In the various slanging matches about leaving or not leaving the EU that we have heard on the media lately, much has been said about the requirements of Article 50, and much of this has been inaccurate. It seems that while many people have heard of Article 50, few of them seem to have read it properly. I will try and clear some of the confusion around Article 50, as proper knowledge of it may help us in our campaign for a “LEAVE” vote in the referendum.
Article 50 appears towards the end of the “TREATY ON EUROPEAN UNION”, which is the Maastricht Treaty as amended by all the other treaties since. Paragraph 1 of Article 50 simply states that any Member State may decide to withdraw from the Union. Paragraph 2 requires that the Member State notifies the European Council (not to be confused with the Council, which is a different institution) of its intention to withdraw. It then goes on to say that the Union shall negotiate an agreement with that State for withdrawal, and states that the agreement shall be concluded by the Council (not the European Council, which is a different institution), acting by qualified majority voting, with the consent of the European Parliament. It is Paragraph 3 that seems to cause the most confusion, so it is reproduced here in its entirety:
“3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
Read carefully the bit about the two year period. An agreement can be concluded at any time but if, after two years, no agreement has been concluded, we would automatically revert to our pre-1973 position, unless we agree to extend the negotiation period. Paragraph 4 states that the member of the European Council or of the Council representing the withdrawing Member State shall not participate in any of their discussions concerning it. It does not say anything about MEPs or the European Parliament. Paragraph 5 is about a State that has withdrawn asking to rejoin, and can be disregarded as far as we are concerned.
Note that the European Council and the Council are two separate institutions. The European Council consists of Heads of State or Government, and a President (Donald Tusk). The Council constantly changes its configuration, and consists of national Ministers of Member States, responsible for whatever is being discussed at the time. Hopefully, this may clear up some of the confusion regarding Article 50.
It must however be remembered that Article 50 is not the only hoop we will have to jump through to leave the EU. The European Communities Act 1972 (ECA) is the British legislation that gives effect to EU law within our borders. Once the ECA is repealed, European law (ie. the treaties, regulations, directives etc) becomes just so much paper and we would not be bound by them within our own territory. This means that, amongst many other things, we could control our borders and decide who we let in and who we don’t.
However, we do live in the wider world and we would most likely need the provisions of Article 50 to legitimize our exit on the international stage. Article 50 would probably also be needed to legitimize the recovery of things like our fisheries. The question of places like Gibraltar could get quite complicated, and it needs someone much more learned in law than me to try and explain that one. Whilst we are on the subject of Treaty Articles, let us also explore the subject of tariffs.
Once free of the EU we would resume our seat at the World Trade Organization (WTO). A look at the WTO website will show that the question of tariffs is not one that is easily answered. However, the “remain” campaign tries to tell us that heavy tariffs will be imposed on British goods and services if we leave the EU, yet there are provisions in the treaties that may refute this. Article 21 of the Treaty on European Union states at paragraph 2:
“The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: […]”
There then follow several sub-paragraphs, of which the one of interest is sub-para (e), which states:
“(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade”.
Presumably an independent UK would fall into the category of “all countries” so placing trade restrictions on us after Brexit would be contrary to this existing European law.
We then move to the “TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION”, which is the Treaty of Rome, as amended by all the other treaties, and which forms the other part of European law. Article 206 of this treaty comes under the Title of “Common Commercial Policy” and reads as follows:
“ By establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.”
Once again it seems that existing EU law would prevent restrictions being imposed on us post Brexit. However, the European Court of Justice (ECJ) may be able to interpret things differently if it chooses, and we might no longer be able to bring cases in the ECJ if we are no longer in the EU. These treaty provisions however may well be able to be used as evidence in a case heard by the WTO, which the EU would not be able to refuse to answer. The question of tariffs post Brexit is not a simple one but should not frighten us into remaining in the EU.