Wednesday 27 April 2016

Bernard Jenkin MP is right to suggest an alternative to the Article 50 of the Lisbon Treaty

The editor of Breitbart London, Raheem Kassam, is claiming that a letter from Bernard Jenkin MP reveals that Vote Leave wants to keep us in the EU for at least a decade but the letter doesn't actually mention Vote Leave and Kassam appears not to have read the letter properly.

Whilst there are undoubtedly some in Vote Leave who want to use a Leave vote as a negotiation tool to get reformed membership, the campaign itself is officially in favour of a Leave vote meaning we leave the EU. As Vote Leave's Chief Executive, Matthew Elliott, told us earlier in the year:
I'm not quite sure what else to say, other than the fact that if we are to win this referendum, we have to convince voters who have previously taken a "reformist" stance to come out for Leave - sadly Leave is not yet at over 50% in the polls! I am campaigning for a Leave vote, and there is no way I will campaign for or recommend a Remain vote. 
What Bernard Jenkin MP has said in his letter to a constituent is that he (not Vote Leave) thinks that there are other options available to the UK in the event of a Leave vote than immediately invoking Article 50 of the Lisbon Treaty as David Cameron has said he will do. His preference is to instead negotiate a new treaty with the EU that would do away with the need to invoke Article 50 of the Lisbon Treaty.

In his eagerness to "prove" that Vote Leave is a trojan horse for the establishment Kassam has ignored the fact that Jenkin hasn't even mentioned Vote Leave and failed to consider whether what he says is a viable option.

Under the terms of the Lisbon Treaty the only legal way to leave the EU is by giving notice to quit under Article 50 of the treaty. If the other member states agree to let us leave (no, this is not a joke) then a two year process is triggered in which we negotiate the terms of our exit and our future relationship with the EU. At the end of the two years we are out.

The is no other provision in the Lisbon Treaty for leaving the EU but under international treaty law a new treaty can supercede the Lisbon Treaty just like a piece of domestic legislation can implicitly or explicitly supercede another piece of domestic legislation. Bernard Jenkin's suggestion that we could conclude another treaty with the EU that would result in our exit from the EU and not require giving notice under Article 50 of the Lisbon Treaty is absolutely valid and in fact the deal that we would negotiate with the EU if we leave by way of the Lisbon Treaty would quite likely result in a new treaty or at the very least a new annexe to the Lisbon Treaty. If it did result in a new treaty then that treaty would of course contain the repudiation of the Lisbon Treaty.

Where Kassam gets the decade in the EU thing from is Jenkin's clumsy wording about negotiating the new treaty where he says that we would have to negotiate with all 27 remaining EU members. 
It would be for the UK and the EU to agree the basis of a new relationship in the aftermath of a vote to leave. This would involve negotiation with all the other 27 member states at government-to-government level. This could take the form of a new treaty, which would mean the UK would not need to resort to Article 50. We will have many options open to us after a vote to Leave, unlike if we vote Remain and I am grateful to you for offering me your thoughts on the matter.
Conducting 27 separate negotiations would indeed take many years but there wouldn't be 27 trade deals with 27 EU members. One of the fundamental arguments for leaving put forward by Leave campaigners is that as EU members we can't negotiate our own trade deals because they have to be done collectively by the EU. Reading the whole paragraph, Jenkin is clearly referring to lobbying of the individual EU governments as Cameron did to get his "deal" to ensure that the agreement reached with the EU goes the right way.

If it was practical I would like to leave tomorrow but the whole machinery of the state needs to move from its current model where large chunks of government are outsourced to the EU to one where they actually do their own thinking. The biggest challenge will be DEFRA which has been little more than an outpost of the EU in the UK, the British government having handed control of fisheries and agriculture to the EU many years ago. In the case of DEFRA they will effectively be building a brand new government department. Government moves at a sedentary pace, it is unlikely that they could even decide what the department should do let alone resource it and get it working effectively. If there was an opportunity to delay the insourcing of at least some aspects of government beyond the two years allowed by the Lisbon Treaty then as long as fully leaving the EU is the end game and it doesn't delay that objective unduly, it isn't something that should be dismissed.

David Cameron has predicted pretty much everything short of an alien invasion (from outer space, not the middle east) when we leave the EU and when we do vote to leave he will want the record to show that he was right. Government departments have been instructed to make no plans for leaving and he has said that he will give notice under Article 50 of the Lisbon Treaty as soon as we vote to leave so government departments and the civil service will be starting from scratch with a fixed two year deadline to bring everything that has been outsourced to the EU back in-house and negotiate a new relationship with the EU. It's been set up to fail to secure Cameron's legacy but what Jenkin suggests is a way to make it work.

With an agreement that we cap our relationship with the EU as it is now, sign up to no new treaties and hand over no new powers we can chip away at what competencies the EU has (with a corresponding reduction in the membership fee of course) whilst negotiating a new treaty in parallel which will take us out but maintain a relationship with the EU on terms that work for us. As long as there is an agreed deadline for getting out completely - perhaps 5 years - and it's not used as a stalling technique there's no reason why we should choose to limit ourselves to two years to leave and equally no reason why we should have to use the Lisbon Treaty to leave if our best interests are served by leaving in a different way.

Vote Leave is clearly the establishment campaign - it's the one the politicians and other establishment figures flocked to - but is it a trojan horse? I don't think so. Our preference was for Grassroots Out to be designated the official Leave campaign but the Electoral Commission chose Vote Leave. Their decision was made transparently and whilst the decision wasn't the one we wanted there is no point trying to undermine the campaign that has all the money and resources and the mandate from the Electoral Commission to lead leave campaigners. Kassam's misleading analysis of Bernard Jenkin's letter and incorrect attribution of that misleading analysis of the MP's comments to Vote Leave are not helpful. Now is the time to work together, not play silly games.