Don’t trigger Article 50 – just leave

Theresa May © Getty Images
Theresa May shouldn’t bother discussing anything with the EU

Despite my best attempts, says professor of international law Ingrid Detter de Frankopan, everyone has been deaf to the painstakingly simple course for the United Kingdom to take: don’t trigger Article 50 at all.

Second rate lawyers are misleading everyone in the country by insisting that, in order to leave the European Union it is essential to “trigger” Article 50 in its entirety. This line has been swallowed whole by the government, the media and commentators. It is, however, absolute nonsense. Under international law and under Article 50 (1) itself, only notice to leave is necessary.

The horror that I feel about this misdirection is compounded by that the fact that if Article 50(2) is ‘triggered’ it implies that the UK government accepts that the EU will decide the conditions of UK’s withdrawal. This has serious consequences. An arbitrary two-year negotiation window; a supreme agency problem between negotiating parties (the European Commission and various powerful governments) and a ratification process that is far from certain. All the while we will be contributing approximately £40bn gross, or £20bn net, to the European project. We will be paying for them to negotiate – and once we get to the end of the timeline there will be no real incentive to reach prompt agreement, as well as no reason to be true to their negotiated position. In fact any excuse of an election, a financial crisis or a small war – could derail years and millions of man-hours of work.

Now turn this situation on its head. The United Kingdom withdraws from the European Union (as directed by the people of the country in the referendum of June 2016) in March 2017 with immediate effect. The European Union loses almost 14% of its revenues overnight. I suppose our mission / delegation will be received with a great deal more alacrity then they would otherwise. This would turn the screw on the Commission and force them to conclude negotiations rapidly. It would give them less of a chance to strike back, ask for an “exit” premium and force a rapid conclusion on all parties. While it is true that this could descend into a tariff war – it is likely that we would end up with this situation at the end of two years anyway. There is the Commission, 27 other governments with diverse objectives ranging from using Britain’s exit to foster greater unity or to underline the need for retaining sovereignty within the Union.

Most organisations have provisions for withdrawal of members in their constitutions. Should such provisions be lacking, there is still an implied power of member to leave. Every international organisation is founded on a multilateral treaty signed and ratified by its initial members. Other members may later join by accession to this treaty. But the treaty of an organisation has a double function: it is both a contractual agreement between the initial and later members as well as a constitution of the organisation they have created. But when there is a clause allowing a member state to withdraw, there is a further contractual aspect. In such a case the constitution of an organisation is coupled with a contractual right to withdraw from the established organisation.

To withdraw from an organisation is an implied condition in the founding constitution, in the same way as the organisation enjoys implied powers to achieve the purposes for which it was created. But the current member states of the organisation remain its masters: they are free to amend the constitution, to extend or reduce the organisation or to abolish it should they so wish. Any member who longer wishes to be a member is always entitled to leave. Thus, there is always a unilateral right to withdraw from an organisation.

The European Communities, later the European Union, lacked such provisions before the Lisbon Treaty inserted Article 50 to cater for states that wished to leave. But this article has been disastrously misunderstood by the numerous commentators that now consider themselves experts in the constitutional law of the European Union.

In a sense, some states have left the European Communities/EC/EU, but this has happened so far only in certain very exceptional situations: Algeria left after its independence from France in 1962. After a referendum in Greenland in 1985, this “autonomous country” that is still under Danish sovereignty left the EC. Greenland was concerned about the overfishing by other European countries in its waters. Saint-Barthélemy, a former French colony in the Caribbean, left on its own demand when it attained independence, separating from Guadeloupe in 2007, and was converted into an associated overseas territory with effect from 2012.

Some of those who have so far commented on the possible interpretation of Article 50 have been misled by attempting comparisons with “divorce” settlements. Others have, quite rightly, considered it necessary to have recourse to the Vienna Convention on the Law of Treaties of 1969. But a closer look at Article 50 makes us realise that the Vienna Convention is not really relevant in this context: it only applies if there is no provision for withdrawal in a Treaty; and there is, precisely in Article 50.

Why is it then so difficult to accept that Article 50 should be read and understood as it is phrased? Indeed, if we refer to the Vienna Convention in that context, we know that article 31 emphasises that

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

I have learnt to be suspicious of the European Union. I did set out much that had been little known about EU’s secret plans and projects in my recently published book The Suicide of Europe. Now I have been put on notice again. I asked myself why would the EU be to keen for the UK to leave at once?

Immediately after the UK referendum on 23 June 2016, the president of the European Parliament, Martin Schultz, insisted, the UK government should contact the EU by Tuesday 28 June to indicate its intention to leave. Why this haste? I should have thought the EU would be pleased to receive a massive sum every week from the UK – whether or not it is exactly £375m or £166m after rebates and paybacks or any other sum; in any event it is a large sum.

Why would the EU not be happy to accept this for as long as possible? Could it have something to do with Article 50? Well, before the Lisbon Treaty there was actually no right at all to leave the then EEC. (Article 312 EC, Article 51 TEU, and Article 208 of the EURATOM Treaty, all concluded for an unlimited time) This would seem to confirm the actual, real (but fairly secret plan to turn the EEC/EU into an irreversible federation. There were no provisions for exit in the earlier treaties. But there was a surge of protests from various member states, from academics and from courts, that it is not possible to keep sovereign states in an organisation against their will.

There was an important judgment by the German Constitutional Court affirming the right to leave the EEC whatever the Treaties stipulate: Maastricht Urteil (BVerfGE 89, 155 of 12 October 1993). The court stated that the states are still “the masters of the treaties” and can always decide to abandon the organisation, revoking their acts of accession by a contrary unilateral denunciation. After severe criticism from many quarters of the federalist agenda, it was finally agreed to include a clause on withdrawal in the planned EU constitution. When this was not ratified the clause was incorporated in the Lisbon Treaty. The withdrawal clause confirmed that the EU is not (yet) a federal state.

Again, the German Constitutional Court confirmed in the Lisbon Urteil (BVerfG, 2 BvE 2/08 of 30 June 2009) that the EU even under the Lisbon Treaty, is not (yet) a federal state. Therefore, constitutional safeguards of national identity still exist in the EU.

As an aside, the Lisbon Treaty is not easily accessible as I have learned from scouting around for an official comprehensive copy that includes all modifications. The version of the Lisbon Treaty on the UK government’s website has a tag by the then foreign secretary, David Miliband, that “the text is illustrative and has no legal force”; the version on the EU site says “this version available for information only”. I then sent a formal request under the Freedom of Information Act to the FCO asking for an official comprehensive copy but I was told that there was no such copy available at the FCO. I should, I was told approach the government of Italy as that government is the depository of the Lisbon Treaty. Knowing Rome well, I shuddered at the thought of waiting for an official comprehensive copy of the Lisbon Treaty, preferably in English, in the corridors of the Italian Foreign Ministry.

But the Article 50 we do have provides that:

1. Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A member state which decides to withdraw shall notify the European Council of its intention. 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.

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.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing member state shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a state which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

Thus, as provided in Article 50(1), a Member State may withdraw without any other conditionsin accordance with its own constitutional arrangements”. Since the United Kingdom is singularly fortunate in this situation that there is no written constitution, the UK is clearly free to act in any way it sees fit and proper. It is important to stress that there is no need for any agreement at all with the EU. (The UK is also fortunate not to have the euro as a withdrawal for the eurozone states is much more complicated).

The option is there under article 50 (2) to negotiate further relationships with the EU. But we may not wish to do that. It may even be extremely unwise to do so. Nor are we obliged to discuss anything. But if we do start engaging under article 50(2) we may live to regret that as the EU can drag out such negotiations endlessly. The EU might even introduce new conditions and requirements.

Under article 50(3) the treaties will only cease to apply from the date of the withdrawal agreement “or, failing that, two years after the notification referred to in paragraph 2,”. This implies that there may not be any “withdrawal agreement” in which case the two year period becomes relevant. But if the UK only exercises its right to withdraw from the EU under article 50(1) there is no need for any “agreement”.

In the media I see endless comments and discussion about who is going to be in the ‘negotiating team’ in Brussels. Have the UK’s leading politicians not yet learned that by entering at all in such discussions we just show our weakness: we have the right to leave and the EU has no right to stop our immediate exit not to impose any conditions. So the notice under article 50(2) is sheer folly. Are the “experts” – so wrong in their predictions about the referendum – that have indoctrinated everyone about the need to “trigger” and the need to “negotiate”? Could there be some self-interest there for the experts to be consulted?

Under international law and under the Vienna Convention on the Law of Treaties of 1969 the UK is entitled to leave by mere notice under article 50(1). There is no need to “trigger” further agreements or discussions with the EU. The UK even has the right to leave at once.

Since law, medicine and even politics are all based on common sense it would seem to me that the main and urgent issue is to disentangle ourselves as soon as possible from the rules and regulations of the EU. Why would we want to engage and discuss “trade deals”. What trade deals? The EU has taken years and years to negotiate a string of trade deals that are not even that advantageous to the UK. Surely the UK could just start its own trading under other arrangements? As an expert on treaty law, I fail to understand why you need any “trade agreements” to trade? I agree with businessmen like Tim Martin of Wetherspoon and Lord Bamford of Bamford JCB that to trade you just trade.

Another fallacy I see in the daily press is that “staying in the single market implies a duty to accept free movement of labour”. Why? There is no organisation called “The Single Market”. EFTA was and still is a free trade area but certainly without any free movement of persons. The EEC/EU was established as a customs union and then adopted free movement of goods, money and persons as basic non-negotiable rules.

But the UK is leaving this customs union, allowing the possibility for truly international trade world-wide. The discrimination against developing countries outside the EU, many members of the British Commonwealth, will cease. The EU dumping in such countries will be reduced by absence in such despicable schemes by the forceful UK.

We should be suspicious: the haste on the part of the EU is surely due to the urge for the UK to “trigger Article 50” as the expression now goes. Nothing obliges the UK to “trigger” anything short of notifying the EU under article 50(1) that it is leaving. To ‘trigger’ article 50(2) we leave ourselves again in the uncertain but domineering hands of the EU.

The word “guidelines” in that paragraph illustrates that we are not talking about any compulsory rules or any compulsory procedure. It is article 50(1) that gives the United Kingdom as definite and unconditional right to leave the European Union. We should be circumspect in entering in further discussion and fear the EU pretending to be bearing gifts. Dona ferentes has historical lessons to teach us. The EU needs the UK far more than the UK needs the EU and we have nothing to gain from “discussions” or further “agreements” – unless such agreements are with non-EU states such as the United States, India, Brazil and China. There is the future.

Ingrid Detter de Frankopan is a professor of international law and holds three doctorates, one specifically on European law. She is the author of  The Suicide of Europe available on Amazon

  • Jerry Lanning

    I’m all for pulling out immediately and tidying up afterwards. Otherwise we face the prospect of tens of thousands of bureaucrats dragging things out, dotting every ‘i’ and crossing every ‘t’. By the time the process is completed the EU will most probably have begun to disintegrate anyway.

    • Diana Mackintosh

      I agree and the longer we wait the more it will cost. In the end we just have to bite the bullet, accept some pain then get on with it.

    • Sean_OHare

      I’m not for pulling out immediately, although I am for a negotiated withdrawal. I have to say that I think the EU’s disintegration began some years ago.

    • Trend Shark

      I’m glad you’re not responsible for the legal process then

    • stormin

      Spot-on!!!

    • Robin

      We should be prepared to do this if it becomes apparent the EU are stringing us along. I’d prefer a more orderly exit. Whether that’s achievable is another matter. The EU do not have the reputation of being easy to do business with.

    • VanceWells

      Its already begun.

  • June Bertram

    Thank you for this article, there must be lots of gravy to be supped and that seems the only reason for triggering any article.We are kept down and in the dark by weasel words as usual.When are our leaders going to be honest with us?

    • ExasperatedMe

      Never

    • durka durka

      This article is nonsense what she is basically saying is this, we no longer follow the rules of the treaties we signed.

      ok so do we get rid of those treaties and make new ones?

      Now we ignore them.

      Ok

      1. How do we do business then? We will be still be under eu treaties that everyone we trade will have to follow, what do we do? Do we tell them, “just ignore all of that trash”

      2. We can get sued over this because it violates the laws you agreed to follow.

      it is essentially a investors nightmare because, you never know what laws apply, when they apply, how long they apply and when they dont. If you have to follow the laws or just ignore them and you can get sued by multiple parties.

      It is uncertainty and untrustworthiness in one package

      Everyone is in the common market because its easier, you got access to more clients, you pay less to access it. It is like the person who wrote this nonsense does not have any basic idea how these things work. For example when she says “Why does the eu wants us out so fast? Dont they like getting our subscription fee?”

      How can anyone be this clueless? Investors like stable, quite places. Because they know how those countries operate, what the laws are and that there wont be any political or economical instability in the next few years. So EU wants Uk out fast to maintain the trust of investors, if its unstable and the future is uncertain then the investors leave for the next big thing, which looks like india right now, and the economy goes to the trash.

      Then again what you expect from foolish people that thinks Uk practically funds the EU when the reallity is most of that money flow all the way back to UK because Thatcher did not trust the EU, so she took precautions.

      • Penny Webster-Brown

        Have you actually read the article?

        • i will

          I was going to say the same

  • PARVUS

    An excellent article which alas doesn’t take account of the fact that if the UK legal racket and its trade union leaders, an activist Judiciary, decide otherwise, then there can always been found reason to find any BREXIT move ‘illegal’. The malleability of language in which legislation and treaties must perforce be drafted permits this if the judicial will to do so is strong enough. Parliament could put a tariff on blue hats, but if a Judge decides to redefine the word ‘blue’ or ‘hat’…
    The UK Government has found this out on numerous occasions before in the context of immigration law. They’ve been told that it’s ‘illegal’ to move forwards, backwards, right, left or up or down, or in any direction bar a status quo that the Judiciary approve of. In decisions not to be contested lest ‘the rule of law’ collapse. Or, more accurately, the highly lucrative rule of lawyers. Who are now staking a constitutional claim to be our rulers.

    • LG

      All the court did was uphold the primacy of Parliamentary sovereignty over arbitrary prerogative power. There was no sleight of hand nor re-interpretation of law. The executive have rightly been told that, to move forward with Brexit, the formal consent of Parliament is required. If Parliament doesn’t agree to trigger article 50, you can elect a new one. That’s how parliamentary democracy works. And if you don’t like that, then get yourself a mob together, overthrow the state, bring out the guillotines, etc. You know the rest.

      • Gary Humble

        Parliamentary consent was already given when they voted 6 to 1 to give us a referendum. We were told that Parliament would honour our decision, however that was before we decided to leave. Make no mistake. British democracy is on trial here. The courts decision gives parlaiment a second bite of the cherry here, not a first. Parliament gave up their right to decide on brexit when they abdicated that responsibility to the British people. This ruling is not about terms. It is about prevention. At least be honest with yourself. This is about undermining the democratic will of the people. Many MPs and in particular the Lib Dems have openly stated that they will vote against brexit under ANY conditions. They are actually quite open that they don’t particularly care how the British people voted. THAT is not my idea of democracy. It is the definition of dictatorship.

        • LG

          “We were told that Parliament would honour our decision”

          Parliament didn’t tell you that (it would have stated it in the Referendum Act), just some politicians told you that. They may well be right in the fullness of time. But you have to ask Parliament first, that’s the bit you’re missing.

          • Vabadus

            There was no sleight of hand nor re-interpretation of law.

            Yes, there was. The High Court is effectively saying that treaties on an international plane cannot be entered into or withdrawn from by royal prerogative. A cynic might conclude more pithily that we can have more Europe by royal prerogative, but not less Europe …

            Miller has overruled R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg, in which it was held that prerogative powers can only be curtailed “in express terms”.

            As far as leaving the European Union — an act on the international plane — goes, there has been no express fetter of royal prerogative.

            The judgment has been heavily criticised by some of our finest constitutional scholars in the land: Professor Mark Elliott, Professor John Finnis, Lord Norton of Louth, and others. Elliott, for one, backed Remain. He and Finnis have blogged about this continuously on the Brexit process both before and after the referendum, and I would recommend that you read their articles. Elliott also expresses frustration with the Attorney General’s submission to the court, in which he made numerous legal errors, not to mention an unclear presentation of the Government’s case.

            • independent15

              One point you wilfully omit is that integration in the EU has created a new legal system between the domestic and the international. That is one reason why even the most prejudiced of anti-Europeans in the government reject the very peculiar idea of this author.

              • Vabadus

                Irrelevant. Miller is a case on a very, very narrow question: who has the right to trigger Article 50?

                It has been settled law, reaffirmed by judgments like Rees-Mogg, that treaties on the international plane can be entered into and withdrawn from by royal prerogative.

                Even the High Court judges do not claim that this act concerns some middle ground between domestic and international law. This was not an issue at all in the case.

                I agree with Elliott, Finney, et al.

                • do it properly

                  another thing you wilfully omit is that, regardless of established precedent on royal Prerogative in the context of international treaties, said Prerogative may NOT be exercised where the citizens of the Kingdom would have their legal rights altered as a consequence. Game over. That’s exactly what the high court ruled on.

                  Furthermore, there’s now a strong possibility that legislative consent will be required from the Scottish Government, because in that country, it is established in law that the citizens of the country are sovereign, not the government and certainly not the executive. Guess what, those people voted to remain. Grinding halt coming some time around the beginning of January.

                  • Tom Collins

                    But the “citizens” of the UK have voted to leave the doomed EU and that should be sufficient to allow the Royal Prerogative to be used.

                  • John__Andrews

                    It would not necessarily be a consequence. Having invoked
                    Article 50 we might decide to forget the whole thing and the EU lets us stay. Or we might agree such a soft Brexit that UK citizens’ rights would not be altered.

                    It would be a likely consequence, but if it did happen, Parliament would have its say at that stage anyway.

                    The High Court judges claimed that changes in the legal rights of UK citizens would be an inevitable consequence of our invoking Article 50. It is not inevitable. Many scenarios could be imagined where their rights do not change.

                • Tom Collins

                  Parliament is Supreme and Sovereign. It carries out the will of the people who are truly Sovereign. There is no argument – if Parliament votes for OUT, then we are OUT.

                  • Vabadus

                    @Tom335Collins:disqus, Parliament does not mean the House of Commons. There are three ‘limbs’ of Parliament: the Commons, the Lords, and the Crown-in-Parliament. The royal prerogative flows from the last one, so if the Supreme Court overturns the High Court decision, it will affirm, rather than contradict, parliamentary sovereignty.

                    • Tom Collins

                      To all intents and purposes, the government of the day makes law. The House of Lords is really carrying our checks and balances but they CANNOT stop the government carrying out whatever they can get through the HOC. The government can use the Royal Prerogative, whenever they wish, so, Parliament (the government) is Supreme. The People give them that right.

                    • Simon

                      Not any more. Since 1972 EU law has been supreme.

                • Simon

                  It is hardly settled law. Article 50 is a very recent innovation. And Parliament handed over its primacy in 1972 and in several acts since.

            • Robin

              Yes it does seem strange how more Europe has never needed the same level of scrutiny.

          • Lillian Lowery

            The Parliament is not Sovereign – the people are Sovereign – they are our representatives we told them we wanted referendum – all agreed 6-1
            vote . The Lords have no say nor the Judiciary
            Oliver Cromwell designed it that way – THE PEOPLE ARE SOVEREIGN.J

            • LG

              A lot has happened since Cromwell, you may not have noticed but quite a lot happened around 1688/9 that might be of interest. However, since you’re clearly not familiar with UK constitutional law, you might want to do some background reading. On the concept of sovereignty, I recommend the writings of Dicey and Montesque.
              Can I also point out that the Lords, as part of Parliament, do have a say in any Act of Parliament. Also, the judiciary does have a say over what is legal. It’s referred to as ‘the rule of law’ and some people think it’s quite important.

              • Dee Crabtree

                just not the politicians that are supposed to represent us hey !

            • do it properly

              Nope, the Scottish people are the only sovereign population in the UK. In England, Parliament is sovereign.

            • Tom Collins

              Absolutely !

          • Gary Humble

            It was not just some obscure politicians, it was the PM. Making light of this decision by using the phrase ‘some politicians’ makes you look foolish. Cameron also stated that voting to leave would also mean we would be leaving the single market. His statement is there for all to see on youtube. As I have stated, I see no reason why parliament should get another say on leaving when they already voted 6 to 1 to give us a referendum and therefore pass this decision on to us. This vote is not about deciding terms. It is about stopping us from leaving altogether. You are fooling yourself if you believe differently. 650 MPs should not have the right to overrule 17.4 million people. Even if you voted to remain, you must still respect the democratic majority. If not then there may well come a time when we have another referendum on another subject and MPs will simply ignore the result. The thing at threat here is our democracy whether you voted to leave or remain.

            • LG

              Cameron is just another politician. What he said does not make what he said legal. Parliament makes law by passing Acts of Parliament. If it’s not in the Act, it carries no legal weight. So Cameron saying one thing, Farage another, no legal weight whatsoever. No one has ‘ignored’ the referendum. They’ve just put it in its proper legal context. If a Parliament doesn’t pass Brexit, take it up with Parliament. Elect a new one. But the judiciary have acted entirely correctly.

              • independent15

                Thank you, LG.

          • Tom Collins

            By 6 to 1 Parliament voted for the Referendum Act. The government stated that the outcome would be binding. Brexit won and that’s not how the blighters planned it – hence the foot–dragging. This article is superb, so let’s INFORM the doomed EU that we are leaving, give them a date and we’re OUT, as the British people wanted.

            • LG

              Parliament voted for the referendum. That makes the Act law. If you want to go to court, or if you want to know what the law is, you look at the Act. The government can ‘say’ x, y or z, about it but it doesn’t mean anything legally. If Parliament had meant the result of the referendum to be legally binding it would have specifically said so. What the government said subsequently has absolutely no legal substance. Unless you understand the primacy of Parliament, and that Parliament and government are separate entities, I don’t think you will understand the Court’s decision.

              • Penny Webster-Brown

                But there is a moral argument here, even if it doesn’t stand up in law.

        • VanceWells

          Brilliant!

      • PARVUS

        I do indeed ‘know the rest’, and historically it never ends well for either side, but it is the arrogant ‘ancient regime’ elite which goes first. Which would at least be some comfort before your ‘guillotines etc.’ inevitably arrive for the revolutionaries. The lesson, rarely learned, is that the ancient regime in its intolerable arrogance should not provoke the People too far.

        Which is all the more reason the Legal Racket – even in its own unpatriotic material self-interest – ought now to be treading with extreme caution in their ever aggrandizing claims of jurisdiction. I don’t accept that this was the transparently-obvious-to-all verdict that you claim. Hence the counter claims made in court and which will be made again on appeal.

        Had Parliament been stacked with a majority of of ardent Brexit-voting MPs this matter would never have been brought to the Court’s attention, nor would the Judiciary presume to dictate Parliamentary procedure, which is a massive constitutional right to advance.

        So ditch the cant re the Courts being roast-beef-of-olde-England defenders of Parliamentary sovereignty. They are making a statement of claim. It and they need a robust corrective.

        • LG

          Your every word sweats ignorance.

          • PARVUS

            Your boorish abuse merely concedes the argument. Learn to lose graciously, or at least courteously.
            I suspect you are a member of the Racket, or one of their fellow gravy-train travellers.

            • LG

              The Racket. Is that the amorphous conspiracy by a global network of conspiratorial elites that you and your odd friends blame for your poor, empty lives?

              • Tom Collins

                “Odd Friends”? “Poor Empty Lives”? How do you know?

                • LG

                  It’s just how I see stereotypical right-wing conspiracy theorist swivel eyed wing nuts.

        • independent15

          It’s called the rule of law. You cannot have democracy without it.

          • PARVUS

            I agree with your second sentence. Alas, contrary to the first one, what we have at present is the Rule of Lawyers. Which is the antithesis of the Rule of Law. A racket and financial feeding frenzy currently occupies and subverts the place where a Justice system should sit.

  • Miquel46

    Interesting article. Just reinforces the notion though that new ground has been broken and its tricky to know who to believe. Doubtless some eminent scholar out there could tear Ms Frankopan’s thesis to ribbons as eloquently as she, others. That said, you have to wonder why she even bothered. We’re encouraged to ignore ‘experts’ these days (The Gover), remember? Shame. One thing’s certain though – boy has that can of worms been opened.

  • Mike Paterson

    Typo Para 4: referendum was June 2016, not 2015.

    • http://moneyweek.com Ben Judge

      Thank you. Apologies

    • Diana Mackintosh

      It is starting to feel like 2015!

  • Diana Mackintosh

    Agree, just cancel the direct debit and leave, what can the EU do about it, send some one round – I think not.

    • ExasperatedMe

      They would have to file for bankruptcy

      • Diana Mackintosh

        we could give them a share of our debt if that helps, every one seems to want a piece of our action so that could have a bit of that.

  • Paul Crompton

    Paragraph 1 does not say a member state can withdraw, it states they can decide to withdraw.
    Paragraph 2 then states that a member deciding to withdraw SHALL notify the European Council

    I don’t see any court agreeing with the author on the articles interpretation.

    I don’t expect us to be able to a reasonable trade agreement with the EU in the 2 years available so the government should be assuming we exit under wto rules and spend the next 2 years negotiating 1 on 1 with other countries rather than putting all its eggs in one basket and trying to remain in the single market and custom union and almost certainly failing given the need for unanimity.

    • Chris Wilson

      But as the article said; why do we need a trade agreement?
      Just trade.

      • Paul Crompton

        You can trade without an actual trade agreement but the WTO tariffs will apply, the UK could unilaterally forego those tariffs on imports if it wished but companies based here would still have to pay them when exporting.

        • Tom Collins

          Currency fluctuations would take care of WTO tariffs, if we went down that route.

        • John__Andrews

          There is no such thing as “WTO tariffs”. The WTO gives a framework of rules for trade, among which is that you must charge everyone the same tariff unless you have a FTA with them.

          We will likely have the EU’s Common External Tariff added to our exports to the EU anyway, as they take an average of seven years to agree a FTA. We will be free to charge no tariffs at all to anyone if we want.

          What we can’t do under WTO rules is e.g. have no tariffs for the USA but impose tit-for-tat tariffs on the EU, unless we agree a FTA with the US.

    • Liem

      “… and spend the next 2 years negotiating 1 on 1 with other countries”.
      Great idea! … except you cannot do that.

      • Paul Crompton

        We can’t agree our own trade agreements whilst still in the EU but we can negotiate agreements to apply at the point we leave, even if there was something that technically stopped us from formally even talking to other countries we could do it informally or negotiate on behalf of a protectorate which could then be extended to include the UK once we leave.

        Once article 50 is triggered their is no realistic option other than to start arranging for trade agreements with others for when we leave, even if the PM decided to accept freedom of movement and for the UK to follow EU rules and court judgements in order to try and stay in the single market there would be nothing to stop say Spain vetoing that agreement over Gibralter or the European council vetoing it because we have to be punished for voting to leave. There is nothing in the agreement to say we can unilaterally revoke the article 50 notification so once triggered we can be forced out.

        • Gerhard

          ‘Trigger’ Article 50 (whether technically necessary or not) and the whole game changes.

          Okay, new trade agreements won’t be in force until the point that we cease to be a member of the EU, but we’d still be able to negotiate them.

          If Canada can get a tariff-free agreement for physical goods, then so can we. The difficulty arises from the financial trades that are so important to us.

          We live in interesting times.

        • independent15

          Actually, you can’t start to negotiate while you are still a member of the EU. Australia knows this and so does all the rest of the world.

          • Paul Crompton

            The UK can’t have it’s own trade agreements whilst inside the EU but in everything I’ve read I’ve not seen anything to suggest that talking about a potential trade agreement to only be implemented when we leave has been specifically barred by any EU treaty we have agreed to, perhaps you could help direct me to where in the treaties they ban talking to other countries.

            Even if there was however, what is to stop say Australia since you mention them specifically deciding that they might want a template trade agreement for countries with economies of between x and y gdp to use as a starting point in future negotiations to speed things up rather than starting from scratch and asking the UK as a close ally and potential future trading partner for suggestions as to what it should contain.

        • Steve L Medano

          Spain can’t veto a deal. Any exit deal needs a majority vote in European Parl followed by a qualified majority (72%) of the 27 EU state leaders.

          • Paul Crompton

            From what I’ve read there are two deals involved, one is the exit agreement covering the status of EU and UK citizens, budget liabilities, what happens to EU instituations and assets located in the UK etc which is QMV and the other is for the future/ongoing relationship covering trade which need unanimity among all members as if we were any other country wanting an agreement with the EU.

            • Steve L Medano

              no, its clearly stated that its parliamentary approval followed by a qualified (72%) majority of 27 members of the European Council. It’s not like the Canadian trade deal where some obscure part of Belgium can veto everything.

            • Steve L Medano

              no, its clearly stated that its parliamentary approval followed by a qualified (72%) majority of 27 members of the European Council. It’s not like the Canadian trade deal where some obscure part of Belgium can veto everything.

    • Angela Davys

      and outside of the customs union other wise you can not do deals with others outside of the eu . clean straight break is the only way. no need to hassle with them not going to get any where that is just to keep us paying in .

  • LG

    “Since law, medicine and even politics are all based on common sense….”

    I think that’s pushing it.

  • Markus Holler

    Would that not mean the Uk would be ignoring an international treaty is has signed? if so, yes I suppose all countries could do that, but it would have serious consequences.

    • Sean_OHare

      Quite so

    • Cynic_Rick

      Well said. Goes to show how little commonsense academia has…

      http://eureferendum.com/documents/BrexitMonograph004.pdf

      • independent15

        Oh, this writer does not represent academia in any way.

        • Cynic_Rick

          To which “writer” do you refer?

          • independent15

            The writer of the article being discussed here.

            • Cynic_Rick

              You say “…this writer does not represent academia in any way”.

              So, you infer the writer, “a professor of international law (who) holds three doctorates”, is not, amongst other representations, a product of academia.

              Definition of ACADEMIA:

              “the people, activities, and institutions that are connected with education, especially in colleges and universities”.

              I’d be interested to read an explanation of your assertion…

              • independent15

                The writer apparently has some legal background sufficient to dazzle some people who do not. You might notice if you look around, that this discussion is in an obscure right-wing financial journal, and that there is no outbreak of learned articles – still less of judicial decisions – agreeing with it.

                • Cynic_Rick

                  Oh! So, bearing in mind the topic of our conversation, am I correct in surmising you to imply the greater the legal background, in this instance, of a person, the greater the commonsense of that person?

                • Jason C

                  ‘some legal background sufficient to dazzle some people who do not’

                  interesting

                  as mentioned before – the author is ‘a professor of international law and holds three doctorates, one specifically on European law’

                  So – if this is ‘some background’ what legal experience would you consider satisfactory, enough to comment with credibility on this subject?

                  And would love to know what your legal credentials are!

                  • durka durka

                    The fact she does not understand that you cant ignore treaties prove her doctorates are as useful as toilet paper.

    • Ian Whittaker

      Countries do that all the time when a treaty no longer suits their purpose.

      Treaties are merely agreements that last as long as the parties decide to abide by them.

      • Markus Holler

        No they do not.

        • Simon

          Treaty of Laws – Vienna.

        • independent15

          Well, to be fair, Hitler did it.

      • LG

        I assume that’s how Albion got its Perfidious?

    • Simon

      No. We can withdraw from any Treaty at any time with limited exceptions which do not apply in this case.

      • Markus Holler

        Of course. That is why the government have done exactly as you suggest.

    • Trend Shark

      This is what I thought? But what do I know

  • Sean_OHare

    The option is there under article 50 (2) to negotiate further relationships with the EU. But we may not wish to do that

    The relevant sentence in Art 50(2) is:

    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

    I believe that the term “shall” in a legal document implies compulsion. How can the EU be compelled to conduct negotiations with a withdrawing member who refuses to negotiate? The implication is obviously that we are also legally obliged to do so.

    • q0paz

      negotiations negotiated under compulsion would be different from negotiations negotiated voluntarily

      • Horiboyable .

        The BREXIT I voted for was IN or OUT. No negotiations, no type of BREXIT. These politicians are mentally insane, they will end up negotiating this on the streets with their citizens. Didn’t they get the Jo Cox memo!
        I have watched Politicians let Bankers of with fraud on an industrial scale, most of them scammed on their expenses, Vaz takes advantage of young teen eastern European boys while dressed as a plumber and David Cameron likes getting pig head. They bailed out the banksters in the city because they were cry baby capitalist, privatise profits while socializing the losses.
        Look how many Ex MPs are stuffed in over at the BBC, no wonder we can’t get any straight reporting from that bunch of mono group thinkers. The BBC leading item the other week at 6AM BBC1 was if you would be able to buy “Marmite” from Tesco. The BBC take my money using state force against me and then try and shovel that shizzer down my throat. The BBC is pathetic, they should just stick to making cooking shows.

    • Ian Whittaker

      You can always decline to agree to anything.

    • Simon

      Shall is a very ambiguous word legally particularly where it has been translated as here from a foreign language. Compulsion is normally indicated by the word “must”.

      • LG

        I understand Lord Kerr drafted article 50. Did he mistranslate his own language?

        • Simon

          Well there would have been a core “original document”. It is more than likely it was translated twice. Into French then back into English. It is improbable a British lawyer would use the word “shall” in that context.

          • Steve L Medano

            the official language of EU law is English. It is then translated into the other languages.

            • Simon

              I defy you to tell me where the original version is held.

  • Sean_OHare

    There is a glaring contradiction in this article. On the one hand you state:

    “..Others have, quite rightly, considered it necessary to have recourse
    to the Vienna Convention on the Law of Treaties of 1969. But a closer
    look at Article 50 makes us realise that the Vienna Convention is not
    really relevant in this context: it only applies if there is no
    provision for withdrawal in a Treaty; and there is, precisely in Article
    50”

    In other words a recognition that the legal principle of “Lex Specialis” applies. So you acknowledge that the Lisbon Treaty was a legal document legally signed by an elected Prime Minister, yet you believe that we should simply walk away from those same legal responsibilities? Makes no sense to me.

  • David Barnes

    What Oliver Cromwell started constantly fails the British people. Her Majesty’s Government has the same urgent need to straighten the media along with much else as it is worldwide and Democracy is all about the Majority of People and not about the interpreted opinion of judges taken from perfidiously implanted legislation designed to deliberately steal Democratic Rights from the Majority of People making that very legislation contradictory to Democracy allowing a minute few to rule over the Vast Majority to themselves and in so doing is Democratically Illegal. The House of Parliament is the Peoples House and not that of the judiciary, the House of Lords the Peoples Watchdog to the Realm.

  • David Barnes

    What Oliver Cromwell started constantly fails the British people. Her Majesty’s Government has the same urgent need to straighten the media along with much else as it is worldwide and Democracy is all about the Majority of People and not about the interpreted opinion of judges taken from perfidiously implanted legislation designed to deliberately steal Democratic Rights from the Majority of People making that very legislation contradictory to Democracy allowing a minute few to rule over the Vast Majority to themselves and in so doing is Democratically Illegal. The House of Parliament is the Peoples House and not that of the judiciary, the House of Lords the Peoples Watchdog to the Realm.

    • LG

      Anyone wondering why we don’t have more referenda to give voice to ‘the people’ need only read your comments above.

  • David Barnes

    What Oliver Cromwell started constantly fails the British people. Her Majesty’s Government has the same urgent need to straighten the media along with much else as it is worldwide and Democracy is all about the Majority of People and not about the interpreted opinion of judges taken from perfidiously implanted legislation designed to deliberately steal Democratic Rights from the Majority of People making that very legislation contradictory to Democracy allowing a minute few to rule over the Vast Majority to themselves and in so doing is Democratically Illegal. The House of Parliament is the Peoples House and not that of the judiciary, the House of Lords the Peoples Watchdog to the Realm.

  • Tank Dsouls Ordialot

    “to trade you just trade” your obviously not an expert. Leaving the single market will automatically force Britain to resort to trade within the WTO (World trade organisation) at a cost of £9bn a year to British Consumer’s.
    There’s a reason the vast majority of EU country’s trade within the single market. It’s because it’s free of ALL regulatory obstacles and allows free movement of good’s and services. Which means it’s by far the best trade deal for everyone.
    You can’t just strike trade deals overnight, at a huge cost the very country’s your trading with and expect them to give you a “great deal” that benefit’s only Britain, that’s delusional.

    • katie65

      great pay the 9 billion we will have 40 billion back by not paying fees and other things. We will still be far better off than we are now
      They will not be

    • steve3005

      Where did you get this £9bn figure from? If the UK reverts to WTO rules, EU goods would be taxed on import to UK, UK goods would be taxed on import to the EU. The average duty is c 4%, a pin prick compared to the currency fluctuations.

  • MeanDroid

    The person that wrote this article has a delusional interpretation over reality…

    Ingrid, you clearly are a role model for roistonvasey or littlebritain or just that kind of person that borrows money and than refuses any acknowledgement over the fact… That is until the bailiffs knock on your door.

    Looking at your Principal’s, you clearly go shopping and than clearly walk out of the shop with the goods without acknowledging the till… Just like a rebel.

    No more member Berries for you!

  • John Wooding

    Legally this article may be valid, but it ignores the people of Sunderland, Swindon, Derby and other car manufacturing towns, farmers, the City and many others in the UK who would be hit massively by an immediate exit. The queue of lorries at Dover would stretch back past London with fresh produce rotting while the new paperwork would need filling in and the French have shown they can be very awkward if they want to be.

    • katie65

      Not if Marine le Pen gets in

      • Martin

        which she will

  • Martin

    agree with this

  • Jason C

    wowzers – that’s quite an article. Why has the incompetent government not considered this? Or did I just answer my own question…?

    • LG

      Because the article has one important flaw in it. It’s tosh.

      And the effects of ending EU membership without an agreement in place would lead to catastrophic economic chaos which would likely see many thousands of livelihoods destroyed as companies involved in EU trade go bust and jobs are lost. You know – people’s lives affected so some fat northern gurning pensioner can ‘take back control’?

      • Jason C

        I’m the 1st to admit I’m not a constitutional EU law expert. But the author is. So – curious why you think the article is tosh.

        And I presume (again – I’m nothing like an expert) that if we withdrew, as suggested in the article, WTO rules would apply, averting the economic chaos you suggest. And we may be left with WTO initially, anyway (although – I suspect not for long)

        From your tone, I’d take a wild guess that you’re a not leaver? 😉

        • independent15

          The author is not a legal expert. What she says ignores international law, UK law, and European law. That is why it has not been supported by any proper lawyers.

          • Vabadus

            She has three doctorates in law; was a professor of international law at Oxford; has written fourteen books on law in 51 years; is a barrister in England and Wales; has rights of audience in Sweden, Norway, Denmark, France, Italy, and Germany; is a published expert on the law of the last three countries, as well as EU law; has served as an advisor to numerous governments in the field of public international law, and advised Michael Gove on the legal aspects of Brexit; is fluent in English, French, German, Italian, Croatian, Swedish, Norwegian, and Danish, and has a working knowledge of Russian, Spanish, Portuguese, and Dutch, several of which she has used to deliver legal arguments as a lawyer in the courtrooms of numerous countries.

            In what sense is she not a legal expert or a “proper lawyer”?

            • Trend Shark

              In the sense she wrote this article

              • disqus_qa6j4lz5aV

                Which begs the question, why – in your view – has she so comprehensively taken leave of her accredited professional senses?

                • Trend Shark

                  Just to pre-apologise – I wrote this quick response to get a laugh rather than a detailed critique as I don’t know much about EU law. I’m not an expert and I like to listen to them.

                  Further, I can totally accept exploring other options other than what is written about in the papers etc.

                  However! This article does seem to be more ideologically driven. She does seem to be presenting ideas and answers to fit her own preference.

                  Am I totally wrong in thinking international law and adherence to treaties is much more important than written here? There are also some massive assumptionsabout what will or won’t happen after we conclude negotiations or just leave.

                  So apologies for my glib response :)

                  • disqus_qa6j4lz5aV

                    Well it isn’t a bad thing to try and get a laugh in this hard old world!

                    Your sensible reply makes clear that you – like me – are just a lay person trying to understand what is going on. And I do agree that even experts can be wrong about complex affairs like this – and frequently are!

                    Fair enough. But I don’t go along with your suggestion that the expert in this article is necessarily wrong because she is trying to push an ideological agenda that you don’t find yourself in agreement with. I happen not to agree with the High Court intervention on Article 50 – nor do a lot of legal brains – and I do find their ideological agenda to be very anti-Brexit. Personally, I find the legal case against Brexit to be straining the sense of the applicable law, while on the other hand the author of the article seems to me to adopt a practical and common-sense view of how the law should be interpreted.

                    We disagree. It is inevitable that there will be disagreements on the interpretation of the law. But as there can be no disagreement on the result of the Referendum, it is necessary to find a means of interpreting the law in such a way as will permit the Government to give effect to the will of the people, otherwise you make a nonsense of Democracy.

                    By leaving the EU, we will not suddenly abrogate EU legislation that has been adopted into British law – this will gradually be variously reformed, repealed or reaffirmed, as domestic necessity requires. Clearly, this would be an orderly process.

                    Treaties are mutually binding, and equal – but a treaty is open to dissolution when either the purposes for which it was agreed upon have been accomplished, or when it becomes clear that the same conditions no longer apply as when the treaty was first made and yet there is no mechanism for the negotiation of a different treaty on a more appropriate basis. Re-negotiation of our relationship with the EU in an orderly formal manner has been refused, because they wish to stand immovably on certain ideological principles, rather than opening up to the sort of pragmatic ‘horse trading’ which is historically Britain’s way of doing business. Clearly, remaining would increasingly disrupt Britain’s ability to do what is in our best interests.

                    As to assumptions/speculations about how a ‘Brexit’ will come about, and how it will affect us, I’m afraid there can be no hard-and-fast programme for what will be an evolving process – unlike the ideologically rigid position of the Brussels bureaucracy! But of course it is this freedom that seventeen-and-a-half million people in this country voted for, and we look forward to eventually having a new and much better relationship with the many different countries of Europe, just as we intend to have with the rest of the world.

                    In light of this decision, I must say it does seem perverse of Mrs May’s government to still be pursuing attempts to negotiate with the EU, and to be giving ear to legal opinions that want to put difficulties in the way of doing what is necessary.

                    Far more sensible, surely, for her to get the legal backing of an authoritative figure whose interpretation of the law does not put the government effectively at odds with the democratic wishes of the people, and does not involve us in endless futile bickering over the sort of issues already disposed of as being demonstrably beyond remedy except outside the EU?

                    This must be incontrovertibly so, even if you are of the party that regrets our departure from the EU. And I’m sorry, but your vexation at the outcome of the Referendum simply does not in any way disqualify de Frankopan from arguing as she does. She is no more spouting ideological rot than the High Court judges were. Her expert words would command respect in any competent Court. The case might ultimately be lost, even so, but these arguments certainly can and should be made.

                    I hope they are. I hope that they are instrumental in finally releasing us from an association that has never had our best interests at heart.

                    Because the ball is now in the court of the Leavers.

                    • Trend Shark

                      Well said! Thank you for the thoughtful and civil response – certainly has given me a lot to think about. And gives me hope there can be some reasoned dialogue on this issue

                    • Tom Collins

                      There is no need to “negotiate” with the doomed EU if we decide to Leave, which we have. We merely inform them of our intention to Leave, and Leave. We can clear up all the EU legislation, at our leisure..

                    • independent15

                      The law is not a matter of opinion where everyone is equally right. There are no “legal brains” that disagree with the High Court: even government lawyers know the case they are advocating is unfounded in law, merely a political argument from a very weak government. The Supremes will confirm.

              • Tom Collins

                Now, IF the author had been a “Remainiac”, the doom mongers would have fawned over her like a God!

            • Tucker82

              “…and advised Michael Gove on the legal aspects of Brexit”

              So how’s that going then?

          • Jason C

            “The Author is not a legal expert”. Really?

            According to the credit at the end: ‘Ingrid Detter de Frankopan is a professor of international law and holds three doctorates, one specifically on European law.’

            According to wikipedia:
            “Ingrid Detter de Lupis Frankopan (born Thyra Ingrid Hildegard Detter) is a Swedish-born lawyer, arbitrator, and academic. She was formerly a professor of international law and is a practising barrister in England and Wales… She is a distinguished and published expert in public and private international law, European Union law, the law of war, French law, German law, Italian law, and inter-state conflict resolution

            That sounds like a lot of very relevant expertise to me. Can you clarify what you mean by ‘not a legal expert’ or if I’m missing something obvious? Thanks!

      • Bill Winters

        LG your response to an earlier comment about this article was “Your every word sweats ignorance.” & now you say “…some fat northern gurning pensioner”. People who live in glass houses etc.!

        • LG

          It was an accurate comment. Did you look at Jason C’s photo???

          • Jason C

            <—Les Dawson

      • Tom Collins

        “catastrophic economic chaos”? Really? Now THAT’S a load of Tosh.

  • Rob

    The “shall” in 50.2 is probably important but I believe the EU legal people have already confirmed that any such negotiation by the Council cannot include the Member deciding to withdraw being involved in the relevant Council decisions. This is important in terms of qualified majority (deciding to extend the 2 years, if notice is given after the end of March 2017, under the Lisbon Treaty). Thus the “shall” only obliges the Council to negotiate for 2 years …or longer by unanimous consent for any “constitutional” notice (subject to Supreme Court decision in the UK on what that is) received by March, or QMV after.

    It clearly cannot oblige the other party to the negotiation – it obliges only the Council and hence not the UK to negotiate for any period about any thing related to 50.2. After notification, the UK could simply state it will be leaving by any date which it states (e.g. one when the great new US/UK trade deal starts or whatever), and leave it to the Council to seek to negotiate a withdrawal agreement should it choose to avoid the default of WTO. Boot on the right foot.

  • independent15

    An extraordinary piece. Completely wrong about UK constitutional law, EU law, and international law. Quite an achievement.

    • disqus_qa6j4lz5aV

      Can you claim to represent any form of legal consensus, when you unilaterally elevate your own interpretation of the laws in question above those of a person whose qualifications are evident? Indeed, how can we even accept that your CV is equal to contesting the matter? You seem to stand upon the ground solely of your good opinion of yourself. We must all be happy that you are content to agree with yourself. It must be so satisfying to win every argument without the need to present even the outlines of a case. In what court are your summary findings deferred to, Judge Mirror? The Bathroom?

    • Jason C

      So you keep saying… Can you please explain why your expertise and opinions should be regarded as superior to the author’s?

  • Prof Raus

    Why didn’t the government retain Ingrid Detter de Frankopan to represent them in the Miller case? Seems a no brainer to me.

  • Trend Shark

    Sure, why not just tear up any agreement we don’t like? Should make it easy to negotiate any future treaties, nuclear-arms reduction or trade deals – with our flagrant disregard for international law or staying true to our word.

    Unless we “just trade” without deals like the JCB boss would prefer. So we would default to high tariffs on our exports under WTO rules (another useless treaty?) making our goods uncompetitive? Or just sack everything off to gain full control?

    I’m struggling to make any sense of this article, it just ignores, deflects and assumes so much it’s very hard to make out if the author is being willfully ignorant or just wishes to promote her book.

  • Maureen Fisher

    Why is nobody in the Government aware of this?

  • disqus_qa6j4lz5aV

    Let’s cut to the chase: If a plebiscite won by seventeen-and-a-half million voters is to be effectively put aside and set at naught by extra-parliamentary means, then inevitably an insurgency will be afoot which could tear this country apart. Has this actually entered into the considerations of the lawyers who have presumed to set themselves above the will of the people, as already ratified in Parliament?

    Their specious claims to be protecting that Parliament from illegitimate mob rule are an insult to the existing legitimacy of Parliament. But, evidently, an activist judiciary wishes to establish another kind of Parliament: One which listens to the lawyers, before it gives ear to the common People.

    The interpretation which a large number of ordinary voters are likely to put upon this kind of legalistic interference is that they are now obliged to raise as one man a very loud extra-Parliamentary shout. Are activist law-makers, then, content to see the rise of the very mob they appear to deplore? This would expose them as having proceeded according to an agenda dictated by the ideological convictions of cultural marxism. Neverthless, however transparent this ploy might seem to those aware of such a possibility, the judiciary would then be able to pose plausibly, in the uncritical mass media, as the defenders of law and order, having effectively subverted Parliamentary democracy in order to make that specious claim.

    Faced with this kind of deviousness, Democracy might never be able to raise its head again.

    • LG

      Quite the most bizarre post on this entire thread. The courts are subverting Parliament by upholding the primacy of Parliament over prerogative power? Nice one.

  • Steve L Medano

    Cant see why the A50 triggering is in the supreme court. Parliament has approved the Lisbon treaty and Lisbon treaty is part of European Law. PM should give notice and let the European Court decide if she had authority to do so. Then lets see what happens if the EU court overrules the will of the British people. Go on Theresa, open THAT can of worms.

    • MrTrev01 .

      They’re supposed to want us to leave. Some have said that triggering A50 will tie us into their system for years- whereas just walking is a safe clean break, albeit with more early financial downsides.
      The-oh-so-caring legal heads will get rich either way, as per usual.

  • Marc

    I would simply refer readers to Article 54 of the Vienna Convention on the Law of Treaties:

    TERMINATION OF OR WITHDRAWAL FROM A TREATY
    UNDER ITS PROVISIONS OR BY CONSENT OF THE PARTIES

    The termination of a treaty or the withdrawal of a party may take place:
    (a) In conformity with the provisions of the treaty; or

    (b) At any time by consent of all the parties after consultation with the other contracting States.

    In the inverse. If there is no stipulated mechanism of withdrawal:

    Article 56. DENUNCIATION OF OR WITHDRAWAL FROM A TREATY CONTAINING
    NO PROVISION REGARDING TERMINATION, DENUNCIATION OR WITHDRAWAL

    1. A treaty which contains no provision regarding its termination and which
    does not provide for denunciation or withdrawal is not subject to denunciation or
    withdrawal unless:

    (a) It is established that the parties intended to admit the possibility of denunciation or withdrawal; or

    (b) A right of denunciation or withdrawal may be implied by the nature of the treaty.
    2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.

    As there is a stipulated mechanism for withdrawal, Article 54 VCLT would apply. Therefore, Art 50 TEU should be followed.

  • RodneyAtkinson

    The author says forget Article 50 but then says we trigger just Article 50(1) If the Vienna Convention says that is all we need to do then fine. But it sounds justiciable to me! The real crisis is the accruing rights after June 23rd for ever more EU immigrants – no discussion of that time bomb!!? freenations.net

  • Jethro Asquith

    Were you absent from last weeks year 6 spelling, punctuation and grammar lesson?

  • hadenough99

    The EU will collapse at some point in the not so distant future. The Italians are already thinking about leaving. If they do, the French will probably follow. The EU is no longer what it was. It has turned into an autocratic, money eating, dysfunctional monster. The Euro has been an utter catastrophe, especially for southern Europe. We need to get out of it before it implodes.

    • Liem

      I’ve heard “EU will collapse anytime soon” for nearly a decade now but only in UK and US. There is a difference between facts and what you wish.

      EU will not collapse anytime soon. Most countries are still very attached to it. Go and travel a bit, talk with people from different EU countries and stop reading only newspapers promoting division.

      • hadenough99

        I travel a lot and have friends in several EU countries. My Italian friends rejoiced when we voted for brexit as they would like to do the same. The Euro has been a catastrophe for Greece & Italy. The main beneficiary has been Germany who was competing with counties with weaker currencies. But now they all have a strong currecy so Germany can be competitive again.Suggest you read a book called Greekonomics which explains it all.

        • Liem

          I don’t mind reading this book, but most Greeks prefer keeping the Euro than going back to the Dragma. That’s a fact so I can stretch this by saying they also want to stay in the EU.
          Yes their economy is in trouble but mostly because of local politicians.
          Let’s stop blaming the EU for all the troubles of the world. It is far to be perfect, there is a lot of work to make it better but many countries have seen their quality of life improving after joining it.

          • hadenough99

            The local politicians are in part to blame, but that is because with the Euro, which being a strong currency commands low interest rates, they went on a spending spree like never before. Unfortunately, they accumulated more debt than they could pay it back. This happens a lot and we cannot keep bailing out countries which have the wrong currency for their type of economy. With regards to improved standards of living,the Italians are a lot worse off than when they had the Lira (so much so that many of them want it back), some Greek families have had to resort to food banks (unheard of before) and even the Spanish are struggling. Not sure which countries have had an improvement in their standard of living since the introduction of the Euro.

            • Liem

              “we cannot keep bailing out countries which have the wrong currency”. Who is we?

              • hadenough99

                The UK

                • Liem

                  To my knowledge the UK has not lost any money in the Irish and Portugal bail out and was not involved in the Greek one. On top of that, an agreement was signed with Brussels to prevent the UK from being involved in any other in the Euro zone.

                  • hadenough99

                    Not directly, but being the second highest contributor to the EU pot, we indirectly contribute to the bailouts. And how long will they let us “not contribute”?

    • MrTrev01 .

      While it takes it’s weary time to fall millions more will pile into this country- once a decent place for decent people. Getting to be a bit of a dive.

  • Michael Westcombe

    That is probably because you don’t know or understand our laws, Professor.

    http://acgrayling.com/parliament-the-nation-and-brexit

  • Vince ellis

    The royal prerogative was used by Edward Heath Prime Minister (1972) to sign accession treaty to join the European Economic Community – now know as the European Union.
    1972 – UK Prime Minister Edward Heath used the RP to sign Treaty for UK to
    join the European Economic Community (Common Market) without
    prior UK Parliament approval
    1987 – UK Prime Minister Margaret Thatcher used RP to sign the Single
    European Act without
    prior UK Parliament approval
    1992– Prime Minister John Major used the RP to sign the Maastricht
    Treaty without
    prior UK Parliament approval
    1997– Prime Minister Tony Blair used the RP to sign the Amsterdam
    Treaty without prior UK Parliament approval
    2007– Prime Minister Gordon Brown used the RP to sign the Lisbon Treaty
    without prior UK Parliament approval
    2016 – November 3rd – UK High Court decides that UK Prime Minister Theresa May cannot use the RP to enact Article 50 –withdrawal from the European Union without
    prior approval of the UK Parliament.
    Stare Decisis – legal principle of determining points in litigation
    according to precedent
    High Court decision is conjecture and an abuse of Legal Precedent and
    leads to despairing deception and/or double standards

    • MrTrev01 .

      That is what the Supreme? Court have to decide. Are we a legally running entity as a country- or a fit up for lawyers and dictators to move in at will?

  • Old Lawyer

    Clausula rebus sic stantibus

    • Cynic_Rick

      “Although it is clear that a fundamental change of circumstances might justify terminating or modifying a treaty, unilateral denunciation of a treaty is prohibited; a party does not have the right to denounce a treaty unilaterally.”

      https://en.wikipedia.org/wiki/Clausula_rebus_sic_stantibus

      • Old Lawyer

        For my birthday I was given a mug inscribed thusly: “Please do not confuse your Google search with my law degree.” The short answer is: when a sovereign nation finds a treaty no longer serves its interests, it may simply withdraw if it wishes. To be nasty about it, it “breaks” the treaty. If breaking the treaty is a causus belli, you may have a war on your hands. Otherwise, you have hard feelings and try to work things out starting with a clean slate. Voilá!

        • Cynic_Rick

          “Voila!”; if only it was that simple.

          I have a mug inscribed:
          “An ounce of common sense is worth a pound of theory”

          To quote former US Secretary of Defence Donald Rumsfeld:

          “…there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.”

          • Old Lawyer

            You are right. I am not suggesting the Brits put on blindfolds and walk away. They have to figure all the angles. Is it better to be bogged down with the French and Germans for two years of negotiating or should they enter into secret bilateral talks? Cheers!

  • Win Keys

    Lets just get out and see what happens, as they have had Audits on EU Books but not been cleared for a while. So who knows we might be in for a rebate when they get round to doing a finished Audit of the EU !! At least we wont have to pay for their expenses

  • Mansfield

    There is an awful lot about this article that makes me wonder whether it was actually written by a professor of international law: for a start, she makes the error that the four freedoms were not part of the original EEC treaty; she is unable to find official copies of the EU treaties, despite an official copy (verifiable by its electronic signature) being available on the Europa website; disregards the basic rules of construction of treaties; appears not to consider trade in services as being economically important; relies on Tim Martin(!) as an expert on trade (despite Wetherspoons having no presence outside the UK and Ireland); and appears to buy into the tinfoil hat brigade’s view of the EU.

    • hohum

      Quite. Treaty of Rome, Article 3. Clearly states the four freedoms.

      She says there is no such thing called the “Single Market”, but isnt this just semantics? The same treaty provides for a “Common Market” (Article 2. of Treaty of Rome.

      Very unrealistic to expect to be able to pick and choose the good bits from the EU, without incurring the costs and obligations but i guess we’ll find out.

  • hohum

    The Article 50 process is an opportunity to secure a good outcome with the EU.

    Pulling out immediately could be disruptive to trade, financial markets, and could risk an immediate recession and loss of good will. The UK can always threaten to pull out of the process at a later date, if negotiations do not go well.

    Seems to me “leaving at all costs now” is not pragmatic, but ideologically driven

  • VanceWells

    Is nobody in the “elite” listening to this lady? No! And what do we have right now? An utter shambles. I would suggest about time for this article to be shoved in their faces.
    We don’t need to “trigger” Art 50, we just tell them we’re gone. And then strike trade deals with the other 27 countries on same terms as before. The only fear we should have now is on the self-serving politicians. Watch their space..

  • peter martin

    Leaving immediately is the best answer. Tell the EU that the money we support them with ends on such and such date and let the trading within the euro sort itself out. Most of the trade deals will continue as before with a little tinkering here and there.
    The main thing is to end us supporting the basket case of Europe.
    Let the legal community bleat as much as they want as they are in the hands of the luvvies who are destroying the country.
    To do this we need an election to rid ourselves of May And the slippery Hammond who are at the top of the Corporate sucking pile.

  • peter martin

    Leaving immediately is the best answer. Tell the EU that the money we support them with ends on such and such date and let the trading within the euro sort itself out. Most of the trade deals will continue as before with a little tinkering here and there.
    The main thing is to end us supporting the basket case of Europe.
    Let the legal community bleat as much as they want as they are in the hands of the luvvies who are destroying the country.
    To do this we need an election to rid ourselves of May And the slippery Hammond who are at the top of the Corporate sucking pile.

  • Matthew Harper

    Nice to read an article that has some good old fashioned sense. The more options we give the EU, the more they will turn those options against us. I am all for an instant withdrawal, then, when they are trying their best to screw us over, they’ll have individual countries and hundreds of large businesses urging the EU to clarify the trading arrangements so they can continue trading with the UK. Trade is the biggest single issue, goods and services. These businesses would not and do not want disruption to their trading. If trade was to stop for some, it would be catastrophic for their finances. Everyone of us make decisions every day, shall I buy white or brown bread, shall I buy a Ford or a BMW, shall I buy French or Australian wine for dinner tonight? All over the EU, the world, for that matter, people are making these decisions day-in, day-out. This is because we have all these possibilities and options. We do not want an option removed, or its price hiked as we may have wanted that option tomorrow and now we won’t have it. UK – EU trade involves millions of little, almost insignificant decisions every day, it also involves big decisions, like car purchases and then there are large business decisions. The EU stamping its feet and getting in the way of “life”, in the way of business, will only make people more intolerant of the EU. So far, they have behaved like kids who have had their toy taken away, ranting, screaming and coming up with all manner of irrational threats. If one thing has become clear since 23rd June ’16, it is just how dreadful the EU is and that the referendum decision was without doubt, the right decision.

  • JASON MAGUIRE

    Does this person think by pulling out unilaterally that there wouldn’t be negotiations with the EU. Since immigration is one of the key issues and one of the most difficult and since it is one of the 4 cornerstones of the EUs free single market there would be no discussion on this with the EU. In other words all those people living in the UK from other states in the EU would now be outside of any treaty and they would all be living in the UK without visas in complete limbo. Where did you get your education?

    As if the EU are just going to turn around and say, “ok, we understand, let’s just carry on as if nothing happened and get on with business as usual”. What a ridiculously naive outlook. This is typical of those Brito-centric perspectives that see everything working out in Britain’s favour in the end. This is typical jingoistic crap camouflaged as, “let’s educate the public on what The Treaty really says”. And so it seems that Britiain could leave on a unilateral basis but you would have to be stark raving mad to think this is any option whatsoever.

    This article is typical of those people I refer to as educated but not clever. Just go ahead and withdraw unilaterally and see what happens. Britain’s economy is literally on the brink of collapse, not because of Brexit but because it is bankrupt basically. Instead of working together with its european partners on a solution for the impending world economic downturn it decides to follow the “will of the people”, all 37% of them or 1/16 more than those who wanted to stay in.

    Pulling this trick would mean a fast ticket to WTO regulations and tariffs being slapped on left right and centre. Just what Britian needs to crash its economy faster than it is going to anyway.

    Bonkers.

  • William Perry

    This is just wishful thinking from a rabid quitter, the usual hate filled rubbish one occasionally comes across when straying into the murky world of The Daily express. It’s not balanced or thoughtful and that’s what this country desperately needs. Long live the EU. Long live Freedom of Movement – our most cherished of freedoms.

  • Alan Bell

    so article 2 of the EFTA convention won’t say that objective C is “to progressively liberalise the free movement of persons;” then. Oh, it does. http://www.efta.int/sites/default/files/documents/legal-texts/efta-convention/Vaduz%20Convention%20Agreement.pdf

  • ColinConnaughton

    I agree with the main thrust of this article. I disagree with the assertion that UK does not have a written constitution.
    https://www.britishconstitutiongroup.com/british-constitution
    I think that we should leave EU immediately and unilaterally.
    Such a method is outlined in ‘The Road to Freedom’ by Gerard Batten
    https://www.amazon.co.uk/gp/product/B00NF2UXCK/ref=oh_aui_d_detailpage_o00_?ie=UTF8&psc=1

  • gbearman

    The Remainiac Traitors are trying hard to both delay & stay in the Single Market, I agree we should leave our traditional enemies immediately, however as a result of the Supreme Court Case, would Brexit departure have to be put before Parliament again ?

  • Marcus Lasance

    Seems pretty obvious that as UK signed Lisbon treaty, it signed for article 50 in its entirety not just para 1