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Monday, November 24, 2014

Owen Paterson: Has he called for #Brexit or #EUReform?

BBC reports is is #Brexit
Former Cabinet Minister Owen Paterson has just made a hard hitting speech on the UK’s relationship with the EU. He made a familiar case that the EU is as much a political union as an economic one. He concluded that the UK should remain in the ‘economic’ Single Market but remove itself from the political union.

A clear position? Well, staying in the Single Market, while removing the political aspects of the EU can mean different things – it could mean remaining in the EU while pairing back the worst aspects of the EU’s state building or leaving altogether and negotiating instead a trade agreement in order to retain access to the Single Market.

There has been some understandable ambiguity in the reporting of Paterson’s position, this is our under-standing:
Times reports it is "reform"

Firstly, Paterson believes the issue should be solved via a referendum in 2017. But his proposed question is not entity straight forward. His preferred options are:

Yes: The UK leaves the EU and joins the EEA, like Norway; or
No: The UK stays in the EU and joins the euro

An interesting choice, that excludes the possibility of better EU terms or even continuing as a non-Euro state. However, it is clear that Paterson’s negotiation is not a ‘re-negotiation’ but a simple negotiation for #Brexit. He favours joining Iceland, Switzerland, Lichtenstein and Norway in EFTA and joining EFTA’s deal with the EU – known as the EEA (of which Switzerland is not part). And in order to conclude his exit terms and EEA membership he seeks to use a provision of the Lisbon Treaty that allows a two year period after notifying the EU of an intention to exit to attempt to finalise continuity terms – Article 50. We're sceptical of the EEA model as an alternative for the UK outside the EU, at least as currently set out, but let's leave that one to the side for the moment.

It has been argued previously that Article 50 could be used to trigger a full renegotiation of the terms of the UK’s membership within the EU. However Paterson’s proposal is more straightforward – he wants to immediately start to negotiate Brexit terms in 2015 so that a clear proposition is on the table for the 2017 referendum. That may have the benefit of providing the clarity that has so far been lacking in the ‘out’ case – but has three obvious drawbacks.
  1. What happens if the other EU states do not wish to negotiate prior to a referendum outcome – they cannot be forced to.
  2. What happens if the UK votes to stay in – would the other EU member states be compelled to cancel the exit application? Perhaps but at what price?
  3. Article 50 isn't a great negotiating tool. We have previously weighed up the pros and cons of using Article 50 below, but what's clear is that it's giving away a lot leverage over the UK's terms of exit (for example, the final deal will be decided by a qualified majority vote of which the UK won't be part).
Source: Gaming Europe's Future by Open Europe
Paterson may however argue that Article 50 is a legal mechanism and something as important as the UK’s membership will ultimately be decided politically, in the UK and the EU level.


Denis Cooper said...

"It has been argued previously that Article 50 could be used to trigger a full renegotiation of the terms of the UK’s membership within the EU."

No, if you want to renegotiate your terms of membership of the EU then it's Article 48 TEU on revision of the EU treaties, only if you want to leave the EU is it Article 50 TEU on voluntary withdrawal from the EU.

There should be no confusion about that.

jon livesey said...

The main thing wrong with Paterson's proposal is the timing. It is too soon to invoke Article 50 and be sure the UK public will back you.

It would be much wiser to wait a year or two, when EU austerity will almost certainly translate into more or less serious civil unrest in Europe, when staying in the EU will look outright dangerous.

Rollo said...

Owen is asking for EU reform knowing that it will not happen, thus triggering Brexit.

Rollo said...

Unlike Cameron, who is posturing about reform, thinking he will deceive the British people that he has achieved it and thus can stay in the EU

Unknown said...

For me and most people I know (rightly or wrongly) it will always come down to a binary choice of do you want to be under the remit of a commission which effectively is a government of Europe or not at all. All the pro's that will be touted after renegotiation will be a blur compared to a simple no to the question. People don't buy the alleged fact that 3 million jobs are at risk. People can at least now say so without being labeled as racist or little Englanders. Believe it or not but the majority of people I know don't even count immigration as the main contentious point, its a by product that (even those that welcome immigration) we need to be able to control ourselves, it comes under the umbrella of getting back control of our own affairs. Us Brits understand that the rest of Europe want to go on a different path and say let them. let us leave and you can do what you want without us standing in your way (even tho no one has ever voted for more integration). Let us be the model that they eventually want to follow. Germany can lead them to a dangerous ending if it ever ends.

Jesper said...

Part of what needs reform in the EU is the constant centralisation of powers. The EP responded to this concern by centralising power even further.

Doubtful if it can be reformed. Juncker will probably pass the vote of no confidence, but would he have passed if an election for the EP was months away instead of, as now, almost 5 years from now?
Will voters get to see who supports him or will it be a secret vote?
Will voters remember who supported the man who claims he was not responsible (in other words a self-confessed unaccountable) for the actions of the government he led in Luxembourg?

If there is going to be a referendum the choices will be:
-stay in the unreformed EU
-leave the EU

Even if there was a will to reform, there is no time to provide any other options.

Anonymous said...

I do wish people would stop this 'reform','better terms' nonsense! As a member of the EU club the UK has to accept the club as is. The EU does not do 'reform', the EU elite have told Cameron as much.
Open Europe, the CBI, Business for New Europe are all on Cameron's 'reform of the EU' bandwagon but it is not going to happen in the UK's favour.

The EU, at least the Eurozone inner circle, are actually going where Cameron claims he does not want to go; for 'more europe' and deeper integration'= ever closer union!

In effect, if the UK is not going to join the euro and wants an opt out from 'ever closer union' *Cameron's words) the EU s leaving the UK.

What part of ever closer union does Open Europe, the CBI..... not understand?

Anonymous said...

According to the Pope (translation)
`The EU is like a barren old lady
who has lost her way`(dementia?)
This was not mentioned on German TV
(ZDF) and Schulz ignored this comment completely. They live in a fools paradise.

Rik said...

You look at the issue too much from a legal pov.
At the end of the day it is a political game not a legal one.
Which means that you might (or even have to) consider legal tools like art 50 for political purposes.
Same as in real life people sending in their resignation to get a payrise. Stop a rent in order to get it back cheaper. Or repay/end a loan to get a new one under better conditions. Here are legal tools used to get an economic advantage. Art 50 might serve a political goal.

Looks btw clear that this guy simple doesnot have the picture straight. His scenarios simply donot look worked through properly.swasch goes

Edward Spalton said...

Quite agree with Jesper and Anonymous. One is either in or out of the EU. The only direction of "reform" is towards "more Europe".
The Eurozone countries need to head that way fast, if they are to save the Euro currency and have, in fact, agreed to the abolition of any democratic monetary control in the ESM in order to do so.

So, this group, with its inbuilt majority, will become for practical purposes a single country. Because of Franco/German collusion under the Elysee treaty, Britain's large financial contribution never did buy much influence. Now (as we saw over Mr. Juncker's appointment), it is zero.

Yet still Cameron dithers with his pretence of "renegotiation" whilst remaining a member. The late Harold MacMillan had a rhyme which he once applied to somebody else but suits Cameron perfectly.

"She didn't say yes. She didn't say no.
She didn't say "come". She didn't say "go".
She wanted to climb but she feared to fall,
So she bided her time and clung to the wall".

Article 50 is the only practicable way of negotiating any new relationship. If Cameron made it a manifesto commitment, there would be no need of a referendum if he were returned to power.

After all, we didn't have one to get us into this.

WitteringsfromWitney said...

"It has been argued previously that Article 50 could be used to trigger a full renegotiation of the terms of the UK’s membership within the EU. However Paterson’s proposal is more straightforward – he wants to immediately start to negotiate Brexit terms in 2015 so that a clear proposition is on the table for the 2017 referendum. That may have the benefit of providing the clarity that has so far been lacking in the ‘out’ case – but has three obvious drawbacks. (of which #1 is):

What happens if the other EU states do not wish to negotiate prior to a referendum outcome – they cannot be forced to."

Er, once a formal application under Article 50 is lodged, they have a choice?

christhai said...

Weasel Words.

This opportunist, who like his frightened colleagues rightly feels the people of the UK chipping at his foundation DID NOT say the UK must invoke Article 50.

What he said was that if the people of the UK are gullible enough, stupid enough to continue to believe in Cameron's fantasy "Referendum" following the even more ridiculous 're-negotiation' with the EU - then if it all doesn't work out - it is time to consider invoking Article 50.

Now if he said, "Let's invoke Article 5O NOW' and start negotiations NOW" - we might take him more seriously.

But everything these wimps say is underlined by "Should Mr Cameron's negotiations fail.....we will have the Referendum in 2017."

There cannot be a Referendum from any of the EU Controlled Parties.

It is forbidden by the EU.

Unless it is a YES vote - the EU will never recognise it.

Stop the waste of money. Leave the warmongering Germany. Stop the colonial EU in its tracks as far as the UK is concerned - and LEAVE!

john parfirt said...

Surely the thing is covered by the sleeping beauty of the Luxembourg Compromise which CdeG invented to protect national (eg French) interests or the Vienna Convention which allows a two year notice period but in reality suspends compliance at once. What we need is DC to say openly 'This (list requirements) is the way forward'put it to a referendum get his vote and tell the EU that this is the way it's going to be' We can throw them a few tit-bits like free fishing licences so they can say they get something. Arguments about Norway and Switzerland are irrelevant our economy is big enough to give us the clout to get our way.

Denis Cooper said...

Rik, I'm not one of those going around referring to a specific legal provision by saying "Invoke Article 50! Invoke Article 50!", but unlike most of those people I have actually read it and I know that it is about the voluntary withdrawal of a member state from the EU, and moreover it is ONLY about withdrawal from the EU, not about negotiating new terms of membership of the EU.

Anyone who wants can read it here and educate themselves:


Edward Spalton said...

Good morning all.

Like many people I started out thinking that Article 50 was "an EU trap". Mature consideration and considerable research led me to think otherwise. It is not a matter of "asking permission" but of giving notice. Once you have done that, you are on your way out.

The situation is far more complex than many people think - not just about trade with the EU countries. There are all the international agreements which the EU has negotiated on our behalf over forty years. To take one example the regulation of air travel is an EU competence and it required (from memory) renegotiation of some 1500 treaties between EU member states and third countries as well as some 46 "horizontal agreements" negotiated by the EU itself with third countries. There are literally thousands of similar agreements making up the framework within which global trade operates. It would be an impossible job to renegotiate them all within 5-10 years. The Foreign Office has been run down rather like the armed forces. So whatever arrangement we come to will have to be some sort of "package deal". This is the attraction of the EEA/EFTA option which looks after all this sort of thing. Most people would regard it only as a first step to further decoupling - but safely outside the jurisdiction of the EU institutions and European Court of Justice.

Interestingly enough, in our local paper, Europhiles have been saying that getting out is easy- just repeal the ECA 1972! (So it is, they say, no big deal for our sovereign country to stay in) One even said it could be done "in the twinkling of an eye". Now I wonder why they would be telling people that?

Denis Cooper said...


Because Article 50 TEU is in the EU treaties and so is part of EU law, and because it does not exclude the ECJ from having any jurisdiction over the process of withdrawal, it could become a kind of trap if people ran off to the ECJ and tried to impede our withdrawal; for example, by complaining right at the start that the UK government's formal notice that the UK intended to leave the EU was invalid under the UK constitution, the first sentence in the Article being:

"Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

Then the ECJ could put the entire withdrawal process on hold while it deliberated on that matter, and on any other objections, so potentially giving an extended opportunity to change the UK government back to one which wanted to stay in the EU.

One must not expect good faith anywhere, not abroad in the EU and not at home either, and faced with that kind of trickery the UK government would have to decide whether to battle on with trying to make an orderly withdrawal under Article 50 and hope that it will survive to see it through, or make a disorderly withdrawal by immediate abrogation of the EU treaties.

In any case, even on the domestic plane repeal of the ECA72 will not necessarily be straightforward, given that the House of Lords has been packed with EU pensioners and supporters and fellow travellers who will use every possible means to oppose the Bill to repeal the Act and it is very likely that it will be necessary to invoke the Parliament Acts to by-pass them; once again there will be a danger that the government could fall during that period of delay.

Edward Spalton said...

Hello Denis,

I do not think that the ECJ has any competence to rule on a member state's own constitution unless novelties are introduced contrary to the Charter of Fundamental Rights and anyway their legal process takes around 2 years to come up with an enforcible ruling so we would be out by the time that arrived. I did however suggest a "belt and braces " approach in an article in Freedom Today (March this year) - passing a "Henry VIII style " Act like Praemunire or the Act in Restraint of Appeals which could be activated "just in case" they tried to play silly buggers. About four years ago now the ECB wrote a very detailed article and came to the conclusion that the EU could not stop any member state leaving because it lacked the means of coercion. (They were also looking at the possibility of chucking Greece out and came to the conclusion that they couldn't do that either)

Abrogation of the treaties would be, as you say, "disorderly", clean contrary to international law and disastrous for the credit of a country like ours which depends on international borrowing just to keep going. We haven't had a balance of payments surplus for over a generation.

I am actually more fearful of wreckers, incompetence or treachery at home than of the EU authorities. They would be constrained by the interests of their member states, whose economies are also not in good order and do indeed have a very significant market here.

Unless there is a programme which has a credible offering of a smooth, seamless transition and continuance of trade, it has IMHO no hope at all of winning a popular or parliamentary majority. People will vote for their jobs - which is why our foes continue to parrot "three million jobs".

I have had various thoughts on this. Drop me an email to edward@spalton.me.uk if you would like a bit of light reading!

Interestingly enough Jacques Delors (no less) said (Dec 2012 from memory ) that EEA/EFTA or a free trade agreement would be perfectly and amicably acceptable if Britain did not wish to pursue further political integration.

Denis Cooper said...

Edward, the ECJ believes that it does have competence to make rulings about the national constitutions of the member states, but in any event the purpose of a complaint to the ECJ would not necessarily to win the case but just to create enough delay for there to be a change of government.

Edward Spalton said...


The experience of the Factortame case showed that - yes the ECJ could rule on the validity of a UK Act of Parliament which was contrary to the treaty - but it took quite a long time to do so. It did not issue the equivalent of an injunction immediately suspending the application of the Act.

I have been told (on what I believe to be good authority) that, when Mrs T was in full handbagging mode demanding her rebate, she caused a parliamentary Bill to be printed (though not published) suspending Britain's financial contributions to the EU. This, of course, would eventually be overruled by the ECJ but it would take a couple of years for them to get that far and in the meantime there would be a tremendous row. Somehow or other a copy of the draft Bill reached Brussels and their negotiators became a great deal more reasonable.

I don't think they are in a position to throw any immediate spanner into the works but, to calm those of a nervous disposition, I suggested a "belt and braces Act".

Any negotiation always comes down to the relative political determination of the negotiators.

Denis Cooper said...


The ECJ is not empowered to strike down an Act of the UK Parliament, but it is empowered to intervene directly against acts of the EU institutions including the European Council, which would be the recipient of any notice given by a member state under Article 50 TEU, and the Council, which would be involved in the negotiation and conclusion of the withdrawal agreement.

Article 267 TFEU:

"The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

a)the interpretation of the Treaties;

b)the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union".

And in Article 278 TFEU:

"Actions brought before the Court of Justice of the European Union shall not have suspensory effect. The Court may, however, if it considers that circumstances so require, order that application of the contested act be suspended."

And in Article 279:

"The Court of Justice of the European Union may in any cases before it prescribe any necessary interim measures."

So my interpretation is that if somebody wanted to impede the process of withdrawal by lodging complaints with the ECJ then they could do that, and the ECJ would have the power to put the process on hold, and even if the ECJ eventually dismissed the complaints that could possibly create enough delay to contrive a change of government in the member state.

This possibility could have been eliminated if Article 50 had expressly excluded the ECJ from having any jurisdiction over the process of withdrawal of a member state, as it is expressly excluded from having jurisdiction over some other areas by the relevant treaty provisions, but that was not done.

Jesper said...

The gist is if you don't want something to happen then don't try to stop it from happening, instead delay it, delay it some more and keep delaying it and hope that the issue will be forgotten.

Bureaucrats seldom say no. An outright refusal is a decision and bureaucrats do not like making decisions - a decision might be wrong.
A bureaucrat who has made a career will never decline, he/she will delay and the result is likely to be the same as a refusal.

Getting a bureaucrat to do something he/she does not want to do takes persistence. Constantly following up on progress, escalate where possible and constantly and tirelessly following up.

The pressure for EU-reform has been reduced, either the pressure is increased or the delaying tactic will have won.