Suppose a lawyer came to the Prime Minister and said the following. “It turns out that, under the EU Treaties, if we have a referendum on leaving we can go, but before we do so all those who voted to leave must shave their heads. That’s simply a legal requirement.”
If that happened do you think the PM would say: “Well, if that’s the law, that’s the law”? Obviously not. Instead the reaction would be something like this. “I don’t believe that can actually be the law and I want you to do your best to show that it isn’t. But if it does turn out to be the law we should be crystal clear that we won’t be doing that. It is a provision the only purpose of which is to harm those wanting to leave and as such is utterly unacceptable. If someone attempts to enforce this we shall pass our own legal measures disapplying this provision.”
What applies in my head-shaving illustration applies equally to the notion the UK is forbidden from negotiating new post-Brexit trade deals with non-EU countries. I don’t agree that it’s illegal but there should be no suggestion that we would comply even if it were. The only conceivable purpose of such a provision would be to harm us and we should consider that intolerable. If push came to shove we should be willing to announce a procedure along the following lines. Repeal the 1972 Act. Announce that we would continue to accept all judgements of the ECJ and abide by all the rules of the Treaty except the provision that we could not negotiate and ratify post-Brexit trade deals with non-EU countries.
Doubtless the exact procedure could be improved, but the essence of the plan should be clear. This would obviously be an extremely dangerous manoeuvre. Quite apart from the EU not accepting repeal of the 1972 Act, there is also the risk that once we go down this path others might think of further provisions they wanted to disapplying. It could be chaos.
So let’s not. Instead let’s announce that we don’t accept that this is the law, and if it is we are willing to disapply it, but we would prefer to come to an early political deal with the rest of the EU and the institutions that we won’t attempt to vote on post-Brexit EU measures (such as the EU army) and the Commission will issue an authorisation to us to negotiate new post-Brexit trade deals.
This article was originally published by Andrew Lilico and can be read here.