Leavers of Power – Exit by EU & UK Governments’ Own Rules

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To be successful in Britain’s upcoming EU referendum, a well-organised ‘Leave’ campaign would place a heavy – and sustained – emphasis on communicating to the electorate exactly what voting to leave the EU would result in. The campaign, that is to say, would focus on setting out the procedures which would follow (more or less immediately) from a ‘leave’ victory. If these procedures are shown to be the safe and guaranteed outcome of a ‘leave’ vote – which they are – a focus on them would likely persuade swathes of wavering voters to choose “Leave the European Union” on their referendum ballot papers.

The ‘Remain’ campaign knows the power of this strategy and seeks to distract its opponents away from using it. They have been very successful in doing this by diverting attention towards abstract arguments over the type of ‘agreement’ Britain might end up with should it vote to leave – at the same time as ring-fencing debate to their own narrow definition of what the referendum offers.

Many ‘leavers’ have fallen for this ploy and, as a result, are willingly collaborating in undermining their own cause. Indeed, we may wonder if the referendum question was changed from an ‘In/Out’ to a ‘Remain/Leave’ one in order to bog down those campaigning for withdrawal in pointless (and fractious) discussions over what Britain must leave with. Taking this position not only makes the ‘leavers’ sitting-ducks for all sorts of voter-muddling nitpicking and distortion from the opposition, it also results in a foolish – and completely unnecessarily – concession to a false premise that providing an answer to the ‘leave with what?’ question has a central bearing on the electorate’s eventual decision-making at the ballot box. It doesn’t.

Fixing the debate, instead, onto the procedures the electorate would trigger with a ‘Leave’ majority allows those campaigning for this result to use both the EU and British governments’ own legal stipulations in defining (and limiting) what would follow from a victory. That is to say, by providing the formal, longhand version of the “Leave the European Union” choice (as it will appear on the ballot paper), the campaign will fully inform voters as to exactly what they are – and are not – voting for.

As such, the fully informative version of the current referendum question would be as follows:

Should the United Kingdom remain a member of the [soon-to-be, two-tier] European Union or should the United Kingdom negotiate and conclude an agreement [with the EU], setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the [European] Union. [Whereafter] the [EU] Treaties shall cease to apply [to Britain] from the date of entry into force of the withdrawal agreement(1), [and on condition that] a referendum about whether the [agreement] should be ratified has been held throughout the United Kingdom(2)?

As we can see, the unpacked version of the question contains nothing other than mandatory procedures provided – in their own words – by the EU and British governments… (1) from Article 50 of the Lisbon Treaty and (2) from the UK government’s EU Act 2011. There is nothing at all in the question requiring voters to decide upon the type of future agreement Britain should have with the EU, or necessitating an existing, EU-sanctioned model of an agreement as a precondition for deciding to leave (and acting upon that decision should it be the preference of the majority). All voters need to know, going into the ballot, is that a vote to leave will trigger this small number of easily understood – and safe – procedures resulting in the formulation of a new agreement for a future relationship with the EU – the British option – which they can later decide whether or not to bring into force.

The only additional tidbits of information required in support of this question is that the procedures will likely take two years to complete and that should the resulting agreement not be accepted (at the obligatory latter referendum referred to in the question), Britain’s existing relationship with the EU will continue to run. Both of these supporting assertions are also fixed in EU and international treaty law.

A ‘leave’ campaign organised around these factual (and legal) procedures has no need at all to collude in the ‘remainers’ scheme to overload and overwhelm the debate with discussion of Norway, Swiss or Outer Mongolian ‘options’. Mention of such agreements would only have relevance to the debate as extreme fallback options – in the highly unlikely event that the EU refuses to negotiate withdrawal at the withdrawal negotiations it offers as the procedure for doing so.

Of course, the drawback some campaigners might find in adopting such a clear-viewed and straightforward ‘leave’ strategy, is that it would deny them the opportunity to make endless, daily pronouncements on considerations which can be seen to have nothing to do with the actual question the referendum is asking. Instead, perhaps, they could unite in repeatedly driving home the very real and easily-digestible message of what Cameron’s referendum is actually all about (despite what Cameron wants the public to think it’s about) – what voting to leave will actually do, and how it is the bulletproof choice.

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Necessity – The Mother of Intervention

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The critical error with the Article 50-based ‘exit plans’ so far proposed for Britain’s withdrawal from the European Union is that they all fail to take into account the immediate shift in the balance of power a formal notification of withdrawal would bring.

Even the EU itself recognises the sudden change in the dynamics of its relationship with a member State acting upon its intention to leave. It is in response to this foreseen situation – and the very real danger it holds for the EU – that Article 50 was introduced with the Lisbon Treaty. The article acts as a container in which the EU can acknowledge and manage that de facto power-shift and move towards a beneficial – or, more precisely, the least-detrimental – outcome for itself.

An exit plan built upon the premise that the EU is largely superfluous to the process of a national government adopting international trade law should (were the plan either a bold or intellectually sound one) identify the circumstance in which all the EU’s member States would become painfully aware of this home-truth. Just such a sobering moment would arrive – with all of its imminent calamity – on the day a powerful State withdraws from the EU without an Agreement in place. In this event, all conceptions of the EU would quickly transform… from it being an idealised, benign supra-government (as it so promotes itself) – to it being a dangerous and dispensable obstacle to the continued wellbeing of many millions of European citizens. The people, that is, facing the loss of livelihoods which depend – directly and indirectly – upon a continuance of the vast trade networks which exist between them and the departing State. At this juncture, necessity becomes the mother of intervention.

Clearly, the EU would want at all costs to avoid a turn of events in which its own superfluousness (as a layer of government) is brought starkly to the public fore by the act of its own prior intransigence around the Article 50 negotiating table. Especially so, when word on the street and strada is that all Britain wanted (and offers) is a free trade arrangement – along with the ability to manage its own borders and the return of its sovereignty.

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Any planned exit procedure with the wisdom to recognise the precarious situation the EU would immediately find itself in as a result of Britain’s formal notification of withdrawal, would never attempt to pre-handcuff the country to something as timid and lacking in foresight as a ‘Norway option’ followed by decades of further disentanglements (should governments of the day have the political inclination to continue).

The provision of Article 50 is – to those mindful enough of its concessionary function – indisputable evidence that the EU recognises and accepts an imperative to organise and agree to something substantially different with a nation having the power and stature of Great Britain. Should Britain send just fifty international negotiators, for example, to conduct these vital constitutional talks, it would represent a massive 200,000 man-hours of negotiation over the EU’s allotted timeframe of two years in which to make a conclusive, far-reaching new agreement.

An effective exit strategy, therefore, is one which recognises the very strong hand Britain would take with it to the negotiating table and the near certainty of the EU acquiescing fully and rapidly to its very reasonable demands. ‘Norway options’, on the other hand, prove nothing but the EU’s historical success at crushing a nation’s vision and undermining its political confidence.

 

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Muddying the Waters – a Messy Collaboration

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If Cameron’s recent press statement (issued by a senior aide) tells us anything, it is that the Prime Minister is determined to keep risk and uncertainty as the central axis of the “remain” campaign in the run-up to the first EU referendum. Let’s take a look at Cameron’s statement on a second referendum:

“The Prime Minister is clear that is simply not going to happen. From the outset, he has been clear this will be a straightforward in/out choice and that’s exactly what it will be. Leave means leave,”

Leave does of course mean leave. But there is a legal procedure for leaving set out by the EU in Article 50 of its Lisbon Treaty and by Cameron himself in his ‘referendum lock’ law.

“It is not credible to suggest that the majority of the British public could vote to leave and then the UK government would ignore the voters and negotiate to remain.”

It isn’t at all credible to suggest this. But, in his statement, Cameron is not telling the British people what is the credible government response in the event of a majority vote to leave.

“Trying to muddy the waters as they are and suggest that we can have a second chance if we vote leave suggests that the Leave campaign lacks confidence in its own case and is worried about the risks. Otherwise it would unambiguously advocate a clean exit”

This is the ‘money’ quote. It’s worth wondering who exactly is trying to “muddy the waters” here? Cameron is dishonestly isolating the first vote as a finality in order to establish a perception of ‘risk’, ‘worry’ and a ‘lack of confidence’ in the electorate’s minds when considering how to cast it. Were the Prime Minister to set out the government’s procedure following a win for the ‘leave’ vote – which includes a mandatory second referendum – risk and worry would no longer be available for him to exploit. Instead, voters would know they could use the ballot box without worry and confidently cast a vote to leave – knowing their risk-free vote is only the referendum key to formulating a new concluded relationship… a formal agreement which voters can then examine prior to returning to the ballot box to either lock it into force or lock Britain’s future into continuing as a member State of the EU.

It’s a pity many in the ‘leave’ camp are collaborating with Cameron in muddying the waters with risk and uncertainty, when, instead, they could be clarifying for voters the safe and straightforward choice they have before them in activating a negotiation process which will wholly determine every aspect of a possible future relationship between Britain and the EU – and, by informing the electorate of this fact, massively increase the likelihood of winning a majority vote to leave.

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‘Flexcit’ and Article 50

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The blogger The Boiling Frog (TBF) has written an excellent piece on “Article 50 and withdrawal”. His analysis correctly identifies how the EU’s procedural stages of accession (Article 49) closely resemble those of succession (Article 50) – as set out by the Lisbon Treaty.

Concerning accession, TBF notes, “a country formally applies for membership, then begins a period of negotiation mainly based on whether the country wishing to apply[sic] is able to sufficiently execute EU law…” This execution, of course, being the main condition for a country’s desired membership.

However, in describing the “remarkably similar” inverse process of succession, TBF unfortunately passes straight over “negotiation”, with no corresponding outline of what that process would entail or indeed what its intended goal might be. As we shall see, the dynamics of negotiating succession, rather than being remarkably similar to accession, are its diametrical opposite.

In Article 50, the EU accepts that a country intending the withdraw from the EU can do so voluntarily and at any time it chooses – so, clearly, the period of negotiation set out by the article would be concerned with whether a country acting upon this intention to withdraw is sufficiently able to execute a workable relationship with the EU as an independent nation. And, rather than this workable relationship being a legal condition for a country’s withdrawal, it is only the EU’s strong desire for there to be one which the Article’s negotiation period is provided to address.

This, of course, represents a crucial difference in the balances of power between accession and succession negotiations. Whereas the surrender (or concession) conditional to a negotiation of accession is unilaterally and exclusively that of the party desiring membership, the surrender conditional to a negotiation of succession is that of the party – or parties – desiring a future workable relationship.

As we know, negotiation is defined as the process whereby the necessary preparedness for surrender is consented to at the outset and an ensuing exchange determines how much or how little is available to be surrendered in the interests of reaching a desired end. In the case of succession, that desired end being the EU’s overriding wish to avoid the trade chaos guaranteed itself by its failure to have a workable relationship in place in the event of a country such as Britain leaving. The EU, of course, is able to foresee that – an albeit battered and bruised – Britain would still be there after that period of continent-wide upheaval resolves… whereas the EU itself would almost certainly be gone as a consequence of it.

We can understand then that the EU places such high value on its desire for a workable relationship following a voluntary withdrawal that it is openly offering an indeterminate surrender as the means of getting one. That declaration is essentially what Article 50 is and its mechanism effectively preempts and removes any obstacle to a country – cognisant of the sudden and huge shift of power in its favour upon triggering a notification of withdrawal – fully exploiting the negotiating table as the alternative to a much-feared risk of it walking away from an (otherwise) recalcitrant EU with no new relationship in place.

Regular readers of TBF’s website will know that he is a fully signed-up supporter of Richard North’s so-called ‘exit-plan’, Flexcit. Although North has constructed his Heath Robinsonesque scheme around the keystone of Article 50, his description of the Article in Flexcit shows an alarming (and sometimes humorous) failure on his part to comprehend the nature of its provisions and the defining function of the negotiation process it offers. And into this vacuum of unwanted knowledge Flexcit’ posits, instead, the needlessly reckless scenario of Britain unilaterally surrendering – in advance! – to whatever conditions he assumes the EU has for withdrawal… thereby Flexcit effectively consigns Article 50’s negotiation period, unused, to the dustbin at the same time as pre-handcuffing Britain to decades of further, wholly unnecessary, EU contraptional interference.

North’s lack of intellectual and objective rigour here results in his battle plan, consequently, lacking any strategical correspondence to the actual terrain being faced. As a detailed declaration of Britain’s prior and total capitulation to the EU (before any battle commences), Flexcit may have some merit. But – unlike the EU itself – North’s apparent inability to foresee the dynamic shift in the balance of power a notification of withdrawal would bring, leaves Flexcit very far from being a convincing ‘plan’ with which to fight – let alone win – a referendum campaign.

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EU Referendum – Taking NO for an Answer…

ref1-bannerIt’s easy for the NO campaign to reframe the debate in which Cameron’s referendum will be fought. The strategic advantages of doing this will vastly increase the chances of winning a handsome victory for those campaigning to leave the EU.

Firstly, the NO campaign must insist that Cameron plainly states what action his government will take in the event of a NO majority. This applied pressure on Cameron must leave him in no doubt that a response similar to the one he gave on the Lisbon Treaty ratification debacle – kicking the issue into the long grass with ‘we will not let matters rest there’ – is unacceptable in this referendum. The electorate must be fully informed of the consequences of voting either way as their condition for participating in the event – rather than boycotting it.

The only legal avenue Cameron can take in the event of a NO majority is to invoke Article 50 and begin negotiations towards a new agreement between Britain and the EU for a post-exit relationship. However, that agreement, once finalised, cannot come into force (to replace EU membership) unless its content is consented to by the British public at a further referendum.

So, a NO vote in the EU referendum 2017 translates as a ‘yes’ for the safe delivery of a fully-fledged agreement (endorsed by both Britain and the EU)… which the public (and the business community) can then thoroughly evaluate before returning to the ballot box… to either vote the agreement into immediate force, or vote to reject it and retain EU membership.

Cameron’s referendum can be used by the NO campaign as the first step in the risk-free and voter-friendly route out of the EU proposed by the Exeunt procedure. The only obstacle to this strategy is not Cameron’s reluctance to answer what a NO vote means… but a NO campaign so distracted by useless and irrelevant ‘exit-plans’ that it fails to even ask him.

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Early Doors?

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‘EU Referendum’ blogger Richard North, frustrated at the lack of serious attention shown in his UK ‘exit plans’, has recently been toying with “the temptation to walk away” from the campaign. A sentiment echoed by fellow blogger ‘Scribblings from Seaham’ who, rather forlornly, asks if is understandable to want to  “pack up shop and go home”?

Given the circumstances, it is very understandable. ‘Packing up shop and going home’ is one response to a general disinterest from prospective customers. Another, of course, is to examine one’s stock to see if something better and more marketable would attract attention and kick-start some business.

In this respect, the golden rule of marketing is that if one’s product is a solution to a problem that doesn’t exist (nor is ever likely to exist), no matter how well-made it is – it will never sell.

As a good example: one could laboriously construct an ‘intricate framework for future relations between Britain and the EU’ (with a fancy name, like Flexcit) and promote it as an essential solution to the problem of “no-turning-back” once Article 50’s two-year negotiations are triggered. Unfortunately, there are two flaws in this model. The first is that Article 50 contains not the slightest hint of there being no-turning-back as a condition of its use. In fact, the label on the article’s tin leaves no doubt in anyone’s mind that its use, throughout, is on an entirely voluntary basis. The second flaw (rather embarrassingly) is that the whole purpose of invoking and using Article 50 is (drumroll…) to build an ‘intricate framework for future relations between Britain and the EU’ – from the ground up – tailor-made for Britain – and employing the only people with the authority to do the job… the EU and British governments.

Of course, one could take these home-truths on board and adjust one’s stock accordingly… Or, one could continue railing at how ‘dumb’, ‘ignorant’, ‘clueless’ (etc, etc,) one’s non-existent customers are (before, inevitably, packing up shop and slunking off home).

Meanwhile, Exeunt actually provides a thorough unpicking of Article 50 – and on the back of that understanding outlines a workable solution for an all-inclusive and effective exit campaign.

 

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EU Referendum – Mr Cameron’s Half-A-Question Trick

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As things stand, the answer the British government is seeking to know in its upcoming referendum on EU membership is an impossible one for the electorate to give. The preferences allowed for on the ballot paper leave out information an electorate would require to have before being in a position to provide an informed response.

If a representative of HM Government turned up at a pub or shopping centre, clipboard in hand, and asked any member of the public “Should the United Kingdom remain a member of the European Union?”, the obvious reply would not be ‘Yes’ or ‘No’ but, ‘…or do what?’.

We can be sure, I think, that the government knows exactly what the ‘what?’ is, but is reluctant to provide the public with that information and hope they won’t notice when being asked the half-question which is now proposed for the referendum’s ballot papers.

If the purpose of a referendum is to yield authority to ‘the people’ on matters of constitutional importance, then the people have a requirement to know – and the government has a duty to tell them – exactly what the consequences of their decision will be before making it. As it is, the question “Should the United Kingdom remain a member of the European Union?” appears constructed to provide the electorate with one consequence (continued EU membership), but stilted to leave a black hole in absence of the other (???).

As Britain currently does ‘remain a member of the European Union’, the country remains legally bound to comply with its rules and regulations. And in the event of a ‘NO’ vote majority in the referendum, the EU’s rules and regulations make available a clear course of action to take when no public mandate remains for membership. That course of action – formally arranging for a withdrawal – is contained within Article 50 of its Lisbon Treaty.

With this EU procedure being so readily to hand for Mr Cameron to point towards as the other (missing) consequence of the electorate’s decision in the referendum, we might wonder what characteristics Article 50 has which apparently makes the Prime Minister so keen to keep it out of view? The article provides for a State’s voluntary withdrawal – facilitated by the negotiation of a broad-ranging new Agreement to use in place of membership. And the voluntary underpinnings of Article 50’s process allows for the State to put that concluded Agreement itself to a referendum (“in accordance with its own constitutional requirements”) as the ultimate decider of whether that withdrawal takes place or not.

As we can see, the missing part to Mr Cameron’s referendum question would, were it to be included, inform the electorate of an option so compelling the likely result of the vote would be unanimously in its favour. The full question would go something like this: ”Should the United Kingdom remain a member of the European Union, or should the United Kingdom negotiate a new Agreement with the European Union to use in the event of a future referendum decision to withdraw?”

Whether acknowledged or not, that is the choice before the public when they go to the ballot box in 2017 (or before). And whether acknowledged or not… the Europhiles are slowing but surely being edged into a corner.

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Welcome to the Exeunt website. Comments can be posted here.

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