Welcome to European Tribune. It's gone a bit quiet around here these days, but it's still going.
Thanks for this. I was aware of the general history, but have tended to discount its importance. Very few legal texts have only one author and most have to go through complex approval processes with possible minor tweaks along the way. Certainly the people with ultimate responsibility for approving a text may read it quite differently from the way the original author intended - even in cases where there was only one identifiable individual author.

I could claim ownership of all manner of policy documents for Diageo. In reality I "borrowed" a lot of ideas from elsewhere and any documents I produced had to go through lengthy many layered approval processes which might have tweaked them at some stage or meant something different to different people within the approval process. So even Lord Kerr may not be the initial author - he may merely have approved a text original written by some junior lawyer in the secretariat. Quite often you genuinely forget where you got your ideas from.

At the time Lord Kerr was head of the Convention secretariat that was trying to draw up a a formal EU Constitution - which was later rejected by referenda in France and Holland. Parts of that Treaty were later incorporated into the Lisbon Treaty - again a different context and time. Lord Kerr was anxious to provide a formal mechanism to disadvantage some dictator wanting to leave the EU in a huff - never imagining it would be the UK which was the first to invoke it.

All of which is a long way of saying that a text dreamed up in one circumstance with one set to intentions may end up serving a very different purpose  in another. The ECJ has the task of interpreting it in the current context, but must also be wary of producing an unwanted precedent for the future. Laws are generally framed to provide the institutions operating within their framework some discretion and freedom of interpretation.

It seems to me the very short, sparse, and clear style of A.50 provides the EU Council with considerable discretion. I doubt the ECJ will want to interfere with that. The EU tends to operate by consensus which gives individual members some scope to block initiatives, but much less to initiate actions against the wishes of others.

The more I read Lawyers prognosticating on this issue, the more I realise that lawyers are not politicians and have little ability to imagine the political ramifications of some of their ruminations. It would be crazy to allow an unregulated unilateral right to withdraw an A.50 notification after all the disruption and additional costs it has occasioned, not to mention the consequences of numerous members invoking and revoking A. 50  notifications for tactical purposes during other negotiations and disputes.

If the ECJ were to announce that an A.50 invocation is unilaterally revocable, I would be all in favour of the EC council deciding not to pay any heed to A. 50 invocations until they become irrevocable after 2 years. Let members who wish to leave just leave, and negotiate with them as third parties afterwards. The EU is actually doing them a huge favour by offering to negotiate interim and transitional arrangements to minimise disruption while negotiations are ongoing.

Not that the EU can expect to get any thanks for it.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 12:18:36 PM EST
[ Parent ]
Looking at the economic costs the UK has already endured makes me think it's not only the lawyers who aren't good at politics.
by Colman (colman at eurotrib.com) on Thu Nov 29th, 2018 at 12:22:51 PM EST
[ Parent ]
My understanding is that there was no Grand Legal Masterplan for the wording. It was a bit of an afterthought and dependent on some very specific circumstances, which are now historical.

So there is no detailed legal implication buried in the wording, because it was never considered likely enough to need more specific detail.

This does of course leave it open to interpretation by the ECJ. But - as I've suggested before - ultimately it's a political issue, not a procedural one.

If the political will is there, A50 will be revoked somehow. If it isn't, all kinds of challenges and obstacles will make it seem like an impossibility. Most likely there will be some toing and froing and the EU will demand a price - possibly a token one, possibly not - before agreeing.

But it's also worth pointing out that there are now multiple challenges to the legality of the referendum result, and if they succeed the basis for A50 - that it's invoked in accordance with a country's constitutional requirements - will no longer apply.

Leave are trying to argue that parliament's vote to invoke A50 supersedes and legitimises the result, even if it was illegitimate and possibly even criminal.

I think that would be unlikely to stand up to a challenge. In any case, at the moment it looks as if May will lose her vote, and her current "charm offensive" around the UK (oh my aching sides...) is actually some one-sided campaigning in preparation for a GE.

If so - good luck with that plan.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Thu Nov 29th, 2018 at 12:42:29 PM EST
[ Parent ]
Leave are trying to argue that parliament's vote to invoke A50 supersedes and legitimises the result, even if it was illegitimate and possibly even criminal.

I would actually agree with that argument. The referendum was purely advisory, and if it was illegitimately influenced, the worst you could argue is that Parliament got some bad advice before deciding to proceed. Parliament and the government are free to change their minds and have had many opportunities to do so - despite all the evidence of illegality in the run up to the referendum. This government now "owns" this Brexit deal, and I suggest only a new government or a referendum to change this government's mind can change that state of affairs.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 12:59:47 PM EST
[ Parent ]
It was sold to Parliament as "purely advisory."

It was sold to voters with the promise that Parliament would implement the decision - even though there was no specific plan, and no details of what "Leave" actually meant, and no constitutional basis for that promise.

It's not true that Parliament has had multiple opportunities to change its mind. The A50 vote was unique, and it was only after a referral to the judiciary that the "meaningful vote" amendment was even allowed a debate.

Throughout, May has acted despotically, using lies, inflammatory rhetoric, and bullying to force through policy, to shut down open debate, and to try to minimise the influence of suggested amendments.

At this point she's actively defying a Parliamentary vote to require her to reveal the full details of the legal advice she has received.

This has not been business as usual, nor has there been more than a pretence of allowing Parliament independent oversight of the process.

It's not so much that the government needs to change its mind, as May's entire regime needs to be cleaned out. She's clearly not successfully representing anyone except her own delusions - and possibly the business interests of her husband's employer, and of the semi-criminal regimes, like Russia, Israel, the Saudis, the fascist right in Europe, and the neocons in the US, that she likes to associate with.

It's tempting from the EU POV to use Brexit to teach the UK a lesson. But that's not a very nuanced view. The neocon/neoliberal/neofascist problem is world-wide, and killing this outbreak in the UK would do a lot to stop its spread elsewhere.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Thu Nov 29th, 2018 at 01:24:37 PM EST
[ Parent ]
Many thanks for this exchange of views, which I find fascinating even if I slightly disagree with you. The problem with not having a written Constitution is that it all depends, a bit, on the author's viewpoint. For all its claims of ancient tradition, the UK "constitution" is very crude and basic at best.

In reality the UK is a Parliamentary democracy where Parliament is effectively Sovereign. Referenda have only been used, rarely and relatively recently, to decide on EU membership issues and some electoral system and "regional" devolution issues, where Parliament found the issue too difficult or too regional to resolve.

While the formal position was always that EU related referenda were advisory, it would be a brave parliamentarian/party which would go "against the voice of the people". Nevertheless it was always a political rather than a legally binding decision to accept the result.

Personally I think referenda are generally a good thing and fill a massive void in a simplistic and crude first past the post single seat constituency system where there is little point in voting in most constituencies which are deemed "safe" for any party.

I suspect the high turn out in the last referendum was a huge sigh of relief that your vote in many "safe" constituencies actually mattered and would actually count towards the final result. Much of the vote was actually a protest vote against the system, austerity, and the Government, but c'est la Vie. Democracy doesn't always work in the way intended.

We in Ireland can act all smug in that we have had many referenda and know how they should actually work: They are for inserting very specific provisions in a written constitution with very specific effects so there is the least possible uncertainty as to what the real issue is all about.  A referendum on May's (or any other deal) would have the merit of being quite specific and unambiguous in its effects.

Obviously a government with a working majority can do a lot to impose its will on Parliament, on the order of business and what issues are put to a vote and which are not. The Fixed Term Act actually makes it very difficult to force a Prime Minister out mid-term - unless disowned by her own party. The DUP have said they will support te Conservatives on confidence issues even though they will render it paralysed on much else.

So we could be left with a lame duck Prime Minister leading a lame duck government drifting helplessly onto the "no-deal" rocks. The only alternative is for May to do a deal with Corbyn on a general election or a second referendum. To his credit, Corbyn has been quite clear: he wants a general election. The question is whether even a third of the Conservatives would be prepared to follow May down that route at the present time, as the Fixed Term Act requires a two thirds majority of Parliament to pass.

I suspect she could get that number - many are in safe seats - but they could be risking condemning the Conservative Party to Opposition for a generation, and even its displacement by the Lib Dems in the duopoly of power in Westminster. Perhaps the Remainers and Leavers in the Conservative Party hate each other enough to risk that outcome.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 03:01:51 PM EST
[ Parent ]
It's tempting from the EU POV to use Brexit to teach the UK a lesson.

Actually, no: very few people in the EU go along that line; and even less among EU governments and institutions, who recognized from day one that this would be bad for both sides and that Brexit agreements would be at best "damage control" (reiterated recently by D.Tusk).

This "lesson" (or "punish") thing is actually a frequent Brexiteer's theme, if only to rile up the base once it becomes clear that the EU is not letting them having their cake and eating it.

by Bernard on Thu Nov 29th, 2018 at 07:30:50 PM EST
[ Parent ]


Occasional Series