OV9

Orange Cola wrote: Fri Dec 07, 2018 6:08 am Pretty much immediately, we haven’t actually changed anything.

Technically correct on the speed in which you could revoke Article 50 (you'd need referendum, vote in parliament (unless the referendum was given the force of law and not advisory), PM to sign the notice and deliver to the Commission) Very much incorrect on "we haven't actually changed anything". We've passed a act of parliament to implement the repeal the European Communities Act 1972 which incorporates EU law into UK law. To pass legislation to repeal the repeal is likely to take months, possibly nearly a year as the act to repeal it took 11 months from first reading to royal assent.

The only way you could fudge it is (1) have a referendum, then (2) if we vote remain, go to Brussels to ask for an extension (rather than a unilateral revocation) of the article 50 deadline to allow us extra time to pass the legislation to undo the withdrawal bill. This requires EU27 consent as it is a alteration to a treaty provision. Bear in mind that we'd be asking for an extension of months, not weeks, to pass the necessary legislation. Any one of the EU27 can veto that request and if they do, we fall out of the EU on March 29 with no deal anyway.

Perhaps you could just go ahead and revoke Article 50 rather than extend, but then you're left in a position where there is no basis for the legal supremacy of EU law in UK law. Maybe that could be fudged - I don't know. The Commission also needs to be of the opinion that the UK has revoked in good faith, if not then that would be referred to the CJEU for determination.

So altogether, this option is massively more complicated than you think and could end up in no deal anyway, a country even more divided (if that's possible) and years of wrangling to try and gain re-admission to the EU (if there isn't a third referendum before that which would be logical if we'd crashed out with no deal and the 'remain' option on the ballot was now 're-join'...).

GG. wrote: Fri Dec 07, 2018 10:37 am Technically correct on the speed in which you could revoke Article 50 (you'd need referendum, vote in parliament (unless the referendum was given the force of law and not advisory), PM to sign the notice and deliver to the Commission) Very much incorrect on "we haven't actually changed anything". We've passed a act of parliament to implement the repeal the European Communities Act 1972 which incorporates EU law into UK law. To pass legislation to repeal the repeal is likely to take months, possibly nearly a year as the act to repeal it took 11 months from first reading to royal assent.

I disagree with you on a couple of points here:
1. Constitutionally, there is never a requirement for a referendum. Parliament could vote to remain without a second referendum. Notwithstanding that the referendum held in 2016 was just an opinion poll at the time without legal effect, the passage of time may be sufficient for Parliament to decide that neither no deal or the withdrawal agreement was what we voted for.
2. The European Union (Withdrawal) Act 2018 contains flexibility as to the exit day, so it does not matter how long it takes to repeal that Act; the operative provisions would not come into effect if we did not exit and can be repealed at any time.

ETA: I am conscious that you and I argue about the mechanics of things here, but this article by David Allen Green in the FT looks at the bigger picture: https://www.ft.com/content/58a4c534-f94 ... 22a0b02a6c


Basically, no deal would still be the position, subject to the backstop on the Irish border, if no actual trade agreement is concluded in under 3 years.

Alright, I concede that constitutionally parliament could vote to repeal without a referendum but the rest of the issue around repealing the withdrawal act still remains. I guess you save 3 months out of an 18 month process if you work on that basis, however, we all know (at least I think I do - I'm sure of nothing these days) that that would be politically impossible. Manufacturers of high-vis vests would certainly do very well out of that option, I envisage.

As per my earlier post on the withdrawal act, that flexibility, in my interpretation is only so far as to align the exit day with the date treaty provisions cease to apply to the UK. Interesting I suppose, as hypothetically if parliament revoked article 50, the date of cessation of the treaties vis a vis the UK is technically not determinable / does not occur. The problem there is that that provision allows you to amend the exit date, not redefine the exit date as "never" (as the revocation of article 50 was clearly not within the contemplation of the draftsman (but obviously the extension of the 2 year period was)), so I'm not sure that provision helps.

Jobbo wrote: Fri Dec 07, 2018 11:08 am ETA: I am conscious that you and I argue about the mechanics of things here, but this article by David Allen Green in the FT looks at the bigger picture: https://www.ft.com/content/58a4c534-f94 ... 22a0b02a6c


Basically, no deal would still be the position, subject to the backstop on the Irish border, if no actual trade agreement is concluded in under 3 years.

This much was obvious and also why it was obvious the backstop was not a backstop but was likely to be invoked in any event - hence why a backstop with no ability to unilaterally invoke an exit from it (even if another time period is involved) is not acceptable.

DAG is mostly excellent but does betray that he is not, in my opinion, strictly neutral. He conclusion that if we cannot conclude a trade agreement quickly enough to avoid a backstop means that Brexit should be reversed is a logical non-sequitur (and is in reality a political position masquerading as analysis).

There was no precondition that Brexit should only occur if we can negotiate a trade agreement within a specific time and if we can't we don't bother. You can make the argument that if the British people are faced with that option as a real eventuality they should vote again to see if they're willing to risk a period of WTO rules if we can't negotiate a long enough transition period, but it is not a necessary outcome that article 50 should be revoked because a backstop would likely come into effect - particularly not given it was clearly flagged to the public that a free trade deal could take a significant amount of time.

GG. wrote: Fri Dec 07, 2018 11:17 am Alright, I concede that constitutionally parliament could vote to repeal without a referendum but the rest of the issue around repealing the withdrawal act still remains. I guess you save 3 months out of an 18 month process if you work on that basis, however, we all know (at least I think I do - I'm sure of nothing these days) that that would be politically impossible. Manufacturers of high-vis vests would certainly do very well out of that option, I envisage.

As per my earlier post on the withdrawal act, that flexibility, in my interpretation is only so far as to align the exit day with the date treaty provisions cease to apply to the UK. Interesting I suppose, as hypothetically if parliament revoked article 50, the date of cessation of the treaties vis a vis the UK is technically not determinable / does not occur. The problem there is that that provision allows you to amend the exit date, not redefine the exit date as "never" (as the revocation of article 50 was clearly not within the contemplation of the draftsman (but obviously the extension of the 2 year period was)), so I'm not sure that provision helps.

If exit day does not occur, the provisions of that Act never come into force - that is not at all without precedent. There are plenty of Acts and sections of Acts which are on the statute books which have never come into force.

The revocation of Art.50 clearly was in the contemplation of the draftsman: http://www.bbc.com/news/uk-scotland-sco ... s-37852628
- there's been enough press about him saying that!

GG. wrote: Fri Dec 07, 2018 11:23 am

Jobbo wrote: Fri Dec 07, 2018 11:08 am Basically, no deal would still be the position, subject to the backstop on the Irish border, if no actual trade agreement is concluded in under 3 years.

This much was obvious and also why it was obvious the backstop was not a backstop but was likely to be invoked in any event - hence why a backstop with no ability to unilaterally invoke an exit from it (even if another time period is involved) is not acceptable.

DAG is mostly excellent but does betray that he is not, in my opinion, strictly neutral. He conclusion that if we cannot conclude a trade agreement quickly enough to avoid a backstop means that Brexit should be reversed is a logical non-sequitur (and is in reality a political position masquerading as analysis).

There was no precondition that Brexit should only occur if we can negotiate a trade agreement within a specific time and if we can't we don't bother. You can make the argument that if the British people are faced with that option as a real eventuality they should vote again to see if they're willing to risk a period of WTO rules if we can't negotiate a long enough transition period, but it is not a necessary outcome that article 50 should be revoked because a backstop would likely come into effect - particularly not given it was clearly flagged to the public that a free trade deal could take a significant amount of time.

Why do you say the backstop was not a backstop? That is its purpose; the EU will not allow one of its member states to lose the benefit of its border-free trade which is not dependent upon the UK's membership of the EU. If we have the ability to back out then it doesn't work as a backstop.

DAG's article does not conclude that Brexit should be reversed. He states that is the decision to be made by the MPs, and that is the matter they should be considering.

There were no conditions to Brexit stated in the referendum, correct. But to say there are no conditions to Brexit is to ignore completely the background to a 40+ year relationship. It would be akin to trying to get a quickie clean-break divorce after a 40 year marriage; a wonderful concept but utterly out of touch with reality.

I was referring to the draftsman of the withdrawal act not the draftsman of the TEU.

Re acts not coming into force - are you referring to commencement orders? If so I don't think that's relevant here given the "First Appointed Day" for effectiveness under the commencement order (European Union (Withdrawal) Act 2018 (Commencement and Transitional Provisions) Regulations 2018 (Regulations)) occured on July 4 2018 with the remaining provisions of the act to occur on the exit date.

If you're saying the act is conditional then I think you're mis-reading it. It states the exit day will occur on 29 March 2019. The provision allowing you to move the exit date allows you to adjust it align it to when treaty provisions would cease to apply to the UK. Nowhere does it say that there is a condition precedent to the act that treaty provisions must cease to apply before it repeals the ECA 1972. If you can't use the provision to adjust the date because it is outside of the scope of that provision to amend the definition of exit day to "never" i.e. that is ultra vires and not aligning it with the day of treaty cessation (because that date no longer exists), then the ECA is repealed by the Withdrawal Act on 29 March come what may.

Jobbo wrote: Fri Dec 07, 2018 11:51 am

GG. wrote: Fri Dec 07, 2018 11:23 am

Jobbo wrote: Fri Dec 07, 2018 11:08 am Basically, no deal would still be the position, subject to the backstop on the Irish border, if no actual trade agreement is concluded in under 3 years.

This much was obvious and also why it was obvious the backstop was not a backstop but was likely to be invoked in any event - hence why a backstop with no ability to unilaterally invoke an exit from it (even if another time period is involved) is not acceptable.

DAG is mostly excellent but does betray that he is not, in my opinion, strictly neutral. He conclusion that if we cannot conclude a trade agreement quickly enough to avoid a backstop means that Brexit should be reversed is a logical non-sequitur (and is in reality a political position masquerading as analysis).

There was no precondition that Brexit should only occur if we can negotiate a trade agreement within a specific time and if we can't we don't bother. You can make the argument that if the British people are faced with that option as a real eventuality they should vote again to see if they're willing to risk a period of WTO rules if we can't negotiate a long enough transition period, but it is not a necessary outcome that article 50 should be revoked because a backstop would likely come into effect - particularly not given it was clearly flagged to the public that a free trade deal could take a significant amount of time.

Why do you say the backstop was not a backstop? That is its purpose; the EU will not allow one of its member states to lose the benefit of its border-free trade which is not dependent upon the UK's membership of the EU. If we have the ability to back out then it doesn't work as a backstop.

DAG's article does not conclude that Brexit should be reversed. He states that is the decision to be made by the MPs, and that is the matter they should be considering.

There were no conditions to Brexit stated in the referendum, correct. But to say there are no conditions to Brexit is to ignore completely the background to a 40+ year relationship. It would be akin to trying to get a quickie clean-break divorce after a 40 year marriage; a wonderful concept but utterly out of touch with reality.

We're having two discussions within one thread here!

I don't mind if you call it a backstop - all I was pointing out is that much has been made of the fact that it is something which should not occur or at least is not likely. In reality it is more likely to occur than not. It is not what people commonly would interpret a 'backstop' to be under the plain meaning of words. If you contemplate it being almost certain to occur it is merely an intervening state of affairs.

I didn't read DAG's article in full I was going off a tweet he posted to that effect. Clearly the article itself must reach a slightly different (and much more justifiable) conclusion.

Legally there are no conditions to Brexit, but you can argue the political mandate for it from the 2016 referendum may now be insufficient. Not an indefeasible argument but clearly one that carries weight.

As expected, the full court has ruled that we can unilaterally revoke Art 50.

This line interested me though: "A group of anti-Brexit politicians argued the UK should be able to unilaterally halt Brexit, but they were opposed by the government and EU."

I'd have thought the EU were all for it..!

Despite ultimately NOT wanting Britain to leave, initially, I'd imagine now, the EU are not looking forward to the prospect of dealing with Britain in the event that we now DON'T leave.

There must be consequences for us if we eventually stay (deterrent etc.) but at the same time, how to do this without reinforcing the basic arguments of the leave campaign - that the EU is not overall, in our best interests.

No matter what the Remain campaign may think, there's no going back to the way it was before...

Simon wrote: Mon Dec 10, 2018 8:40 am
I'd have thought the EU were all for it..!

Because it potentially encourages others and they presumably also couldn't be sure that the ability to unilaterally revoke would be couched as tightly as it is (i.e. unilaterally revoke only in good faith where we think you're doing it for the right reasons).

The judgment doesn't refer to doing it in good faith. Simply unequivocally and unconditionally and in accordance with its constitutional requirements. Paras 73-75 are the important bit: http://curia.europa.eu/juris/document/d ... =first&par

I think the word which would trip up a state wanting to use this to renegotiate the terms of a withdrawal agreement is 'unequivocally'; that necessarily requires the member state not to keep vacillating about whether to leave.

That's very interesting (I haven't read the judgment yet - thanks for the link) and a material difference from the AG's opinion. This reinforces my point to Simon about why the EU politically would have wanted to fight shy of this outcome.

Simon was just commenting on the identity of the people who brought the action - it wasn't in the name of the EU, but the parties did include some EU politicians. Doesn't represent the EU's view though!

Jobbo wrote: Mon Dec 10, 2018 10:31 am Simon was just commenting on the identity of the people who brought the action - it wasn't in the name of the EU, but the parties did include some EU politicians. Doesn't represent the EU's view though!

They may not have been parties to the action but the below is pretty clear in the judgment:

38 The Council and the Commission, while agreeing that a Member State is entitled to revoke the notification of its intention to withdraw before the Treaties have ceased to apply to that Member State, dispute the unilateral nature of that right.

39 According to those institutions, the recognition of a right of unilateral revocation would allow a Member State that has notified its intention to withdraw to circumvent the rules set out in Article 50(2) and (3) TEU, which are intended to ensure an orderly withdrawal from the European Union, and would open the way for abuse by the Member State concerned to the detriment of the European Union and its institutions.

...

42 In order to guard against such risks, the Council and the Commission propose that Article 50 TEU should be interpreted as allowing revocation, but only with the unanimous consent of the European Council.

Fair enough; I was pointing out that two of the claimants were MEPs so they have the opposite view.

Anyway, I think this may end up leading to a second referendum. I'm not in favour of that because it would be a further abdication of parliament's responsibility and whatever the outcome, a lot of people are going to feel disgruntled. We've had over 2 years of people being disgruntled so far and it's achieved very little. Plus I really don't want Farage to make a comeback

The number of gammons on Twitter arguing that this is some EU plot to scupper Brexit, despite it proving UK sovereignty, is hilarious. They're harrumphing all over the place.

NotoriousREV wrote: Mon Dec 10, 2018 11:29 am gammons

Introducing this new word to me encapsulates the sole - SOLE - positive outcome for me of Brexit and anything Brexit-related. Very good

To paraphrase something someone else said: it’s not my successful, well educated friends that are sharing “Leave means Leave” memes on Facebook.