Friday 4 November 2016

Is there an alternative to Article 50?

With the High Court ruling (if upheld) having made it clear that parliamentary approval is needed to trigger Article 50, attention is now likely to shift to the possibility that there are other routes to leaving the EU. A pervasive meme amongst Brexiters has been that the UK could simply shortcut A50 and unilaterally repeal the 1972 European Communities Act. This idea has been adopted by UKIP leadership candidate Suzanne Evans, who recently said:

“Article 50 is not the way to go. That is an EU construct. The best way to do it in my view is to repeal the 1972 European Communities Act as soon as possible”

This course of action has also been recommended by long-time Tory Eurosceptic John Redwood.

Whilst this option was not explicitly considered by the High Court (which considered the repeal of the 1972 Act at the end of the Lisbon A50 process, rather than before and instead of that process), its ruling directly impinges upon it in that only parliament could repeal the 1972 Act. But would it, in any case, be a good idea? The EU Law expert Professor Steve Peers explains that:

“[P]olitically and economically speaking, this option is insane. It would leave many practical details of withdrawing from the EU unresolved, such as payments of EU funds to UK recipients. Even if the UK could revert its membership of the EEA, that would only govern the trade arrangements with the EU, not issues outside the scope of the EEA. For instance, it would immediately end the UK’s involvement in the European Arrest Warrant (EAW). Unless we had negotiated a transitional and/or replacement arrangement – which is obviously the point of having the two-year period set out in Article 50 – defence lawyers would argue that any EAWs which the UK had issued to other Member States, and any EAWs issued by other Member States which the UK was seeking to execute, were invalid. That would mean that no fugitives could be arrested or detained on the basis of those invalid EAWs, and those already detained would have to be released. More broadly, such a ‘unilateral declaration of independence’ would destroy the UK’s credibility as a negotiating partner with the remaining EU, and indeed with anyone else, given the clear contempt that it would display for the legal rules which the UK had previously accepted. It would be a long time before the UK could plausibly claim again that it had a record of ‘fair play’ in international negotiations.”

The impetus to ‘just do it’ will doubtless resonate with many Leave voters – I recently heard a voxpop where someone thought that we had already left the EU - but as with so much in the current situation the complex realities don’t fit with the populist simplicities.

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