Every school kid now knows that if the British government wants to fulfil the will of the British people expressed last June they have “to trigger” or, “to invoke” Article 50 of the Treaty of Lisbon (2007). Prime Minister May has stated that she intends to do this before the end of March 2017. Sadly, once again, the kids (and we investors) have been mis-taught: that is precisely what she should NOT do. It would lead us even deeper into the beyond-baffling Brexit Labyrinth. Article 50 is a devilish European trap. But, don’t despair, there IS a solution…
Did somebody say “Article 50”?
Back in the summer of 2005 the people of France gave a resounding Non in their referendum on the so-called European Constitution. Even though it had been crafted by the po-faced French political elite led by ex-President Giscard d’Estaing and a gang of senile Euromaniacs. A week or so later the great, sensible people of the Netherlands stuck their own two fingers up in the same direction. The EU elite dropped the project.
But within months they had drawn up a draft new treaty – which would effectively re-launch the European constitutional project by the back door. It was a treaty which would formalise the institutional arrangements of the European Union and the legal relationship between the EU and its member states. This was finally to become, in December 2007, the Treaty of Lisbon.
Before we go any further, just note one thing. In the history of the European Union, the controlling elite ALWAYS get what they want – which is MORE Europe. They cannot resist pulling inexorably towards some kind of federal super-state: it’s in their DNA. Note how they are currently using Brexit as an excuse to fast-track the European Army.
Prime Minister Blair included a pledge to have a referendum on the European Constitution in Labour’s manifesto for the May 2005 general election. When the European Constitution morphed into the Lisbon Treaty that commitment was quietly dropped. Taciturn Gordon Brown, who succeeded Blair as PM in the summer of 2007, made diplomatic history when he signed the Lisbon Treaty. He arrived late, while all the heads of government were having lunch, signed the documents, and then flew home with no speech.
I wonder if Mr Brown even read the wretched document. (Kenneth Clark MP, who was a cabinet minister throughout the Major Government, famously owned up to never having read the Maastricht Treaty). If so, he might have realised that Article 50 was designed never to be used. We know this now because the mandarin who drafted it, Giuliano Amato, a former Italian PM and European Commissioner, has recently revealed this. He says it was only inserted at all to placate the British who were ambivalent about the Treaty[i].
In the history of the European Union, the controlling elite ALWAYS get what they want – which is MORE Europe.
All the talk in the mainstream media about Article 50 being a “mechanism” to facilitate a country’s departure from the EU is misleading. Article 50 just states that any country wishing to leave the EU must submit a formal notification to the European Council, and that once that is received, it is “irrevocable”. And it’s not clear whether the formal notification takes the form of an email fired off from Boris’ office, or of a velum scroll bearing the seal of Her Majesty delivered by one of those liveried flunkies in frilly shirt and tricorn hat while ringing a bell.
What the Commission does when it receives the formal notification and how long it takes to respond are simply matters of speculation, though Article 50 mentions a timescale of two years. It is quite probable that the EU may choose not to respond – just as they have failed to engage Switzerland in negotiations since the Swiss voted to restrict EU immigration two years ago. The computer says no.
Post-truth: Article 50 is a trope…
Beware of post-truth! Or so we are told by Lefties – mind you, post-truth normally turns out to be interpretations of facts that they dislike. Article 50 is not a “mechanism”; it is a trope – a literary construction that facilitates the discussion of a contingency which might never be permitted. It is more of a theological concept than a legal one. And since concepts like Freedom of Movement are also theological concepts which may not be challenged by true-believers in the European Ideal, virtually nothing is actually negotiable at all.
Even if the EU were prepared to negotiate in good faith, it would have no incentive to conclude negotiations speedily and would need to secure the agreement of 27 member states to ratify any final deal. In the intervening period, EU immigration is likely to rise as economic migrants from the burnt-out Eurozone periphery head here before the door closes; and net contributions by Britain to the EU budget are set to soar.
EU immigration is likely to rise… and net contributions by Britain to the EU budget are set to soar.
What’s more, if Jim Mellon and others are right and the Eurozone financial system is about to collapse, our European counterparts are likely to have other things on their minds apart from Brexit. They may even require Britain, as a continuing EU member, to contribute to the various stability mechanisms that I wrote about last May.
One more killer fact: if you want to read the Lisbon Treaty, you can’t; you can only read a text provided by the UK government website[ii] which carries the following disclaimer: the texts are illustrative and do not have legal force. Reference should be made to Command Paper 7294 for the text of the Lisbon Treaty itself. Command Paper 7294, needless to say, is not available.
If Mrs May has any hope of escaping from this dark labyrinth, she, and the brigade of Sir Humphries around her who got us into this pretty pickle, need to stop thinking like theologically-minded Europeans, and more like pragmatic Anglo-Saxons.
Parliament must be allowed to adjudicate? Maybe
This is a good moment for British people to get real about their constitutional history. A lot has been said about the right of Parliament to decide whether Article 50 may be “invoked” at all. (You’ll understand from my previous argument that this would be a mope about a trope.) But if Parliament feels compelled to discuss it – fine. If they vote not to invoke Article 50 – that’s also fine: because the signing and renunciation of treaties is undoubtedly a royal prerogative of the Crown, and thus today of the Prime Minister. All the honourable members can do is shout and pout.
I’m not going to go all Jacob Rees-Mogg on my busy, practical readers. But Ms Gina Robinson, the Supreme Court, the Scottish Government, the Welsh and Northern Irish Assemblies, the House of Bishops of the Anglican Synod, the Council of British Druids, the Grand Order of the Garter, and the Fraternity of Bearded Billionaire Tax Dodgers – they can all can huff and puff as much as thy like. And they still can’t invoke or dis-invoke Article 50 – because it doesn’t bloody matter!
Historically, Parliament was convened by successive monarchs to approve and legitimise the taxation of the people. These days, they do everything but.
A Parliament of Fowls[iii]
If the UK EU referendum had been a general election, political scientists tell us that it would have returned nearly 450 pro-Brexit MPs and about 200 Remainers. Unfortunately for us, the instinct of the presently constituted House of Commons (elected May 2015) is precisely the opposite. About 450 MPs have Remain tendencies. Some of those Remainers are wise and flexible enough to realise that Brexit is now inevitable and will not stand in its way. But there are a large number of recidivist Remainers – people like David Lammy MP – who believe that the British people are a bunch of naughty children who need a slap.
The paradox of sovereignty
Brexiteers feel as they do because they take the ancient constitutional doctrine of the Sovereignty of Parliament seriously. On the other hand, we have a House of Commons, the majority of whose members do not want parliament to be sovereign. Therefore, it is for those who believe in the sovereignty of parliament to disregard the House of Commons (until such time as we get a new one). Parliamentary democracy is definitely a good thing. But, as chocoholics know, you can have too much of a good thing.
And apparently, even after Article 50, they can block Brexit
Some German parliamentarians have said that Brexit may not be possible. The PM of Malta recently warned that he might not allow a British withdrawal from the European Union. So going into negotiations with the EU to negotiate withdrawal is more akin to a political prisoner entering into negotiations with his prison governor to be freed. Expect to spend a long a time in your cell waiting for an answer.
A Transitional Arrangement?
You couldn’t make it up. The establishment media have come up with a new spanner to hurl into the works. There is talk of a transitional arrangement – a half-way house between IN and OUT in which life could largely continue as it was before 23 June. Apparently, Mrs May is seriously considering this option. But as Peter Lilly MP has argued, this would fundamentally weaken our negotiating hand as it would imply a presumption of continuity for the status quo.
So, what can we do?
As the eminent jurist, Professor Ingrid Detter Frankopan, has argued[iv], “to trigger” Article 50 would be to appoint the EU itself as the arbiter of the conditions of Britain’s withdrawal. Mrs May has already set out her plans to repeal the European Communities Act, 1972 and to push a Great Repeal Bill through the House of Commons during the lifetime of the current parliament. That’s good. In addition, she should announce by royal proclamation as soon as possible that the UK is no longer a member of the European Union, that all European citizens coming to the UK require work permits (which will be granted automatically for anyone earning over, say, £50,000), and that all EU legislation (e.g. the Working Time Directive etc.) will remain UK law until such time as parliament votes to amend it.
This is not without risks. The Europeans may go into a funk and impose tariffs on British exports – in which case we shall reciprocate. Sooner or later, however, they will come round to the view that, if Turkey and Ukraine can trade tariff-free with the EU while being outside the Single Market, why not Britain? In the end, they will do what is in their best interest.
Sun Tzu and The Art of War
Sun Tzu, author of the 6th Century BC Chinese masterpiece on military strategy (as every hedge fund manager I have ever met knows) wrote some memorable words. The supreme art of war is to subdue the enemy without fighting. The best generals occupy defensible ground and create an impression of impregnability: the enemy accepts their gains as an accomplished fact – and then retreats. The real art of war is not to fight at all. Very Zen, I know, but still true.
Sometimes, the real art of negotiation is not to negotiate!
I mean, would you really want to sit down across a table opposite the scowling faces of Michel Barnier, Guy Verhofstadt, Frederica Mogherini and the rest? The idea is just too disturbing – and it would be a complete waste of time. Sometimes, the real art of negotiation is not to negotiate!
The Tao of Boris? Maybe not. But, dear Prime Minster: don’t engage your enemy until you (and we) have already won.
Alexander II of Macedon and the Gordian knot
Alexander (the Great) solved a problem that had defeated many noble forebears, thus. The task was to disengage two ropes tied together in a knot of such elaborate complexity that they could never be untied. Young Alexander contemplated the knot for a moment. Then, he produced his dagger and cut the two ropes apart. He was hailed as the saviour of the world. These days, we would call him a lateral thinker.
What about the markets?
The markets will ultimately relish an end to the prospect of enduring uncertainty, although there will be short-term turbulence. Yes, there will be much wailing and gnashing of teeth coming from European capitals. The Corbynistas will have kittens; Ms Sturgeon will call down plague and pestilence; Evan Davies and James O’Brien will go into convulsions on Newsnight. And there is a good chance that the Europeans will try “to punish” Britain, if only as a warning to other potential mutineers. But the last thing that Europe needs right now is a trade war. More probably, they will try to stymie the City of London – though, as I have argued before – that will not be as easy as they think.
Sensible investors will just keep calm, and carry on.
But, as JCB’s Lord Bamford has said, good businesses like his will continue to sell overseas come what may. After much sound and fury the dust will settle and the future for Britain outside Europe will look bright, with a swift trade deal with the CANZUK countries likely. Sensible investors will just keep calm, and carry on.
[ii] See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228848/7310.pdf The disclaimer is on Page 7.
[iii] I refer to the poem by Geoffrey Chaucer (1343-1400) about an argument between eagles as to the existence of free will.