Sunday 20 January 2013

"Repatriation Of Powers Is Possible"

Those were William Hague's words on Sky News at around 11:20 this morning in response to my question posted via Twitter:

Sadly, Sky News presenter, Dermot Monaghan didn't read out the complete question but instead he said (from memory);
"A direct question from PWilliams, do you agree repatriation of powers is possible"
Disappointingly but not surprisingly this allowed Hague to waffle untruths unchallenged.

That aside, Hague appeared also to confirm that Cameron is not giving his speech tomorrow, instead Cameron will be announcing tomorrow the date when he will give it - some time this week apparently.

One can be forgiven for thinking that the government is making it up as it goes along. What a shambles...


  1. It's hard work, isn't it.

  2. As I have mentioned before, it is a David and Goliath type battle we are in. They have the money, the power and the projection. We have little of any of those. One we thing we do have on our side is the truth. As has been argued on WfW blog, there are many faults with UKIP but I believe the current best option is to educate and inform them, and hopefully they will listen, so that they can get the message out loud and clear.

    Your posting is a classic media lie by not even reading out your tweet properly! Just like the global warming scam, the truth will come out eventually and the media, although they will try to suppress the truth about the EU, will have to at least give the truth a chance.

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  5. Oh dear TBF, I have to outright disagree with you again. Of course it is possible to repatriate powers from the EU back to a nation state.

    It is a cultural difference. EU "laws" are only absolute whilst the euro elite says so. Continental laws are elastic. To bank on them merely shows that you (and Richard North) are trapped in the English view of the law.

    The same thing happened over the survival of the euro. I said it would survive 18 months ago, whilst numerous eurosceptics said it would collapse imminently. The reason? - I knew that the euro elite would do anything (including breaking their own laws) to ensure survival. English eurosceptics thought the rules precluded rescue.

    If Cameron shows he means business, he will get his concessions. Whether this is a good thing, or not, is another matter. If it happens we will pay for it. My view is we should get out now, this minute, by repealing the 1972 ECA, because I don't trust the euro elite to negotiate under Article 50 in good faith.

  6. @Budgie EU laws are English laws - that's the point - it is our government and it is our law. You can't separate them.

    I agree that the only way to repatriate powers is to leave. But that can only be done via Article 50. The Lisbon Treaty - an international treaty - is part of our law, because it was passed by our Parliament. We can't simply ignore it exists.

    Clearly you recognise the ECA 1972 passed by a sovereign Parliament, by arguing that it can be repealed therefore you have to recognise the Lisbon Treaty which was passed by the same method. Thus we have to abide by the terms and conditions Parliament agreed to.

    As for Article 50 I countered you claim here below on my blog piece of 12th December

    I note your response was not convincing. The terms of Article 50 make it clear that it is a notice to leave, not an Oliver Twist "please Sir, can I have some more" request.

    The EU can do what it likes, it matters not, we would be leaving; end of, period, full stop.

  7. TBF: "Thus we have to abide by the terms and conditions Parliament agreed to."

    "What parliament can make, parliament can unmake"; "No parliament may bind its successor". It is well known that parliament (whilst sovereign) can make and unmake laws; agree treaties and later abrogate them. It is the ECA that makes EU laws legal in the UK (see Laws et al in the "Metric Martyrs" Appeal Court judgement).

    It is a fact of international law that, whilst the UK is regarded as legally independent, we can abrogate the EU treaties by repealing the ECA. Whether that is a sensible move is of course open for debate. So, far from ignoring the existence of the Lisbon Treaty (now folded into the TEU and the TFEU), I am convinced that parliament has the right to abrogate it, and thus repeal of the ECA is a (possible) legal exit.

    I understand that you tried to counter my claim on 14th Dec 2012, but I regarded your attempt as unsuccessful. Having re-read Article 50 I am more convinced; as subsection 4 of Article 50 states: "... the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it." In my view this allows sufficient wriggle-room for the EU to deliberately and separately decide upon conditions so onerous that we would be unable to comply. And hence be forced to stay in. Article 50 is a trap.

  8. There's a big difference between possible and probable. It's possible we could construct our own custom membership of the EU via Article 48 and the rest would gladly agree and so it would be. It's hardly probable.

    In the same way if I wrote to Bill Gates and asked for a cheque for $10,000,000 it's possible he would oblige, but it's hardly probable or even remotely likely.

    Wee Willy Hague just loves to play with words and the difference between possible and probable is exactly the sort of thing where he's in his element.

    To my knowledge, the Aquis Communautaire has not yet been broken and it's easy to see why, bearing in mind that the EU is a political project.

    For anything worthwhile to be renegotiated, in the way Cameron hints at, it would require breaking the ratchet. That would be existential for the EU.

    I don't see the Tories as doing anything but waffling the problem away to the next GE.

    Were they in power and conducting these negotiations, I'd expect a Wilson style blowing up of next to nothing into a big deal.

    I'd say renegotiation from within the EU was a non-starter and the Tories don't want to do it anyway.

  9. Article 50 (4) suspends us from the internal workings as regard EU laws which we have to abide by as an EU member - which we can ignore anyway. By the time it gets to the ECJ we would be long gone.

    It has no bearing on exit negotiations, or otherwise, as per Article 50 (3):

    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...

    In other words, we hand in our notice, end of. The EU cannot prevent us from doing so nor can they dictate the terms of exit. It is plain as day via A50 (3)

  10. To put it simply Budgie, it's like handing your notice in at work - Article 50 (4) means you're excluded from company meetings, the coffee round and the 'McDonalds run' but still after 28 days, as per your employment contract, you'll still be leaving and there's nowt your company can do about it.

    Only in this case the notice period is 2 years.

  11. Cosmic, I agree with you - Cameron's position is possible but not probable. I was merely trying to say that a) renegotiation is possible (because the euro elite has already shown it is prepared to break its own euro laws) and b) that leaving by repealing the ECA is possible (ie it is a perfectly legal move).

    Whether either of these is probable or preferable is open to opinion.

    Sorry, TBF, but subsection 3 has no bearing on the negotiations themselves because it clearly states that the treaties cease to apply only "from the date of entry into force of the withdrawal agreement ...". The "agreement" is the end result of the negotiations. So subsec 4 applies whilst the negotiations are taking place - that is, the EU decides on the terms without us and then says: take it or leave it. Article 50 puts too much power in the hands of the EU.

  12. Budgie,

    Whichever course depends on a realistic assessment of the level of political will that can be generated and maintained.

    The Art 50 route involves less disruption and less political will. There are definitely dangers, one obvious one being am understanding on the part of the negotiators to derail the negotiations and the application being withdrawn. There's nothing that says it has to result in exit.

    One objection I've always had to repealing the ECA is that if it's hard to see Art 50 being invoked, it's extremely hard to see the ECA being repealed and everything following from there.

  13. @Budgie. The procedure is that any country who invokes A50 automatically leads to a new Treaty as indeed all major changes to the EU must. A country leaving is a very big change indeed. This is done by means of convening an IGC

    This is the withdrawal agreement that has to be agreed to, essentially a new Treaty – with the UK on one side of the table and the EU (and 26 member states) on the other. That is the reason for Article 4 – the UK, or any other country, is suspended from certain EU bodies for the obvious reasons it cannot sit on both sides of the negotiating table. It would otherwise be negotiating with itself.

    If, and I mean if, a new Treaty (withdrawal agreement) is agreed then like all previous EU Treaties (like Maastricht and Lisbon) it then has to be ratified by all countries including our own Parliament. So at every step of the way therefore the UK has the ability to say no, no, no.

    In the event of no agreement then this part of Article 50 (3) applies (which I note you overlook):

    "or, failing that, two years after the notification referred to in paragraph 2... "

    See? “Or failing that”. In other words, or failing an agreement, failing ratification of the Treaty then we’re out by default after 2 years.

    The EU thus does not decide terms, cannot prevent us from leaving and indeed by invoking A50, the timing and the power of negotiation lies in our hands.

  14. Lisbon does not prevent the EU from being fair to us, but it doesn't preclude it either. In my view Article 50 is worded in such a way as to put the supplicant in a bad position. To be brutal about it, if you think the EU will be fair to us you haven't being paying attention for the last 40 years.

    You have cited nothing that makes me change my mind about the EU's intentions. Too many good people are prepared to trust it, and you are encouraging them. In my copy of Lisbon (BMDF), Article 50(2) states that "... the Union shall negotiate and conclude an agreement ...". The Union.

    It is not possible for the UK to take part in discussions within the EU as a result of the exclusions defined in Article 50(4) - the UK "shall not participate ... in decisions [within the EU] concerning [the UK]". That means the EU is in a position to decide internally what it will offer us. The only ability the UK has to say "No" is when we are presented with what (the rest of) the EU has finally decided are the conditions it will impose on us. There is no mention in Article 50 of either an IGC or a treaty, and neither are required for an exit by either method.

    Nor are you correct about Article 50(3). By definition if the 2 year time limit is invoked, there is no "withdrawal agreement" in place. So there is no negotiated settlement. The practical result of that is exclusion from the single market on the worst possible terms.

    Thus, via Article 50, the EU can decide the terms it will offer us, and without our participation. It is in the power of the EU to offer terms so draconian that we would be politically (and/or economically) unable to accept them. By contrast repealing the ECA is directly in our power - and the worst outcome of it might be equivalent to the 2 year time limit exit under Article 50. But since ECA repeal puts us, not the EU, in control of the timing of the negotiations, and makes us the equal participant, we would likely obtain a better outcome.

  15. Nowhere in my comments above have I used the terms ‘trust’ or ‘being fair’ nor indeed argued that’s what Article 50 is about. That is a strawman based on what you think I have said not what I actually have.

    Article 50 is merely the mechanism by which we exit an international treaty, a treaty that this country has willingly agreed to, entered into and signed up to. By depositing the articles in Rome this country has agreed to use Article 50 as the exit. It is therefore rather disturbing that you seem to be arguing that we should adopt such a caviller approach to international treaties and laws that we have agreed to.

    Regarding an IGC, any country that leaves - particularly of the size of the UK - will require significant amendments to existing EU Treaties, if not least because it would change the inner mechanisms of the EU such as QMV ergo a new treaty is required. It does not have to say that in Article 50 for that to be the case.

    In the same way the accession clause in Lisbon – Article 49 – does not mention specifically the need for a new Treaty either, but if a country joins the EU a new treaty is required for precisely the same reasons as leaving – that it changes the inner workings of the EU. Therefore on exit we have discussions with the EU on a new treaty via an IGC - we sit on one side of the table, the EU on the other. And Article 4 simply applies to stop us from negotiating with ourselves.

    I note as per your previous comment (21st January) you said:

    “In my view this allows sufficient wriggle-room for the EU to deliberately and separately decide upon conditions so onerous that we would be unable to comply. And hence be forced to stay in. Article 50 is a trap.”

    Now you say:

    “By definition if the 2 year time limit is invoked, there is no "withdrawal agreement" in place. So there is no negotiated settlement. The practical result of that is exclusion from the single market on the worst possible terms.”

    If Article 50 is a trap and a means of forcing us to stay in why would we then be excluded from the Single Market after 2 years? Or is that grudging admission that the EU cannot force us to stay in? If that’s the case, what possible motive then would the EU have to put us in such an impossible position by offering terms “so draconian” that the EU in effect would be cutting off trade with one of their major trading partners – during a Eurozone crisis.

    That simply isn’t a logical position to take.

  16. I will be brief here because I intend to reply at length to one of your later postings.

    "Trust" is implicit when you advocate invoking TEU Article 50, where "the Union" negotiates and conclude the agreement. You are trusting the EU to be fair. The UK would be in the position of supplicant, operating within EU rules with an outcome decided by the EU, on a take it or leave it basis. This is not like negotiating a treaty about, say, fishing with Greenland, where both parties are equal.

    Short of military action of course the EU cannot literally force us to stay in. But at what cost? You missed out my rather critical precursor (tut!), where the EU could: "deliberately and separately decide upon conditions so onerous that we would be unable to comply". That is, the price politically would be too high for the UK to accept the offered withdrawal agreement. The EU will do this if it wants to keep us in, and prior to the 2 year limit (which is not a limit anyway because it can be extended).

    A sovereign state has the right to abrogate a treaty, otherwise that state would not be sovereign. You have not cited anything which legally precludes abrogation as a remedy for a state which no long wishes to part of an international treaty. An example is when the USA in 2001 abrogated the ABM Treaty.

    A UK-EU treaty is not a requirement of not being a member of the EU. Otherwise the USA would require such a treaty. A treaty is only necessary if a negotiated settlement is reached where we continue to remain tied to the EU in some sense, rather than distinctly outside the EU as the USA is. And if we are out, and the EU needs a new treaty amongst its own states - who cares?

  17. @Budgie I note that yet again you are selectively quoting the Lisbon treaty which is taken out of context. Please read Article 50|(3) again - the limit can only be extended with the UK's (and the EU's permission.

    The EU cannot, I repeat, cannot keep us in. The readers of this blog can see that for themselves by reading Article 50 in full for themselves which I have openingly linked to.

    I asked you a simple question, and please answer, how can the EU exclude us from the Single Market via Article 50 (in your words) if as you say "it forces us to stay in after 2 years".