impunity. It would rightly conclude that the will of the British people had been finally broken and with it confidence in their own democracy. Strong or sustained opposition from any quarter would then be very unlikely and even more so if the UK is ignominiously relegated to associated membership status but still obliged to incorporate EU law into our own under the Act as at present.
In that scenario then, amendment and repeal of the Act would probably be the only route to extricate the UK from the inexorable flow of EU law for the foreseeable future.