Article 50, QMV and November 2014

Yesterday we had a Harrogate Agenda strategy and planning meeting in Warwick to discuss the Euro elections and preparing for a potential referendum in 2017. At the meeting I managed to procure a copy of 'The 1975 Referendum' by David Butler and Uwe W. Kitzinger. Having a quick read last night, it was striking throughout the book how little has changed in 40 years with the EU debate - in arguments, the use of FUD and the lack of coherence in the campaign by those who wished to leave as neatly illustrated by the cartoon above. 

This time though we do have a number of potential advantages over the 1975 campaign. The 1975 referendum was the first ever in the UK, thus they had no real direct experience to draw upon. In contrast we have the opportunity to learn from the mistakes of 1975 and endeavor to try not to repeat them. 

There is also an off-shelf economic model in form of the EEA which can successfully nullify FUD in a referendum, and we also have a very workable and credible exit plan. The other rather powerful advantage is of course the Internet. Yet despite all of this it appears it is still not enough - as this poll tracker from YouGov shows since March of this year those who wish to remain EU members is greater than those who wish to leave:

We suspect one of the big reasons for this is the lack of coherence in the eurosceptic message which leads to the inability of the "outers" to get their message across effectively. A lack of policy detail by the only eurosceptic party, which has largely dropped the EU as an issue and gone for anti-immigrant vote instead, compounds the problem.

Here then the internet becomes very much a double-edged sword. Misinformation can spread very quickly and any fault lines and lack of coherence in the "outers" camp is ruthlessly and mercilessly exposed as a result.

It's often of some puzzlement, for example, that Article 50, despite being one of the easiest clauses to read in the Lisbon Treaty, remains one of the most misunderstood by not a few eurosceptics. It is no exaggeration to suggest that the Article is actually easier to understand than Rule 11 in football.

We have had further evidence of this in the last few days with the old canard that has been doing the rounds for years rearing its ugly head again - that changes to QMV in November will "prevent" the UK from exit . On Booker's column today, the 'best rated' comment is but one such recent example:

On 1st November 2014 new EU laws on Qualified Majority Voting (QMV) come into force.

The Transitional Arrangements for the new system still allow Member States to opt out of any decision until March 2017.

So even if we do get a referendum in Summer 2017, and even if the voters decide to leave, the Europhiles may simply block the exit plans until another referendum provides the right result.

Cameron cannot be trusted. There has to be a reason why he's waiting until late 2017 when the new voting system comes into operation and the reason must benefit those who want to remain in the EU, as he does.

These assertions have been debunked on here before, but it's worth repeating them again, First we must note that a more plausible reason Cameron chose 2017 is due to the UK taking over the rotating presidency of the Council of the European Union in the second half of that year. In practical terms this doesn't mean much in terms of renegotiating a new Treaty but it allows Cameron to 'grandstand'. He can claim to be at the heart of Europe and spin the conclusions of meetings hosted in the UK to give the appearance of Britain 'reforming Europe'.

It’s true that from the 1st November many areas are changing to “Lisbon Treaty QMV rules”. The main effect of this is to change to QMV those clauses which required unanimity according to the Nice Treaty. Yet, and what is often overlooked, is this doesn't apply to withdrawal because crucially Article 50 wasn't in the Nice Treaty. Instead it is an innovation of Lisbon and is listed as a "new item". As such it began life already under QMV rules, alongside other "new items" such as the election of the President of the European Council. This is made clear by Article 50 (2) (my emphasis):

In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

Article 50 therefore has never been under a unanimity decision, it has always been subjected to QMV rules. All that happens is that Article 50 will change from “Nice QMV rules” to “Lisbon QMV Rules” "in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union." (page 156):

As from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, in cases where, under the Treaties, not all the members of the Council participate in voting, a qualified majority shall be defined as follows:

• (b) By way of derogation from point (a), where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.

Yet the misunderstanding doesn't stop there. Our actual exit is not subjected to QMV. Article 50 is not an "Oliver Twist" kind of request, instead it is a notice telling the EU we're leaving...we're off...bye! QMV only applies to the outcome of any possible negotiations - secession almost certainly requires a new Treaty because it alters the founding treaties and as such requires approval of both parties (the UK and the EU) by ratification. In the EU's case part of ratification internally is QMV.

But as Article 5 (3) makes perfectly clear, failing to come to a withdrawal agreement still means the UK leaves by default after two years anyway:

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.

Thus the changes to QMV in November 2014 have absolutely no bearing on whether we can exit or not.

We face a massive uphill battle as it is to try to leave the EU; misinformation and failing to have a coherent message makes the already difficult task almost impossible. One despairs...

Update: And now we have a petition protesting that QMV blocks our exit. Jesus wept...