Making the going good for getting Out

ROBERT HENDERSON suggests some ways in which the No side can maximize its chances of winning the referendum on EU membership

Amidst all the confusion and excitement of bringing about a referendum on Britain’s membership of the EU, it is easy to forget that there are considerable risks associated with the vote. The government will almost certainly campaign to stay in, as will Labour and the Liberal Democrats, and many institutions, lobby groups, media groups, foreign governments, and influential individuals. Public opinion, although hardening towards leaving, is fickle and cannot be relied upon. A decision to stay in would probably destroy the UKIP, and would also seriously undermine Conservative Eurosceptics. It is therefore essential that we should think about the likely shape of the campaign, and how we who believe in leaving can improve the odds.

A) How to leave

Article 50 of the Lisbon Treaty states:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in Paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 4. For the purposes of Paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union. 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49 (1) It is strongly implied in in Para 3 of the Article that unilateral withdrawal is possible: The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in Paragraph 2.

However, the clause does not explicitly give the right of unilateral secession, and could be interpreted as merely referring to how any agreement might be scheduled to take effect. The other EU members could adopt this interpretation to thwart the UK leaving without declaring UDI.

The Vienna Convention on the Law of Treaties cites two legitimate instances where a party wants to withdraw unilaterally from a treaty which does not make any provision for withdrawal – where all parties recognise an informal right to do so, or the situation has changed so substantially that the obligations of a signatory are radically different from that which was originally agreed.

The informal right patently does not apply in the case of the EU. As for radical changes to the obligations of a signatory, that would be difficult to sustain. It is true that the organisation (the EU) the UK belongs to now is radically different from that which they originally joined in 1973 (the EEC), but the UK has signed new treaties to agree to the new circumstances as they have arisen. Hence, there would be no radically changed obligations which had not been taken on formally by the UK.

The only precedent of any sort for withdrawal is Greenland’s secession in 1985 from the European Economic Community (EEC). This was facilitated by the Greenland Treaty. However, it is not an obviously relevant precedent because Greenlanders retain Danish citizenship – for Greenland has home rule, not full independence from Denmark. They are consequently full EU citizens. Because Greenland is also one of the Overseas Countries and Territories of the EU it is also subject to some EU law and regulations, mainly those relating to the Single Market. Even if it was accepted by the other EU members that there is a unilateral right of secession, the fact that it could only take place legally after two years would give the remainder of the EU the opportunity to run the UK ragged before the UK left.

As for getting an agreement which would allow the UK to generally re-establish its sovereignty, especially over the control of its borders, this is most improbable. A qualified majority in the European Council is required, and even if such a majority is obtained the European Parliament can block the secession. The potential for delay and blackmail by the EU of the UK is considerable.

In any event it is likely is that the EU would drive a bargain which is greatly to the UK’s disadvantage, because the Eurofederalists would be terrified of creating a precedent for any other EU member which might wish to radically change its relationship with the EU. That would make them demand conditions of the UK which were so unappealing it would deter other member states from following suit. There is also the danger that the Europhile UK political elite would take the opportunity to agree to disadvantageous terms for the UK simply to keep the UK attached to the EU as Norway and Switzerland are attached.

The treaty arrangements of Norway and Switzerland are routinely portrayed by supposed Eurosceptics as purely trade relationships. They are not. Both countries are firmly within the EU straitjacket. The Europhile BBC ran a story in 2012 entitled “Non-EU Norway ‘almost as integrated in union as UK’” (2). As for Switzerland, a glance at their treaty arrangements will show their close EU embrace (3). Most importantly, they have no control of immigration from the EU. If the UK signed up to the Single Market after formally leaving the EU we should be in the same boat.

The OUT camp must make it clear that it would be both damaging and unnecessary for the UK to abide by this Treaty requirement. Even if the UK did not try to sign up to the Single Market, it would allow the EU to inflict considerable damage on the UK both during the period prior to leaving formally and afterwards, if the price of leaving with the EU’s agreement was for UK to sign up to various obligations – for example, to continue paying a large annual sum to the EU for ten years.

There is also the danger that the stay-in camp could use Article 50 to argue that whether the British people want to be in or out, the cost of leaving would be too heavy because of this treaty requirement.

The Gordian knot of Article 50 can be cut simply by passing an Act of Parliament repealing all the treaties that refer to the EU from the Treaty of Rome onwards. No major UK party could object to this because all three have, at one time or another, declared that Parliament remains supreme and can repudiate anything the EU does if it so chooses.

If the stay-in camp argue that would be illegal because of the treaty obligation, the OUT camp should simply emphasise (1) that international law is no law because there is no means of enforcing it within its jurisdiction if a state rejects it and (2) that treaties which do not allow for contracting parties to simply withdraw are profoundly undemocratic because they bind future governments.

The OUT camp should press the major political parties to commit themselves to ignoring Article 50. If a party refuses that can be used against them because it will make them look suspicious.

B) The parties’ plans of action if there is a vote to leave

It is important that all the parties likely to have seats in the Commons after the next election are publicly and relentlessly pressed to give at least a broad outline of what action they would adopt in the event of a vote to leave. Left with a free hand, there is a serious danger that whatever British government is in charge after a vote to leave would attempt to bind the UK back into the EU by stealth by signing the UK up to agreements such as those the EU has with Norway and Switzerland which mean that they have to:

pay a fee to the EU annually

adopt the social legislation which comes from the EU and

agree to the four “freedoms” of the EU – the free movement of goods, services, capital and labour throughout not merely the EU but the wider European Economic Area (EEA).

It is probable that the Westminster parties will all resist this, but that would present them with two problems. First, a refusal to do so would make them seem untrustworthy. Secondly, if one party laid out their position but the others did not, that would potentially give the party which did say what it would do a considerable advantage over the others which did not. If no party puts its plans before the public before the referendum, there should be demands from those who want the UK to leave the EU that any new treaties with the EU must be put to a referendum and, if they are rejected, the UK will simply trade with the EU under the WTO rules.

C) Repudiate re-negotiation before the referendum

Supporting the negotiation of a new relationship between the UK and the EU before a referendum is mistaken, because it would seem to many to be giving tacit approval for renegotiation and legitimize the possibility of the UK remaining within the EU. It is also rash, because the likelihood of the EU giving nothing is very small. Indeed, they might well give something substantial, because the UK leaving the EU would be a very great blow to the organisation. The UK is the country with the second largest population within the EU with, depending on how it is measured, the second or third largest economy and the country which pays the second largest contribution to the EU budget. For the EU to lose the UK would not only be a blow in itself, it would also create a very strong precedent for every other EU state, especially the largest ones. If the UK left and prospered, the temptation would be for other EU states to leave.

If the EU offered a big carrot, such as the abolition of benefits for migrants to the UK from the rest of the EU until they had lived in Britain for ten years, that could seriously undermine the resolve of those wanting the UK to leave the EU because it would dovetail with British fears of mass immigration from the EU and the mainstream media representation of the immigration problem as being essentially a welfare problem. The Europhiles would then be able to represent the immigration threat as no longer a threat as they bleated their mantra “the only immigrants will be those who are working and paying their taxes”. That would be difficult for any mainstream British politician or party to counter because they have all be peddling for years the line of welcoming “hard working immigrants”.

But even if negotiation produced nothing of substance, as happened with Harold Wilson’s “renegotiation” of 1975, it would be a mistake to imagine that it would not influence the referendum result. The electorate is divided between the resolute come outs, the resolute stay-ins and the wavering middle. A claim by the stay-in campaigners that something had been conceded by the EU, however insignificant, would provide the waverers with an excuse to vote to stay in because they could convince themselves they were voting for change. If the EU were to offer nothing, waverers might see this as evidence that the EU was too powerful to oppose.

Those who want the UK to leave should unambiguously put the case for no renegotiation. Dismiss anything Cameron (or any other PM) brings back from the EU by way of altered terms as being irrelevant, because the EU has a long record of agreeing things with the UK and then finding ways of sabotaging what was agreed. In addition, a future British government may agree to alter any terms offered at the time of the referendum. The classic example of this changing of agreed terms happening in the past is Tony Blair’s giving up of a substantial amount of the Thatcher rebate in return for a promised reform of the Common Agricultural Policy (CAP), a promise which was never met. That episode produced my all-time favourite amongst Blair’s penchant for lying. Two days before he went to the EU meeting at which he gave away a substantial part of the rebate he declared during Prime Minister’s Questions that the rebate was “non-negotiable – period”.

It is difficult to envisage any British prime minister not trying to negotiate with the EU before a referendum, but it might just happen if whoever is in power when the referendum is announced were to be told privately by the major EU players that nothing will be given and the prime minister of the day concludes it would be best to pretend that a decision had been made not to negotiate rather than risk the humiliation of getting nothing, perhaps not even a pretence of negotiation before nothing is given. The EU might calculate that it would be a gamble worth taking to send a British PM away with nothing, whilst hoping the referendum vote would be to stay in, because then the power of the UK to resist further integration would be shot.

If the EU offers nothing, the OUT camp should welcome the fact and stress to the public that if the referendum is to stay in, the EU could force any federalist measure through because not only would any British government be much weakened in its opposition to more federalism, the UK political class as a whole would more than willing to go along with it because of their ideological commitment to the EU.

D) After the vote

Ideally, the government which deals with the EU after a vote to leave will have committed itself to a plan of action before the referendum vote. However, as described above, it is quite possible that this will not happen because the UK’s overwhelmingly Europhile political class will try to re-entangle the UK with the EU. To prevent them doing so, there should be a concerted campaign after the vote to ensure that the British public understands what is being done on their behalf with a demand for a further referendum to agree any new treaty.

The terms of the debate

It is essential that the Europhiles are not allowed to make the debate revolve around economics. If they do it will effectively stifle meaningful debate. As anyone who has ever tried to present economic ideas to an audience of the general public will know it is a soul-destroying experience.

Take the question of how much of UK trade is with the EU. The debate will begin with the stay-in camp saying something like 45% of UK trade is with the EU. Those wanting to leave the EU will respond by saying it is probably less than 40% because of the Rotterdam/Antwerp effect. They will then be forced to explain what the Rotterdam/Amsterdam effect is. That is the point where the general public’s concentration is lost and the debate ends up proving nothing to most of the audience.

But although nothing is proved to the general audience by detailed economic argument, the audience will remember certain phrases which have considerable traction. In amongst the serious debating on the issue of trade there will be phrases such as three million jobs in Britain rely on the EU and dire threats about how the EU will simply not buy British goods and services any more. This is nonsense, but fear is not rational, and many of those who vote will enter the voting chamber with fear of losing their jobs in their heads regardless of what the OUT camp says, if the debate is predominantly about economics. Shift the debate away from economics and the fear-inducing phrases will be heard less often.

National sovereignty

How should those wanting to leave the EU shift the focus of debate? They should put the matter which is really at the core of the UK’s relationship with the EU – national sovereignty – at the front of the OUT camp’s referendum campaign. Campaign under a slogan such as Are we to be masters in our own house?

Making national sovereignty the primary campaigning issue has the great advantage of it being something that anyone can understand because it is both a simple concept and speaks directly to the natural tribal instincts of human beings. Being a simple concept readily and naturally understood, it is a far more potent debating tool than arguments attempting to refute the economic arguments beloved of the stay-in camp. The fact that the natural tribal instincts have been suppressed for so long in the UK will increase its potency because most people will feel a sense of release when it begins to be catered for in public debate.

The appeal to national sovereignty has a further advantage. Those who support the EU are unused to debating on that ground. That is because uncritical support for the EU has long been the position of both the British mainstream political class as a class and of the mass media. That has meant that the contrary voice – that which wishes Britain to be independent – has been largely unheard in public debate for thirty years or more. Where it has been heard, the response of the pro-EU majority has not been rational argument but abuse, ranging from patronising dismissal of a wish for sovereignty as an outmoded nationalism to accusations that national sovereignty amounts to xenophobia or even racism. These tactics – of excluding those who want to leave the EU from public debate and substituting abuse for argument – will no longer be available to the pro EU lobby.

Immigration

The most threatening and energising subject relating to the EU for the general public is immigration. The public are right to identify this as the most important aspect of our membership of the EU because immigration touches every important part of British life: jobs, housing, education, welfare, healthcare, transport, free expression and crime besides radically changing the nature of parts of the UK which now have large populations of immigrants and their descendants.

The public rhetoric of mainstream politicians and the media is changing fast as they begin to realise both what an electoral liability a de facto open door immigration policy is, as the effects of mass immigration become ever more glaring. The argument is shifting from the economic to the cultural. For example, here is the Daily Telegraph in a leader of 25 March:

The fact is that, for many in Britain (especially those outside the middle classes), it is not just a matter of jobs being taken or public services being stretched, but of changes in the very character of communities. Those changes may not necessarily be for the worse: as the Prime Minister says, Britain’s culture has long been enriched by the contributions of new arrivals. But as long as ministers treat immigration as a matter of profit and loss, rather than the cause of often wrenching social change, they will never be able fully to address the grievances it causes. (4)

This new frankness in public debate means that the OUT camp can use the immigration argument freely, provided they keep the language within the confines of formal politeness. The subject will naturally dovetail with the emphasis on national sovereignty because the most important aspect of sovereignty is the ability to control the borders of the territory of a state. Judged by their increasing willingness to talk publicly about immigration, it is probable that the mainstream UK parties will be content to go along with ever more frank discussion about immigration.

It will not be possible to avoid economic arguments entirely, but the economic argument must be kept simple. The OUT camp should concentrate on repeating these two facts:

The disadvantageous balance of payments deficit the UK has with the EU

The amount the UK pays to the EU.

Those are the most solid economic figures relating to the EU. There is some fuzziness around the edges of the balance of payments deficit because of the question of where all the imports end up (whether in the EU or outside the EU through re-exporting), while the amount the EU receives is solid, but has to be broken down into the money which returns to the UK and the amount retained by Brussels. Nonetheless these are the most certain figures and the least susceptible to obfuscation by the stay-in side. The best way of presenting the money paid to the EU is simply to say that outside the EU we can decide how all of it is spent in this country and to illustrate what the money saved by not paying it to the EU would pay for.

It will also be necessary to address the question of protectionist measures the EU might take against the UK if the vote was to leave. It is improbable that the EU would place heavy protectionist barriers on UK exports because:

The massive balance of payment deficit between the UK and the rest of the EU, which is massively in the EU’s favour.

Although the rest of the EU dwarfs the UK economy, much UK trade with the EU is heavily concentrated in certain regions of the EU. The effect of protectionist barriers would bear very heavily on these places.

There are strategically and economically important joint projects of which the UK is a major part, like Airbus and the Joint-Strike Fighter.

The Republic of Ireland would be a massive bargaining chip for the UK. If the UK left and the EU rump attempted to impose sanctions against Britain this would cripple the RoI because so much of their trade is with the UK. The EU would be forced to subsidise the RoI massively if protectionist barriers against the UK were imposed. The EU could not exempt the RoI from the sanctions because that would leave the EU open to British exports being funnelled through the Republic.

The EU would be bound by the World Trade Organisation’s restrictions on protectionist measures.

The economic issues which are not worth pursuing in detail are those relating to how much the EU costs Britain in terms of EU-inspired legislation. It may well be that these load billions a year of extra costs onto the UK, but they are not certain or easily evaluated costs, not least because we cannot in the nature of things know what burdens an independent UK would impose off its own bat. Getting into detailed discussions about such things will simply play into the hands of the stay-in camp because it will eat up the time and space available to those promoting the OUT cause.

Other issues

Apart from the economic questions, the stay-in camp will use these reasons:

1. That the EU has prevented war in Western Europe since 1945. This can be simply refuted by pointing out that the EU was not formed until twelve years after WW2; that until 1973 the EU consisted of only six countries, three of them small, and of only nine countries until the 1980s. Consequently it would be reasonable to look for other reasons for the lack of war. The two causes of the peace in Western Europe have been the NATO alliance and the invention of nuclear weapons which make the price of war extraordinarily high.

2. That nation states such as the UK are too small to carry any real diplomatic weight in modern world. That begs the question of whether it is an advantageous thing to carry such weight – it can get a country into disastrous foreign entanglements such as Iraq and Afghanistan – but even assuming it is advantageous, many much smaller countries than the UK survive very nicely, making their own bilateral agreements with other states large and small. It is also worth remembering that the UK has such levers as a permanent seat on the UN Security Council (which allows the UK to veto any proposed move by the UN) and considerable influence in institutions such as the IMF and World Bank.

ROBERT HENDERSON is a London-based freelance writer

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