05/05/2016
When in February of this year, the Government published a
Command Paper entitled, "The process for withdrawing from the European Union", it asserted that Article 50 of the TEU "was the only lawful route available to withdraw from the EU".
There can be hardly anyone with any sense or understanding of treaty or international law who would challenge this, but that did not stop Dominic Cummings, campaign director for Vote Leave, doing
precisely that. This was then reinforced on the
Vote Leave website, where the use of Article 50 was regarded as optional, with different legal mechanisms being available.
This was subsequently repeated by
Bernard Jenkin,
Michael Gove, Nigel Lawson and Alexander (aka Boris) Johnson, putting almost the entire Vote Leave élite at odds with reality.
This, however, was not good enough for the House of Lords EU Select Committee, chaired by Lord Boswell. Determined to have "as clear an understanding as possible of the process whereby the UK would withdraw from the EU", they decide to hold a public evidence session with two experts in the field of EU law.
The chosen ones in this case were Sir David Edward KCMG, QC, PC, FRSE, a former Judge of the Court of Justice of the European Union and Professor Emeritus at the School of Law, University of Edinburgh; and Professor Derrick Wyatt QC, Emeritus Professor of Law, Oxford University, and also of Brick Court Chambers.
Previewed in the
Booker column, the essence of their conclusions was that: "If a Member State decides to withdraw from the EU, the process described in Article 50 is the only way of doing so consistent with EU and international law".
The slightly different phrasing here does not in any way obscure what amounts to a complete endorsement of the Government's assertion. And this, by rights, should put the issue to bed â except that Vote Leave doesn't let minor things like being wrong disturb it. Its website remains (at the time of writing) unchanged, as does its declared view that Article 50 is optional. Vote Leave doesn't do corrections.
Strangely, though, despite Lord Boswell telling us that he was so keen to sort out Article 50, he chose to head up his
press statement with an entirely different, if related issue. If the UK votes to leave the EU, we are informed, "negotiating withdrawal would be a 'complex and daunting task'".
In many respects, this is out of order. Boswell has called in legal experts to give him the word on EU law, but is straying into the political domain â stretching expertise into opinion-led evidence.
Thus, while his witnesses are entitled to their opinions, they have to be qualified. The extent to which the negotiations may be "complex and daunting" will depend to a very great extent on the exit option chosen by HMG.
Enter the
Telegraph which falls for the Boswell spin but then quotes Roland Smith (aka White Wednesday) who points out that the EEA option would avoid most if not all the problems to which the experts refer.
Needless to say, all those legacy media organs which do publicise the Select Committee report seem to have ignored the Article 50 issue altogether, even though this was the primary reason for the report.
Thus they all miss the point which is so crucial to understanding the entire referendum debate â that we are limited in the first instance to a two-year negotiating period, in which the Government would seek to finalise an exit settlement.
Wyatt, the academic lawyer - demonstrating a degree of political naivety - thought an extension would "probably happen", not perhaps realising that there would be a price. Relying on the unanimous agreement of the other 27 Member States, our position would be so weak that we could hardly resist what would most certainly be unacceptable trade-offs.
The more savvy Edward counselled against relying on the two-year time limit being extended, which would probably reflect the real-life position, giving us the two years for a make-or-break agreement.
This puts us precisely in the area that Vote Leave is trying to avoid â having to confront the impossibility of reaching a bespoke "free trade" agreement within that time period.
This is, of course, why the Article 50 issue had to be resolved. Sadly, with the media â including
the BBC - having swallowed the Boswell bait, the job is only half done.
