20/04/2016
In what appears to be an attempt to extricate us from the two-year time limit imposed on negotiations by Article 50, "Team Gove" are squirming on the hook of their own making, as they promote the idea of a post-Brexit free trade area â which they have been told will take far longer than two years to negotiate.
The wheeze they have adopted â seen in its latest form in
Gove's speech, where the man seems to be hinting that we don't need to use Article 50 at all. After all, Gove tells us, Greenland left the EEC in 1985 before Article 50 was in force, on which basis it is possible to leave without recourse to the Article.
One really does wonder at this idea. Quite obviously, if the Article did not exist, then it cannot have been used. But now that it does exist, it is there to be used.
Nevertheless, there are still some commentators who suggest that, instead of Article 50, the UK should rely on the Vienna Convention of the Law of Treaties (VCLT), specifically Articles 65-68 which deal with treaty abrogation.
However, as pointed out in
Flexcit (with all the necessary references), this is not an option. Whenever two or more laws or treaty provisions deal with the same subject matter, priority goes to that which is more specific. This is the principle of
lex specialis derogat legi generali (special law repeals general law), which is regarded as a fundamental tenet of international law.
Given the wonders of Google, you don't have to take my word for it. Simply look up
lex specialis for yourself. A search will lead you into the wonderful Alice in Wonderland world of international jurisprudence. If you escape alive, then you will emerge with absolutely no doubt that this principle cannot be ignored.
Looking at it from an entirely practical perspective, one just has to imagine a scenario whereby the UK decides to leave the EU without invoking Article 50. In that event, we might communicate our intent to the European Council or even another body (the Commission, for instance).
But in that instance, one might expect the response of the Community to be a specific request to submit an Article 50 notification. And, until that was submitted, the "colleagues" could quite rightly refuse to accept any notice of intent, unless formally submitted in the right manner.
If then the UK chose to ignore Article 50 and, say, invoke the Vienna Convention, this might be treated as a unilateral abrogation. The Community would be under no obligation to undertake negotiations, and nor could it. Without Article 50 being invoked, there would be no legal base for such talks. Any outcome could not be binding, anything offered by the EU institutions could be challenged in the ECJ.
On both a legal and practical basis, therefore, it is inconceivable that a UK government could seek to initiate its withdrawal from the EU without invoking Article 50. Any other idea is simply a non-starter. And then, of course, the moment the Article is invoked, the two-year time limit kicks in.
This, of course, has Mr Gove and his Vote Leave supporters up the proverbial creek without a paddle. Chasing after the chimera of their European free trade zone, they will hit the two-year buffers and come grinding to a halt with no deal. They will face the prospect of an extension, in exchange for unanimous agreement on which they are forced to make all manner of unwelcome concessions â if indeed, an agreement is possible.
But then this is all part of the "fantasy option" that Vote Leave seems determined to foist upon us. In reality, it seems that the
EEA option is the only game in town, as Pete
points out, courtesy of the Centre for European Reform.
In my view, though, the only was the EEA option becomes tolerable is by making it an interim option, which brings us firmly into Flexcit territory. But Vote Leave have already decided not to adopt that, or
any plan. This isn't personal. They have rejected the idea of a plan so that the opposition can't attack it. So we end up having Vote Leave attacked for having no plan instead.
Actually, we're ending up with the worst of all possible worlds, with a frankly unbelievable offering, ill-thought-out and entirely unconvincing. Meanwhile, the
latest poll puts the Remains nearly ten points ahead, with Lynton Crosby talking of a "challenging set of circumstances".
Gove even seems to be disconcerting his own friends in court, with the
Spectator showing signs of deserting the sinking ship.
It notes that while Gove did brush over the idea that Britain could be a part of a European free trade area and that we would enjoy a relationship of free trade and friendly co-operation, "the lack of exact details seemed troubling". It goes on to say that his argument that we would have the capacity to trade freely with all the countries in the European union, "also seemed woolly".
Gove may have steered clear of being accused of dishonesty in the same way that Osborne was after the publication of yesterday's Treasury figures. But the lack of detail also shows the danger of going too far the other way and not providing voters with specific details. It's certain that there must be a happy medium between the two side's choice of argument, but neither Vote Leave or Remain seems to have managed to strike it so far.
Predictably, there is no comfort either in the
New Statesman, which has Michael Gove "gambling" as he rejects single market membership, the magazine taking the view that the Leave campaign's move offers its opponents new economic ammunition.
Gove, however, relies on the oft' repeated mantra that "our European friends" will quickly calculate that it is in their own interest to maintain the current free trade arrangements they enjoy with the UK. After all, Gove says, they sell far more to us than we do to them.
Again and again and again, though, the Vote Leave and others ignore the brutal realities of international trade and fail to appreciate that, while we need a formal agreement with the EU in order to gain access to their markets, the EU does not need any special arrangements to access ours. We could, therefore, see a situation where British exporters are blocked from EU markets, while the flood of goods into this country continues unchecked.
Here, we confront the sheer amateurishness of Vote Leave. They spend their time stumbling from one trap to another, even to the extent of Gove repeating one of Cummings's favourite examples of excessive EU regulation â the 2001 Clinical Trials Directive. Somebody should take Cummings into a corner and gently break the bad news to him. The Directive has been repealed and is being replaced by the
Regulation EU No 536/2014, the 2014 Clinical Trials Regulation.
But when you have an organisation that can't even cope with the idea that Article 50 is mandatory, anything goes. So when Mr Gove
tells us it's time to take back control, he really should be looking closer to home, and at how to bring his own bunch of amateurs under control.
