Richard North, 27/04/2016  

With less than two calendar months to go before polling day, it is nothing less than alarming to find that fundamental questions relating to Brexit are so far from being settled by Vote Leave that we're not even past first base.

This disturbing insight comes to us via Breitbart London, which has a copy of a letter from Bernard Jenkin MP, Vote Leave director.

Dated 21 April and addressed to a constituent, it rejects the use of Article 50 in the event that we vote for Brexit. Instead, Jenkin argues for negotiating with all the other 27 member states at government-to-government level. The result, he says, "could take the form of a new treaty, which would mean the UK would not need to resort to Article 50".

In the event that there is no agreement, Jenkin adds, "the UK Parliament can pass its own legislation to suspend the application of the EU treaties, but it would be preferable to do this after an agreement with the other EU member states has been reached".

Here, one would like to think that Mr Jenkin is applying the considered weight of legal advice and political experience, coming to a sound conclusion based on the facts on the ground, with due regard for EU treaty and international law.

However, there is no evidence that there is any legal weight behind these scenarios and nor is it possible to adduce any circumstances where they might realistically be applied.

In the first instance, Jenkin is making the same error (although perhaps unwittingly) that Mr Cameron has made in agreeing his supposed treaty. He has neglected the provisions of Article 61 of the Vienna Convention on the Law of Treaties, and the dictum res inter alios acta vel iudicata, aliis nec nocet nec prodocet, where two or more people cannot agree amongst each other to establish an obligation for a third party who was not involved in the agreement.

What these amounts to is that the member states, even if they agreed to carry out negotiations (which seems unlikely), would be acting inter-governmentally (which Jenkin acknowledges), which means they could not bind the European Union – which has its own, separate legal identity – to the terms of any agreement.

The inescapable bottom line, therefore, is that, if there is to be an exit settlement, the negotiations have to be with the EU. And that means working within the constraints of Article 50.

Jenkin, however, hasn't finished. In the event that the member states won't deal (which, of course, they can't), he would have Parliament pass its own legislation to suspend the application of the EU treaties.

Assuming the government would be mad enough to do this and that a Parliamentary majority could be gained, this would amount to a unilateral abrogation of the Treaties. The consequences of this would be so disastrous that one struggles to believe that an MP could even propose it.

What we have to take from this, therefore, is that the Jenkin scenarios are non-starters. There is no practical or legal alternative to Article 50. Yet, despite what should be an unarguable issue, and one settled long ago, Jenkin is not on his own. We have Gove, Lawson and Cummings all coming together to reject the Article.

Behind this, one suspects that Vote Leave officials are aware that the initial two-year duration of Article 50 negotiations makes agreement on a comprehensive free trade agreement impossible. David Cameron's jibes about the seven years taken to agree the Canada deal (which still hasn't been ratified) have hit home.

To get a deal inside the two-year period is going to require compromise – which Vote Leave cannot afford to give, as they haven't thought through the implications. Thus, to get them off the hook on which they have impaled themselves, they are constructing ever more phantasmagorical scenarios to release them from the reliance on Article 50.

Sadly, these are not the actions of adults. We are seeing an almost childish level of naïvety from a group of people who are demonstrating an increasing inability to deal with reality – all of which is creating an intellectual quagmire at the heart of the leave campaign that prevents it even beginning to present a coherent exit plan.

What is terrifying, though, is that this naivety is shared by most of the political class and, if their current work is any guide, the House of Commons Foreign Affairs Committee.

In an extraordinary shoddy and superficial report published yesterday, laughingly under the title: "Implications of the referendum on EU membership for the UK's role in the world", the MPs manage to offer an analysis of the "day after a vote to leave…" that would shame a reasonably bright fifth-former.

Recognising that two-year period immediately after the referendum would present "challenges", they then manage to elide the Norway and Swiss options, treating them as if they were essentially the same.

In exchange for access to the single market, the MPs say, "both the EEA states and Switzerland must pay into the EU budget and adopt a large proportion of EU law - including free movement of people - but they have no say in how those laws are made".

If this is as far as they have got, then the learning curve hasn't even started to lift off the horizontal, leading to a monumental parade of ignorance as they pontificate that: "From a UK perspective, these models would thus bring few benefits in terms of repatriating sovereignty over law-making and immigration, while still imposing many of the costs associated with the status quo".

Yet, having already recognised the "challenge" of the two-year period, they then go on to say that, "rather than following these existing templates, the UK ought therefore to opt to pursue a bespoke arrangement, including a comprehensive Free Trade Agreement (FTA)…".

Amazingly, bringing ignorance to new heights, they actually tell us that:
Detailed and possibly lengthy negotiations between the UK and the remainder of the EU would be required in order to achieve a deeper settlement than the terms of the European Free Trade Association (EFTA), which offers tariff-free trade on goods but - crucially, from a UK perspective - excludes services.
Seemingly, they are unaware that EFTA does not actually have a trade relationship with the EU. The deals are between the three EFTA states, Norway, Iceland and Liechtenstein, as in the EEA Agreement, and between Switzerland and the EU, agreements that were concluded outside the framework of EFTA.

Nevertheless, they conclude that "it is difficult to predict with certainty the type and terms of the new relationship between the UK and EU after a decision to withdraw".

In their view, "it cannot be assumed that the UK would retain full or partial access to the single market if it left the EU, or that it would wish to do so given the restrictions and costs that such an arrangement could potentially incur".

However, it is probable that, "due to the strong economic imperative, the UK and EU would seek to negotiate some form of trade deal as quickly as possible in the light of the political climate".

Then, we are informed that: "the Government should recognise the probability of no mutual interest deal being concluded within the two-year notice period. If no deal could be concluded within the two-year notice period, the UK would move to standard WTO relationship terms and would then need to decide which of the 6,987 directly-applicable EU Regulations would need to be replaced by UK law".

And then, in a text that should be engraved on a brass plaque to mark the nadir of political intelligence in the Commons, the MPs gravely intone:
It is, however, a reasonable assumption that in the medium term a suitable mutual interest deal would be concluded. It is possible that the transition process could be fully co-operative and disruption minimised, but this would depend on how well EU countries respond to a perceived rebuff by the British electorate. As time heals, mutual interest will progressively trump any short-term hurt feelings and both the climate for, and interest in, agreement in the mutual interest would improve.
We are actually paying good money for this extruded verbal material, to achieve nothing but a further attestation of the capacity of our elected representatives to waste time and money.

Whether by MPs or the official campaign, we are so badly served in this referendum that the issues have been submerged in that self-same quagmire. Not for nothing does Mr Brexit argue that the political game playing and personality politics of the referendum campaign is snatching the goal away from us.

When this is all done and dusted, he says, there needs to be a reckoning. We could not even begin to disagree.

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