An EU without the UK

Under embargo until 1:00 pm, 27 October 2016

The Rt Hon Lord Owen speaking to the Swiss Civil Society Association in Zurich on ‘Which Europe?’, Thursday 27 October 2016

Excerpts only below. Read the full text here: ‘zurichspeech1

It is very difficult in October 2016 to point out all the possible consequences of Brexit since the British government has wisely decided to research carefully its next steps and announce its policy no later than the end of March 2017 when it is expected to trigger Article 50. By then the EU and the UK must have reached an agreed interpretation of Article 50.

I draw a distinction between negotiations under Article 50 which I see as flexible and exit arrangements which are fixed and need a firm timetable. The leave vote is not a conditional instruction. Under Article 50 the UK will leave as a member of WTO if there is no EU bespoke agreement.

The government will introduce UK legislation on the European Communities Act 1972 (ECA). If they are wise through one clause they will carry over all EU law into UK domestic law. That means at the outset of the negotiating process nothing will change. There will be a political commitment to not make any changes in the EEA Treaty on trading and Customs Union issues without the agreement of the EU Council of Heads of Government prior to the exit procedure being put in place.

Yet this ECA UK legislation under a fair-minded interpretation of Article 50 must enshrine the legal right for negotiations to start with other countries now on these matters. The exit timetable can, therefore, accord with the French President saying on 30 August 2016, “For France, everything must be concluded by 2019, preparation and negotiation.” but that cannot be a cliff edge.

The UK has to be able to start negotiating international trade agreements before exit. This is a non negotiable issue. So is the UK having full WTO membership in our own right. To fail to have these two issues put into operation and sanctioned under UK law in the ECA legislation would be gross negligence. Under any of the options for negotiating we must have these safeguards or we otherwise face being pushed over a cliff edge after waiting for an EU decision in 2018-9 which might prove to be unacceptable. An EU attempt to ban such arrangements while trade agreement negotiations proceed with the EU would necessitate the UK refusing to proceed under Article 50 but to exit instead under the Vienna Convention on the Law of Treaties ‘Part V: Invalidity, Termination and Suspension of the Operation of Treaties’ (Article 42- Article 72) pp. 342-349.

Separately the ECA legislation must enable other provisions after prior EU discussion to provide for a staging of the UK exit. At a minimum the UK has to have some staging on non trade issues.

For example, Legislative Provision:

  1. to cut off all European Parliamentary Election expenditure and participation for UK MEPs well in advance of the election date in 2019. Also detailed financial matters relating to existing UK MEPs’ future pension arrangements and other matters which should be a UK responsibility.
  2. for UK citizens currently employed by EU institutions where contracts are terminated directly related to UK exit should be an accepted UK cost and having that clarified will start to create a mood of trust in Brussels.
  3. settling all matters relating to the right of abode of existing EU citizens in the UK to remain in the UK as soon as possible.
  4. settling all aspects of fishing and agriculture not involved in trade treaties. If we can reach agreement before 2019 why not implement? Fishing is not a bargaining counter in the way that fixed tariffs may well become. It would be helpful, in particular, if the Scottish Parliament and other devolved Assemblies were involved as soon as possible in the exercise of what must be for them devolved powers over fishing and agriculture. There are also issues in UK waters, particularly with France and Spain, over historic fishing rights. They too would be better made sooner rather than later and would help to change the atmosphere in Paris and Madrid as we start to act as good neighbours under Article 8. Also respect historic rights to self-determination as over Gibraltar.

Read the full text here: zurichspeech1