Robert Henderson

If the UK is trapped for two years within the EU ( or even longer if all parties agree to extend the negotiating period)  a great deal of damage can be inflicted upon the UK  by hostile EU member states egged on by  the British remainers who have not accepted the referendum result and will do anything to produce a  “Brexit” which is no Brexit in anything but name.  Consequently our best course of action is for the UK to leave now and trade under WTO rules, a course of  action embraced by  the  likes of Lord Lawson and  James Dyson .

Leaving the EU now and trading on WTO rules would have considerable benefits. These are:

1. The payments the UK makes to the EU would cease immediately . The UK makes a payment each year to the EU. When the British rebate (won by  Thatcher)  is deducted,   the money left is divided into two parts. The first  is the money which is spent as the  EU  dictates.  The second is the money which  the EU simply takes and distributes to other EU members.  Exactly how much is taken away  is debatable because of complications such as the UK  Aid money the UK  gives to the EU. But even taking the lowest estimates of how much money the EU keeps for itself  this is in the region of £6-7 billion and another  £6 billion for money is  returned to fund  public and private bodies and programmes in the UK   but with EU instructions on how it is to be spent .

If   we continue with the two years after the activation of Article 50 that will mean  the UK will have paid 33 months worth of contributions  to the EU since the referendum.

2. The UK immediately gains control of  our  borders. As things stand free movement is likely to continue until March 2019. The UK government wants to introduce a cut off date from which  the free movement and the state supplied benefits  which arise from it  will cease. Their  favoured date is the 29 March this year, the day Article 50 is triggered.  The EU insists  that free movement must remain until the UK has left the EU.  If this happen several s million could flood in before the UK leaves the EU.
3. The UK can immediately start negotiating trade and other deals with any country outside the European Economic Area. If the UK goes through the two year period of negotiation no  such deals can be made or at least finalised.
4. The UK can immediately start to regain control of its fisheries.
5. The UK will immediately be free to remove or adapt any EU laws and regulations which already exist and will not be subject to any future law. If we spend two years or  more negotiating the UK cannot amend or repeal and existing EU laws and regulations and , most importantly, the UK will have to implement any new EU laws and regulations passed during the negotiating period. This would allow the rest of the EU to engage in a great deal of mischief with the intention of damaging the UK.
6. Leaving now will remove the opportunity for the remainers with power and influence to sabotage Brexit . That is probably the greatest benefit of all because there are  cabinet ministers, shadow cabinet members, backbench MPs, peers , public servants or the wealthy who  are willing  to fund court cases who would be only too willing to overturn Brexit, either  overtly or covertly.

The Vienna Convention on the  Law of Treaties provides the legal basis for the UK walking away from the EU right now. The relevant passages are these: .

PART III. OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES

SECTION 1. OBSERVANCE OF TREATIES

Article 26 “Pacta sunt servanda” Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

SECTION 3. INTERPRETATION OF TREATIES

Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

SECTION 2. INVALIDITY OF TREATIES Article 46 Provisions of internal law regarding competence to conclude treaties

2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

  Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: 20 (i) in the relations between themselves and the defaulting State; or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;

 Article 62 Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and 21 (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty

These provisions mean the UK could summarily leave by arguing (1) the EU are not acting  in good faith because of the many threats  to punish the UK for leaving the EU made by EU functionaries and politicians; (2)  that  the Treaty  leads to a result which is manifestly absurd or unreasonable or (3)  that the circumstances which now exist are radically different from what existed when the last EU treaty was signed by the UK (The Lisbon Treaty).

Statements by EU politicians and functionaries that Brexit will be deliberately punitive  for the UK to dissuade other members from leaving clearly go against the provisions of Article 50 – see examples at the bottom of this post.  Having a provision for leaving  in a treaty implies that states leaving  according to the provisions of the  treaty have a right to leave. Deliberately making leaving very  damaging for the leaving member of a treaty nullifies the right to leave. Ergo, that is  clear and emphatic  bad faith.  In this context it is important to understand  that the Vienna Convention does not require all parties to a treaty to act in bad faith to nullify a treaty – see section 2 of the Convention quoted above

But it is not only  direct threats of penal treatment of the UK which matter when it comes to bad faith.   Suppose   the EU  passed legislation during the negotiating period which  placed the UK  at a grave disadvantage  the UK would still have to implement the legislation regardless of its effects on the  UK during the period of negotiation. A good example, would be legislation   which would have severe  ill effects on the City of  London such as  a  transaction tax.

As for circumstances  being radically different take  the massive deterioration in economic performance by some Eurozone countries resulting from  the actions of the European Central Bank which are arguably directly at odds with the  rules of the ECB  for managing the Euro.  This mismanagement has created severe problems within the EU both in terms of economic instability and the increased tendency of migrants from the suffering countries to move to the richer EU countries  including the  UK.  The failure of the Eurozone to manage its affairs honestly must  count for a radical change of  circumstances.   (The vote by the  UK to leave does not  count as  a radical change of  circumstances because it is something engineered by  the UK and the Vienna Convention disqualifies such deliberate changes  as a cause to repudiate a treaty.)

Even though Article 50 has now been triggered that does not mean the UK could not leave under one or more of the Vienna Convention permitted reasons because any of those reasons and especially  that of bad faith could be invoked at any  point in the negotiation process.

Examples of EU functionaries and politicians threatening the UK with a damaging Brexit

Here  is just a minute sample of the many threats made to the UK about Brexit:

French President  Francois Hollande  “There must be a threat, there must be a risk, there must be a price, otherwise we will be in negotiations that will not end well and, inevitably, will have economic and human consequences,” the French president said.

Robert Fico, Slovakia’s prime minister, on Monday said that member states intend to make it “very difficult for the UK” and said Britain is “bluffing” when it says it can get a good Brexit deal.

The British people will be treated as “deserters” following a vote to leave the European Union, Jean-Claude Juncker has warned.

Spain will ‘take control of Gibraltar as soon as Britain leaves EU’ says Spanish Foreign Minister

Wolfgang Schäuble , the German finance minister also said the UK would be forced to pay EU budget bills for more than ten years, echoing proposals for the UK to pay an exit bill of up to £43billion.

Guy Verhofstadt has now said he expects Britain to cough up over £500bn to the European Union as it extricates itself from Brussels.

Former Belgian Prime Minister  Guy Verhofstadt claimed Britain will have to foot a €600billion bill before leaving the EU.