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EU Referendum: getting the strategy right

2016-06-27 07:09:13

With David Cameron skulking in No 10, declining to face the challenge of dealing with the aftermath of the referendum, and Corbyn's opposition party crumbling before our very eyes, the nation is currently without an effective government or opposition.

The ruling Conservative Party has shattered into warring factions and no one group has sufficient support to be able to elect a leader outright, while the plotters continue to position Alexander (aka Boris) Johnson as leader-in-waiting.

Meanwhile, Sky News's Faisal Islam "reveals" that Vote Leave doesn't have an exit plan. Having spoken to a Tory MP from Vote Leave, he learns that the plan does not exist. Faisal quotes the anonymous MP as saying: "There is no plan. The leave campaign don't have a post-Brexit plan".

The apparent absence of any such plan is adding to the uncertainty but, in terms of the media narrative, this is undoubtedly deliberate. Faisal knows full well of the existence of Flexcit which has had well over 80,000 downloads and is approaching the 100K mark. Yet he and even journalists who have previously mentioned it - are studiously ignoring its existence.

There is a certain wilful stubbornness about this, which defies rational expectation. Even MPs and others, anxious to block the ascendency of Mr Johnson, and who are thus determined to produce their own plans, are ignoring the material in front of them, preferring to reinvent the wheel, mostly in any shape but round.

We thus see all around us the beginnings of the debate that we should have been having before the referendum, but at so basic a level that issues we were discussing four or five years ago are now only just being aired.

But in their rush to come up with ideas and also deal with constraints of Article 50, we see people reveal that they have not even mastered the basics of the subject on which they are now presuming to instruct us mere mortals. More specifically, there are those who are seeking to avoid the use of Article 50, or by-pass it in some way or another, so that they can bring exit negotiations to a speedy and satisfactory conclusion.

You would think that, after 43 years of membership of the Communities, these people would have realised that the European Union is a treaty organisation, of which the United Kingdom is a part. And with that in mind, you might think that they would be aware that provisions for leaving the organisation are bound up in international and treaty law.

Therefore, in framing any strategy for leaving, you would expect people to understand that they must take full note of treaty, etc., provisions which must be taken as absolutes in determining the general framework of any exit strategy.

On that basis, it is a given that it is not in any way politically or legally realistic to frame any exit strategy which does not conform fully to the provisions of international and treaty law. Strategies really need to be road-tested for compliance, before they are given a public airing.

For the likes of the odious Johnson, Gove and many others, therefore, I am addressing the general principles which strategists should keep in mind. These essentially amount to five points.

Firstly, the right of a Member State to leave the EU lies outside the EU Treaties. The Treaties neither confer the right to leave or impose any conditions which might affect the decision. As Article 50 of the Treaty of the European Union (TEU) itself states:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
Article 50, therefore, simply recognises the state of the art. This Article applies only after the decision to leave has been made.

Secondly, the procedural choices on leaving are then limited by international law. We are not allowed pick 'n' mix options, dipping into different treaties to come up with our own desired mix.

We are bound by the principle of lex specialis derogat legi general (special law repeals general law), which is regarded as a fundamental tenet of international law. In short, whenever two or more laws or treaty provisions deal with the same subject matter, priority goes to that which is more specific.

Where Article 50 makes specific provisions for withdrawal, these take precedence over more general provisions, as in the Vienna Convention on the Law of Treaties (VCLT). We do not have the choice of using one or the other. Our choices are determined by lex specialis.

Thirdly, and subject to my further comments, until the Article 50 procedure is complete, the UK remains bound by the provisions of the EU Treaties, with all the rights, responsibilities and obligations.

As parties to the Treaties, we are obliged under international law to conform with their provisions. This general obligation is conferred by virtue of Article 26 of the VCLT, under the universally recognised provision of pacta sunt servanda: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith".

As one of the major guarantors of the writ of international law, it is inconceivable that Her Majesty's Government could countenance a breach of pacta sunt servanda. The international ramifications would be profound, with implications far beyond just relations with the Union and its member states. It would gravely weaken the international standing of the United Kingdom.

Therefore, inasmuch as we are obliged to resort to Article 50 by virtue of lex specialis, the principle of pacta sunt servanda obliges us to comply with its provisions.

Fourthly, and notwithstanding the above, any sovereign state, on grounds of its own choosing and disregarding international and treaty law, can unilaterally breach any treaty provisions or unilaterally abrogate any treaty to which it is party. However, while a state can exercise this absolute right, there are consequences to such actions.

No state can bind another outside the framework of international and treaty law (short of invasion and occupation or other limited means) and thus, if we place ourselves outside this framework, we have no means of controlling the actions of others states and nor can we entertain any rightful expectations of their actions.

With the EU Treaties in mind, there are no provisions within the Treaties to expel a member state but this does not mean that the UK cannot be expelled. Specifically, in legal terms, where any party intentionally or otherwise is in material breach of treaty provisions, the other parties are entitled to "invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part" (Art 60 VCLT).

This could apply if we choose to repeal or amend the European Communities Act, or take any other unilateral action before the conclusion of the Article 50 procedural steps. Action such as limiting the jurisdiction of the ECJ, or premature termination of EU budget contributions, which serve to disapply treaty provisions, could be deemed to be a material breach of the treaties.

In this event, the other parties may decide to terminate the Treaties as a whole. They would be entirely within their rights to do so. One should not need to set out the consequences to the UK. They would be catastrophic.

Finally, for those who would seek to negotiate with Member States without triggering Article 50, they must know that this is not a viable option.

In terms of any trade agreement, states could not negotiate because this is an exclusive EU competence. This mechanism is also ruled out because member states, neither individually nor collectively, could require the EU to give the UK access to its agencies or their ongoing programmes.

Furthermore, any agreements reached with Member States outside the Treaty framework cannot be binding on the Union. In this instance, the principle of pacta tertiis nee nocent nee pro sunt applies (a treaty binds the parties and only the parties; it does not create obligations for a third state) applies. This is set out in Article 34 of the VCLT.

Thus, while it may be valid to conduct preliminary (scoping) talks with contracting parties, these cannot be taken to be part of the formal withdrawal process.

Pulling all these points together, it should be noted that this is all seriously basic stuff. You don't have to be a Cambridge don, or a Monnet Professor to work this out. It is freely available on the internet and should be known to anyone embarking on devising an exit strategy.

What this all boils down to, though, is that there is no lawful means by which we can secure an exit without using Article 50. And only once the Article 50 procedure is complete can we think of repealing the European Communities Act. So clear is this that, at this stage in the debate, there should be no need for discussion. The matter should have been treated as settled a long time ago.

Therefore, I am beginning to get extremely irritated at the lack of preparedness, the lack of knowledge and the sheer amateurishness of leave campaigners. A lot of what I am seeing is in multiple breach of treaty and international law and could not therefore be countenanced by any responsible government. For campaigners to offer such poor work is, to be blunt, irresponsible.

We are getting to the point where developments are proceeding at a very rapid pace, with potentially dangerous consequences. We no longer have to time to spoon-feed people with Janet and John explanations, carefully couched so as to smooth over ruffled egos.

This applies especially to MPs, all of whom should be up to speed by now. They should know what they are talking about, rather than be producing amateurish tracts which show them to be way behind the curve. They have responsibilities to the public and they are not living up to them.

With that, we need people to focus on reality - to stop playing games. There should be no more discussion about whether Article 50 is optional. It is not. People need to accept that and prepare accordingly. Until and unless that is fully accepted, there is no hope of any progress.