Tag: Article 50 of the Lisbon Treaty

The Tories Brexit debacle

By Daniel Margrain

 

Theresa May’s announcement that the decision to trigger Article 50 of the Lisbon Treaty at the end of March at the latest, by-passing parliamentary debate, is a kick in the teeth for all those campaigners who argued that to do so would undermine due legal process in the wake of the passing of the 2015 Referendum Act. As I stated previously, in legal terms, the referendum decision to leave the EU was advisory not mandatory. What happened following the vote was therefore a matter of politics, not law.

However, the governments formal position was that it had no legal obligation to consult parliament on invoking Article 50 which gives Britain a two year period to negotiate the terms of its departure and insisted that every word of its defense had to be kept secret. But on September 23, crowdfunded group People’s Challenge lodged a court application to allow it to publish the governments argument. Six days later, the court ruled that the government must disclose the legal arguments on the procedure of Article 50.

The governments announcement to definitively invoke Article 50 while ignoring the rest of the process that Parliament set in train when it passed the 2015 Referendum Act, seems to be predicated on its ancient (archaic) use of the Royal Prerogative to trigger the process of the UK leaving the EU in the interest of the Government’s sectional and party political interest.

Indeed,  Teaching Fellow in Public Law and Jurisprudence at University College London, Thomas Fairclough concluded“it will be the Government, using the Royal Prerogative, who will decide if/when to trigger the Article 50 mechanism and take the United Kingdom out of the European Union.” By using the Royal Prerogative to trigger Article 50 of the Treaty of Lisbon this Government will be sweeping away rights at a stroke of a pen without the proper scrutiny of and a final decision being made by our Sovereign Parliament.

In announcing her proposed deadline for the triggering of Article 50 now, PM Theresa May said there will be time for preparatory work from all parties involved, which she hopes would lead to a “smoother process of negotiation”. May said that while she was willing to announce key landmarks in the Brexit timeline, she did not plan to continue sharing details during the negotiation process.“There’s a difference between not giving any commentary and giving a running commentary,” she said.

The lack of government transparency is bound to have implications in terms of whether foreign companies decide to invest in the UK. It’s incumbent on the government to be as open and transparent as possible in order to create the necessary conditions to allow companies to make an informed choice as to whether or not to invest in the UK.

According to the Telegraph, bosses of several of America’s banks and corporations have warned May that they will shift operations into Europe unless she can provide early clarity on the future shape of UK-EU relations. If the banks go, there will be virtually nothing left that the UK specializes in other than selling WMDs to whoever is prepared to meet the governments asking price, or making cars to sell to the Germans, Indians and Japanese.

The bad news was delivered to May in New York in a meeting with US investors, presumably intended to calm their nerves. According to an account by the Telegraph, May declined to provide information about how the UK government would approach the Brexit negotiations never mind when they would start. Neither May nor the government appear to have any idea about where the country is going or how long it will take to get their.

Try putting yourself, dear reader, into the shoes of the investors. If you had the best financial interests of your company and shareholders at heart, would you invest in a country that appeared to have no idea where it is going?

Estimates for job losses resulting from a “hard Brexit” range from 40,000 to 80,000 over the next decade. Furthermore, Chancellor, Philip Hammond has said that the retention of passport rights of bankers is highly unlikely given the constant calls from mainly Tory constituents demanding that immigration be curbed at any cost. As financial services are said to generate more than £66bn in tax in the UK, the consequences for society are potentially serious.

Meanwhile, EU leaders continue to harden their stance against the UK saying they will rule out any cherry-picking in relation to accessing the single-market. The negative consequences resulting from the UKs uncertainty surrounding Brexit is already happening. Job vacancies in the UKs financial sector have suffered a sharp decline since Brexit.

According to the Institute of Public Policy Research, for example, job openings in the financial sector have plunged 10 per cent across England, falling in every region during July and August. They attributed the decline to concerns whether the UK will retain its passport rights. London recorded a 13 per cent drop in job adverts.

Investment in infrastructure has also received a set back according to Standard and Poor, the ratings agency. In a note to clients, the agency said that private investment in infrastructural projects was under threat: “The biggest risks for infrastructural companies could be from an extended period potentially running for many years during which the terms of exit and replacement trade treaties with the UKs partners are renegotiated”, they said.

In other words, nobody wants to spend any money in a country where they don’t know where it’s going or how long it takes to get there. On the other hand, infrastructural assets might become cheaper as the pound sterling devalues. So we ought not be surprised if the Tories sell off what little infrastructure we have remaining to the Chinese and Saudi’s for short-term profitable gain.

The incompetence of people like Boris Johnson who led us into this mess and the mainstream media who failed to challenge him, have instead focused their ire on attacking Jeremy Corbyn, who argued in favour of the Remain position. How much longer Theresa May and her Tory government can insulate themselves from media criticism over the Brexit debacle, remains to be seen.

A victory for Brexit is unlikely to change anything in the near future

By Daniel Margrain

 

For all those who thought that a Brexit vote in Thursday’s (June 23) highly anticipated and drawn -out referendum campaign will result in closure, might need to think again. In legal terms, the referendum is advisory rather than mandatory. What happens next is a matter of politics, not law – a determination that’s dependent upon whether the government decides to invoke Article 50 of the Lisbon Treaty.

To put it another way, the government doesn’t necessarily have to pay attention to what the British public says. What will happen on Thursday is that we, the British electorate, will effectively be advising and giving our opinion which doesn’t make the decision to leave, if that is indeed the outcome, necessarily legal. If we vote in a way that Osborne and Cameron disagree with, the government will almost certainly reconsider the result, particularly if the outcome is close.

Say, hypothetically, the turnout is 50 per cent and 51 per cent of that 50 per cent voted to leave, it would mean that 25.5 per cent of the electorate would have made the decision to leave which would adversely impact on the remaining 74.5 per cent. In other words, if something similar to this hypothetical situation did arise it would not, the government could argue, be indicative of a mandate to leave. Given how close the result is predicted to be, the vote tomorrow is unlikely to be the end of the matter, but merely the beginning of a long and drawn out process that will likely continue until the electorate arrives at a decision that Cameron and Osborne regard as acceptable.

As the Financial Times puts it:

What happens next in the event of a vote to leave…. will come down to what is politically expedient and practicable. The UK government could seek to ignore such a vote; to explain it away and characterise it in terms that it has no credibility or binding effect (low turnout may be such an excuse). Or they could say it is now a matter for parliament, and then endeavour to win the parliamentary vote. Or ministers could try to re-negotiate another deal and put that to another referendum. There is, after all, a tradition of EU member states repeating referendums on EU-related matters until voters eventually vote the “right” way.

What matters in law is when and whether the government invokes Article 50 of the Lisbon Treaty. This is the significant “red button”. Once the Article 50 process is commenced then Brexit does become a matter of law, and quite an urgent one. It would appear this process is (and is intended to be) irreversible and irrevocable once it starts. But invoking Article 50 is a legally distinct step from the referendum result — it is not an obligation.

There are three points of interest here in respect of any withdrawal from the EU by the UK.

First, it is a matter for a member state’s “own constitutional requirements” as to how it decides to withdraw. The manner is not prescribed: so it can be a referendum, or a parliamentary vote, or some other means. In the UK, it would seem that some form of parliamentary approval would be required — perhaps a motion or resolution rather than a statute. The position, however, is not clear and the UK government has so far been coy about being specific.

Second, the crucial act is the notification by the member state under Article 50(2). That is the event which commences the formal process, which is then intended to be effected by negotiation and agreement. There is no (express) provision for a member state to withdraw from the process or revoke the notification. Once the notification is given, the member state and the EU are stuck with it.

And third, there is a hard deadline of two years. This is what gives real force to Article 50. The alternative would be the prospect of a never ending story of rounds of discussions and negotiations. Once notification is given, then the member state is out in two years, unless this period is extended by unanimous agreement. It is possible that such unanimity may be forthcoming – but this would be outside of the power of the member state. Once the button is pushed, the countdown cannot just be switched off by a member state saying it has changed its mind, or by claiming that the Article 50 notification was just a negotiation tactic all along. That will not wash.

This said, what is created by international agreement can be undone by international agreement. Practical politicians in Brussels may come up with some muddling fudge which holds off the two year deadline. Or there could be some new treaty amendment. These conveniences cannot, however, be counted on. The assumption must be that once the Article 50 notification is given, the UK will be out of the EU in two years or less.

What happens between a Leave vote and any Article 50 notification will be driven by politics. The conventional wisdom is that, of course, a vote for Brexit would have to be respected. (This is the same conventional wisdom which told us that, of course, Jeremy Corbyn would not be elected Labour leader and that, of course, Donald Trump would not be the Republican nominee.) To not do so would be “unthinkable” and “political suicide” and so on.

And if there is a parliamentary vote before any Article 50 notification then there is the potential irony of those seeking to defend parliamentary sovereignty demanding that an extra-parliamentary referendum be treated as binding. But it must be right that the final decision is made by parliament, regardless of what the supposed defenders of parliamentary sovereignty say.

What is certain is that if there is an Article 50 notification then there will be immense legal work to be done. Over 40 years of law-making — tens of thousands of legal instruments — will have to be unpicked and either placed on some fresh basis or discarded with thought as to the consequences. The UK government has depended since 1972 — indeed it has over-depended — on it being easy to implement law derived from the EU. The task of repeal and replacement will take years to complete, if it is ever completed. Even if the key legislation — especially the European Communities Act 1972 — is repealed there will have to be holding and saving legislation for at least a political generation.

A vote for Brexit will not be determinative of whether the UK will leave the EU. That potential outcome comes down to the political decisions which then follow before the Article 50 notification. The policy of the government (if not of all of its ministers) is to remain in the EU. The UK government may thereby seek to put off the Article 50 notification, regardless of political pressure and conventional wisdom.

There may already be plans in place to slow things down and to put off any substantive decision until after summer. In turn, those supporting Brexit cannot simply celebrate a vote for leave as a job done — for them the real political work begins in getting the government to make the Article 50 notification as soon as possible with no further preconditions.

On the day after a vote for Brexit, the UK will still be a member state of the EU. All the legislation which gives effect to EU law will still be in place. Nothing as a matter of law changes in any way just because of a vote to Leave. What will make all the legal difference is not a decision to leave by UK voters in a non-binding advisory vote, but the decision of the prime minister on making any Article 50 notification.

And what the prime minister will do politically after a referendum vote for Brexit is, at the moment, as unknown as the result of the referendum itself.

SPeye Joe (Welfarewrites)

Joe Halewood writes about tenant and welfare wrongs

Bryan Hemming

short stories, comment, articles, humour and photography

juxtaposed

Subject to change.

Modern Monetary Theory: Real Economics

"The economy doesn't work like most people think it works!"

Basic (Citizens') Income

How this radical idea can make growth optional

Always Under-Occupied

My World Through a Lens

Think Left

The purpose of Think Left is to present a view of politics from a left-wing perspective.

Rocoja's Blog

Social Media for Small Business in Surrey & SW London

Rogues & Vagabonds

theatre, film & tv past and present 2001-2008 & 2013...

azizonomics

Economics, Technology, Futurism

Tory Britain!

Since 2010 the Tories have killed over 130,000 claimants & starved and made homeless millions more! The poor, sick & disabled need you for this to end. Don't vote Tory, ever!

Politics and Insights

Public interest issues, policy, equality, human rights, social science, analysis

Road To Somewhere Else

the view from the dark side: politics, media, cities & culture

Kendrickmusicfreak

Blogging about music from early 80s indie to Britpop and beyond

Unknowing

Fiat Justitia

Searching for my truth...

A journey to full awareness.

L u k e n . o r g

FATHER + SAILOR + TECHNOLOGIST + MUSICIAN

The Electronic Intifada - Ilan Pappe

the view from the dark side: politics, media, cities & culture

JohnPilger.com - the films and journalism of John Pilger

the view from the dark side: politics, media, cities & culture

Jonathan Cook: the View from Nazareth

the view from the dark side: politics, media, cities & culture

John Molyneux

the view from the dark side: politics, media, cities & culture

All That Is Solid ...

the view from the dark side: politics, media, cities & culture

openDemocracy RSS

the view from the dark side: politics, media, cities & culture

Bloggerheads

the view from the dark side: politics, media, cities & culture

Informed Comment

the view from the dark side: politics, media, cities & culture

George Monbiot

the view from the dark side: politics, media, cities & culture

Matt Carr's Infernal Machine

Notes From the Margins...

Media Lens - Media Lens - News Analysis and Media Criticism

the view from the dark side: politics, media, cities & culture

Craig Murray

the view from the dark side: politics, media, cities & culture

The WordPress.com Blog

The latest news on WordPress.com and the WordPress community.

Eleventh Stack

A books, movies, and more blog from the staff at the Carnegie Library of Pittsburgh - Main.

%d bloggers like this: