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Why the onus is on the EU to do a Brexit deal

3 August 2019

7:20 AM

3 August 2019

7:20 AM

In the run-up to the referendum, a common argument against Brexit went like this: 

“We should not leave the EU, because if we try, the EU will be capricious and irrational, it will not prioritise the welfare of its people, it will instead punish us, we must be afraid of that wrath, forget any merit, we must be prudent”.

A similar argument is often discussed at length by Sir Ivan Rogers, and repeatedly published in The Spectator. It is both right and wrong. The people who believe it are not ‘Remoaners’, as some might claim: they are patriots. But I disagree. And for me, this argument is why I voted to leave.

I am an autonomous and free human being. I am also a citizen of a society. I surrender my freedoms in order to make that society function. This is a trade-off I make every day. The EU superimposed itself on that trade. It took from me the powers I had loaned to someone else. It did so ‘for my own good’ in 1992. But it has used those powers poorly.

I like Americans. I share values with their multi-ethnic free society. I would like Britain to have a formal free trade agreement with the United States. I know that the special relationship might not mean a good deal, but I’m pretty sure the UK could reach a fair negotiated settlement with these decent human beings. But Britain wasn’t allowed to; the EU told us it would do that for us. But it didn’t. The EU messed up.

Yet I doubt now whether anyone – let alone the 33 per cent of unemployed young people in Italy – would number this incident among the EU’s top ten blunders.

But we should. Because the EU that messed up the America deal – and that hasn’t ratified the Canada trade deal – is going to mess up ours too. Any lawyer can tell you this now, because Article 50 says this:

“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”.

The key words here are ‘the Union shall’. Not the UK ‘shall’. Not the Brexiteers ‘shall’. The EU ‘shall’.

The legal duty has always been on the EU to conclude a Withdrawal Agreement with us. There’s no legal duty on the UK. Let me be very clear: there is a binding legal obligation upon the EU to provide us with what the media call ‘a deal’. Not only shall they negotiate, but they shall “conclude” one.

But they haven’t even tried: the proposed WA is so bad that even Parliament rejected it three times. The ‘union’ seems now to instead to be hell bent on grandiose opposition to our new Prime Minister. But their legal duty is clear and they’ve breached it.

Yet we will be told the failure of the ‘union’ to fulfil its legal duty is somehow our fault. They don’t care. Law seems very flexible idea inside this ‘union’. The UK can’t sue them in the European Court of Justice for compensation for failure to meet their legal duty, as in any free society – not without howls of laughter. How could we trust them to honour a mere good faith clause, when they ignore higher binding obligations?

Sir Ivan Rogers knows, as I know, that leaving the EU is very hard – that doesn’t make it wrong.


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