How to leave the EU without invoking Article 50

 

It is generally assumed that the first step for the UK to leave the EU is to invoke Article 50 of the Lisbon Treaty. In his article on 10th August, Paul Walter described how “Invoking Article 50 could be a disaster for the UK”. The referendum represented a democratic decision of UK voters that needs to be respected, but invoking Article 50 might not be the only way to do this.

Article 52 of the Lisbon Treaty states “The territorial scope of the Treaties is specified in Article 355 of the Treaty on the Functioning of the European Union.” Article 355 of the Treaty on the Functioning of the European Union states that the treaties “apply to the European territories for whose external relations a Member State is responsible”. However, it contains exceptions and special provisions for numerous territories of UK, Denmark, Finland, France and the Netherlands.

The European Communities Act of 1972 is “An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar”.  Therefore, Gibraltar is distinct from the United Kingdom, in relation to its membership of the EU.

The referendum on June 23rd asked the question “Should the United Kingdom remain a member of the European Union or leave the European Union?” The voters of the UK voted by a relatively small margin to leave the EU (by 51.9%), but the voters of Gibraltar voted overwhelmingly to remain (by 96%). According to the definition of the UK in the European Communities Act, the referendum did not address the status of Gibraltar. The UK Parliament should therefore seek to implement the democratic will of the people of Gibraltar, as well as the UK.

Would it therefore be possible to negotiate a change to Article 355 of the Treaty on the Functioning of the European Union, so the treaties cease to apply to England, Scotland, Wales and Northern Ireland, but continue to apply to Gibraltar? This would have some further benefits:

  • There would be no fixed two year deadline to conclude negotiations
  • It might be easier to agree special provisions for Northern Ireland (and potentially Scotland)
  • If the UK decides to return to the EU at some future date, it would not have to apply to be a member, and would therefore not have to adopt the Euro or join the Schengen area.

Do you think that the Autumn Conference should adopt this approach as Lib Dem policy for Brexit negotiations? If you are aware of any legal or constitutional reason why it would not be possible, please post a comment.

 

 

* Simon Pike is Data Officer of Newbury and West Berkshire local party and a member of South Central Region executive.

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12 Comments

  • Mark Goodrich 19th Aug '16 - 3:17pm

    Why stop at Gibralter? Why not include Scotland in this as well since they have a clearly settled view that they want to stay in?

    People will immediately object that Scotland is different as an integral part of the UK but – in that regard – I give you the example of Denmark and Greenland. Both part of the Danish Realm but with Denmark inside the EU and Greenland outside.

    In short, this would be a method of implementing the “Reverse Greenland” option which is certainly possible from a theoretical point of view. Tories tend to dismiss it as “fanciful” but haven’t been able to explain exactly what the problem is…. In fact, it does solve a few problems for them – such as giving them a plausible excuse for not triggering Article 50.

  • David Woodbridge 19th Aug '16 - 3:21pm

    “If you are aware of any legal or constitutional reason why it would not be possible, please post a comment.”

    I can think of 27 political ones…

  • John Peters 19th Aug '16 - 3:28pm

    Hasn’t Nicola Sturgeon broached the reverse exit already. I’m sure she dreamed of leading Scotland, Northern Ireland, and Gibraltar off to a glorious future within the EU. Didn’t Northern Ireland tell her to shut it and keep out of matters outside her competence.

    Anyhow the last time she tweeted the possibility the response was not as hoped for.

  • Phil Beesley 19th Aug '16 - 3:33pm

    Lawyers love to talk about legal clauses and definitions. Diplomats — and all politicians are diplomats — prefer to talk about principles.

    The referendum result means that the UK government has to enter serious negotiations with our friends and neighbours about leaving the EU. Lawyers may argue that no discussion occurs before the UK declares intent to leave; political reality and lawyers differ. Are we supposed to believe that UK politicians and civil servants aren’t talking about Brexit or non-Brexit with EU folk?

    It’s principles that matter. In the real world, laws are subsidiary to principles. According to the UK Official Secrets Act 1911, public interest is not a defence; however juries have declared not guilty for defendants who admitted disclosure.

    If we’re going to argue how and why the UK remains in the EU, it has to be about principles.

  • Leave The EU 19th Aug '16 - 4:14pm

    “EU puts itself at the top of Rio Olympics medal table ” – http://www.telegraph.co.uk/olympics/2016/08/18/eu-puts-itself-at-the-top-of-rio-olympics-medal-table/ 🙂

  • paul barker 19th Aug '16 - 4:24pm

    I am unsure why this is being suggested on LDV. If the intention is simply to mess with Blukip heads, this isnt the best place to reach them.
    If its a serious suggestion for us then NO is the answer. I am fighting to keep The UK in The EU.

  • Tony Dawson 19th Aug '16 - 4:24pm

    To ‘respect’ a decision does not mean that you have to conform with what one particular group of people say that it means, regardless of the consequences.

  • Peter Bancroft 19th Aug '16 - 5:04pm

    The EU and its member states wants and expects the UK to follow article 50. There is going to be no renegotiating a different approach – it will be treated with the same contempt as Cameron’s attempt to “veto” Juncker.

  • Stevan Rose 19th Aug '16 - 7:57pm

    I wouldn’t expect DUP supporters to have much truck with Ms Sturgeon but the majority of NI voted Remain. They have a neater and always available option of a united Ireland though. I quite like the idea and the EU and it’s other member states can want and expect what they like but they’re not in control of this process. We’ll issue the Art.50 notification only when we’re ready and in the meantime nothing is off the table

    “I am fighting to keep The UK in The EU.”

    Good luck with that one. Had the Remain predictions come true there might have been a chance. But there was no emergency punishment budget, the stock market is up, the currency has only slipped back to where it was in 2013, unemployment is down since the vote. I’ve not noticed a big surge in regret, the government are now Brexit not Remain committed, and despite local successes our poll rating is still around 8% nationally (meaning England and Wales now).

    There’s a YouGov poll with interesting results although their data doesn’t support their headline. What is important is that 69% now say Brexit means Brexit. Only 22% want to fight the result. But only 10% want an extreme Brexit of a Gove nature. It’s difficult to make sense of the options but seems clear that a Norway solution would be acceptable (though not enthusiastically acceptable) to more than 50%. As a party we should be focusing on the needs of the 69% since 22% is an overwhelmingly losing margin.

  • Many thanks for your comments on my article on how to leave the EU. On the one hand, Paul wants to campaign to keep the UK in the EU, and on the other hand David can see numerous political reasons why my suggestion would not ‘fly’.

    I have a lot of sympathy with David. However, the Lib Dem manifesto included support for a referendum on EU membership. While the circumstances envisaged for the referendum were different, and the result is the opposite to was hoped for, the Lib Dems cannot now refuse to accept the outcome of the referendum on June 23rd. I am very doubtful that any campaigning for UK to remain in the EU will succeed, but it might influence the evental outcome.

    I also agree with David that my proposal presents many political challenges. However, we Lib Dems are used to political challenges, and the only way to avoid them is to agree with the Tories. However, he Brexiteers have ben vocal in claiming that a 51.9% majority represents a “clear majority” that must be respected, so surely they must respect even more a majority of 96% (or have I missed something about their sincerity?).

    I therefore believe that the Lib Dems need to support the UK leaving the EU (at least for the time being), but we need to support an option that causes least harm to the UK and the other 27 EU members in the process – I suspect that many EU members are begining to realise the implications to them of the UK invoking Article 50.

    Like Stefan, I could accept the Norwegian option, if it could be achieved – but I fear that it cannot. Norway is a member of the European Economic Area, and therefore of the single market. One of the fundamental tenets of the single market is free movement of people. Switzerland has a looser association with the EU; in 2014, Switzerland held a referendum in which its people voted to restrict free movement by imposing quotas (a referendum which, unlike June 23rd, was binding). This is what the Commission said in response, in a statement to the European Parliament: ‘This core principle of the free movement of persons is a cornerstone of our relationship. It is a fundamental right. It is not simply “negotiable”, as some tend to believe. … A package is a package! One can’t have the cake and eat it.’

    Therefore, my suggestion might represent a good way forward for Lib Dem policy – respecting the outcome of the referendum, but finding the ‘least worst’ way to implement it.

  • Stevan Rose 21st Aug '16 - 1:27pm

    “One of the fundamental tenets of the single market is free movement of people”

    And that YouGov poll reveals over 50% are either OK with free movement or think it’s a price worth paying. But you can fudge with quotas and the definition of single market for appearances. Or have an opt out / veto over free movement in the event of expansion (as we would have inside the EU). That would push the OKs beyond the marginal majority.

  • I think you forgot about Mariano Rajoy who would block any deal with Gib other than joint sovereignty; which btw Gibraltarians may have to reconsider if the EU is as important to them as they believe.

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