"A Powerful Reputation For Accuracy"

It is of little wonder that the media cannot grasp the complexities of our membership of the EU when they fail to even try to grasp the basics of a Football Club’s boardroom politics, particularly when it involves poker games between rich men, one of whom happens to be the founder of a gambling site called Betfair.

I will spare my readers of most of the details, just give a quick summary. First we come to the, very well funded, BBC who breathlessly reports this on 17th January:

Swindon Town has been put up for sale in order to avoid administration, with debts thought to be around £13m….Around £9m is set to be wiped from the deficit if Swindon enter administration for a third time in their history, but they may then face a points deduction.

Strangely enough there’s not one quote in the BBC piece that backs its assertions up and seems instead to be based on this:

When asked if he could guarantee the club could avoid administration, Patey responded: “Not a single chairman in the country could do that.” 

Still, it feeds into the lazy narrative that Swindon has had a long and dubious history of financial problems. Yet since a successful takeover in 2008 it doesn’t owe a penny to creditors who are knocking on the door, doesn’t have an overdraft, doesn’t owe the taxman.

The main creditor is Swindon’s owner Andrew Black and it exists in the form of soft debt of his own money. Swindon’s current situation is that Mr Black, the main shareholder, for personal reasons has decided to sell, and it’s been that position for many months.

But the BBC, in their wisdom, ran with Swindon financial ‘crisis’ story, picking up on a quote which was taken out of context. As a result it has lead to constant accusations from other media outlets that are of a very untrue nature. No wonder Swindon Town received an apology and damages from the Football League Paper, for blatant libel. And now today the Daily Mail has this:

Paolo Di Canio is facing an increasingly uncertain future at Swindon, amid claims the financially stricken League One club will go into administration in the next 24 hours. 

A desperate search for new investment to help offset debts of around £13m appears to have failed and left club bosses fearing they may have little alternative but to call in the administrators. 

As a consequence, Swindon’s entire first-team squad would be put up for sale, in a move that would leave Di Canio agonising over his next move.

But…oh dear

A DEAL has been reached which will see Swindon Town taken over by a consortium led by Jed McCrory subject to Football League approval, the Advertiser understands.

It is believed that the new owners and the current board, led by Andrew Black, will hold joint responsibility in the running of the club until the deal is ratified by the authorities.

Still, “a powerful reputation for accuracy” is what the media has, despite that you get a far more accurate picture of what’s going on from a humble internet forum.

Update: Just simply marvellous:

Today’s report in the Daily Mail which suggested Swindon Town’s players were all up for sale and that the club was about to be plunged into administration appears to have been the result of an erroneous email.

The Advertiser has learnt that an agent issued the missive, which intimated that every member of the Town squad was available for transfer, last night.
The Adver has also been told that several agents have been claiming to represent players who are not their clients.

Government By Fax? EEA Member Iceland Says No

Contrary to the consistently clear… naked… lie from David Cameron (and he is aware his assertion is untrue) that Norway – and thus other EEA members – have “no say”, Iceland demonstrates yet again that membership of the EEA does in fact mean having a say in Single Market rules.

As documented on this blog recently Iceland has been involved with one of biggest rejections of the EU there has ever been by an EEA member, one which centred around two legal arguments, over the collapse of Icesave. This has been an ongoing legal battle until the judgement today.

The Telegragh reports:

After the collapse four years ago of Iceland’s top lenders during the credit crunch, the British and Dutch governments stepped in to repay savers in the online “Icesave” account run by Landsbanki and wanted Iceland to pay them back directly.

Iceland did not comply, triggering a row between the governments and potentially complicating the island’s bid to join the European Union.

But the court of the European Free Trade Association (EFTA) ruled that Iceland did not break depositor protection laws by refusing to return the money. 

In other words the EU said “you have 20 seconds to comply“, Iceland, with a population of only around 313,000, said with success:
“no”

The assertion that Norway et al is governed by fax is looking more ridiculous by the day. I wonder if the Telegraph editorial team will even take note of its own report…?

Iceland says no, files its fax in the bin, and tells EU member states that it does not comply…

Article 50, 2 Years And EU Law (Part 1)

If nothing else the prisoners’ voting saga at least demonstrates that if the UK government is willing, it can delay decisions and rulings from European institutions for many years – we’re now in the eighth year of ECHR’s ruling without implementation.

With this in mind, I wish to follow on from my previous piece regarding invoking Article 50. Should we do this, there would be a two year notice period (or earlier if there’s an agreement) where the UK is still an EU member and so subject to its laws until we leave. That exit is not immediate leaves open to some the accusation that the EU will, apparently in a hissy fit, force the UK to adopt all sorts of onerous laws with a specific view of damaging us. It is an accusation that plays on the emotions rather than one that is borne out by facts.

In essence the assertion has many fallacies, but two in particular are very significant – ones which pose insurmountable hurdles for the EU to overcome even if they wanted to as they both are contradictory to the defining characteristics of its existence. I will deal with each problem in two separate posts.

The first problem covered here is, ironically, answered by David Cameron’s recent EU speech. As is well documented, not perhaps fully acknowledged by the media, repatriation of powers from the EU to the UK is not possible. There is no mechanism within EU treaties to do it and as Van Rompuy says it would lead to the end of the defining principles of the Single Market:

“If every member state were able to cherry-pick those parts of existing policies that they most like, and opt out of those that they least like, the union in general, and the single market in particular, would soon unravel,”

In this he is not wrong, even if he is in everything else. The fundamental principles of the single market according to the EU are laid out here:

The cornerstones of the single market are often said to be the “four freedoms” – the free movement of people, goods, services and capital. These freedoms are enshrined in the EC Treaty and form the basis of the single market framework.

Naturally the only way this can be established successfully is to implement laws that apply to every member state the same – which is precisely why the Single Market is used as a Trojan horse to facilitate ever closer political and economic union. To ensure the Single Market runs according to the same set of rules, it needs a body of a bureaucratic makeup to impose those rules, and one which is aloof from its member states. That is the EU’s raison d’etat – thus to behave contrary to that would be in breach of the fundamental discrimination principles of the Treaties as well as its intentions. An example of those principles are laid out clearly by Article 34 onwards of the Lisbon Treaty (page 56).

It’s the same reason that UK minimum pricing of alcohol is illegal under EU law as it discriminates against similar cheaper alcoholic products from elsewhere in the EU, in direct conflict with the principle of free movement of goods.

So by logical conclusion what applies to the UK also applies to EU institutions; they are duty bound by EU treaties for EU laws to apply equally and it is in their interests to do so. There is no legal mechanism for the EU to deliberately tailor onerous laws to target a specific country without it applying to the other members as well, in the same way a particular country cannot tailor the Single Market for their own ends. This is borne out again by the nature of the two main forms of EU law; Regulations and Directives.

EU Regulations are defined under Article 288 of Lisbon, described as (my emphasis);

“…binding in its entirety and directly applicable in all Member States”.

Clearly then Regulations cannot be used as a targeting exercise. Therefore we come onto Directives, the second major form of EU law, which are also defined in Article 288 (my emphasis);

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

At first glance there appears to be some scope to address each country directly – a form of targeting. However not so. It merely allows flexibility to account for the differences in the makeup of countries such as for geographic reasons. So for example as an island we have to implement a directive dealing with coastal pollution while conversely, and for obvious reasons, landlocked Austria does not. But the Directive still has to have a general effect, as outlined here:

Furthermore, a directive…is a text with general application to all the Member States.

Discrimination is prohibited on the grounds of nationality, under EU law, in accordance with Article 7 of the Treaty of Rome. Accusations of discrimination on grounds of nationality is one of the reasons for the ongoing legal battles with Iceland over Icesave.

So it is clear, even if the EU wished it, deliberately forcing upon us, in the event of invoking Article 50, onerous laws for the sake of it out of spite is very limited under current EU treaties. They would have to find a reason that was completely unique to this country so that any law passed would not affect the other 26 Member States as a consequence.

In the unlikely event they discover one, they will hit upon another very serious problem – timescale – and it is that I will address in part 2.

Pro-EU

Your humble Frog has been accused of many things but writing pro-EU propaganda has never been one of them…until now:

I regret to say that the article to which I am here responding, although very well researched, reads like nothing more than EU propaganda. Who wrote it?

So I would like to take this opportunity to apologise to my readers who may be labouring under the impression that this blog is Eurosceptic. A small number of readers would have already been aware of the deception of course, donning special ‘truth sunglasses’ akin to those in the film They Live, which reveal the pro-EU subliminal messages that permeate this blog.

So in the style of Scooby Doo, it looks as if I have finally been unmasked. I beg forgiviness for the lie

Yours ever
TBF

Article 50 And Withdrawal

Not so long ago, it seemed unlikely that any country politically was willing to contemplate leaving the European Union. Nothing illustrates this better than the fact that all of the treaties pre-Lisbon were silent on the question of withdrawal. There were a number of theories for this; partly it would have been contrary to member states’ commitment to “ever closer union”, partly it could have encouraged members to make the outcome more likely and partly that the process of leaving is a significant legal challenge best left unspecified in a treaty – a legal challenge made more complicated the longer member states remain within an ever integrating Union.

So in the absence of a specific provision for exit, international treaties are usually covered by Article 56(1) of the Vienna Convention on the Law on Treaties which states:

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 

Interestingly, and perhaps ironically, these provisions of the Vienna Treaty did not cover EEC / EU Treaties before Lisbon. The spirit and terms of those treaties as epitomised by “ever closer union”, with the long-term goal of full political and economic integration, meant the “right of denunciation or withdrawal” was never implied. Quite the opposite in fact. Thus it could’ve been argued therefore that exit of the EU was not specifically allowed under international law.

Crucially this was reinforced, by virtue of its absence as a clause, that the Vienna Treaty also does not list sovereignty as a means of automatically absolving countries from their treaty obligations. There is no legal defence within the Vienna Treaty for a country who wishes to withdraw unilaterally from its obligations as it sees fit. This became especially true due to the nature of EEC/EU Treaties. The European Court of Justice has a well-established interpretation that EU treaties are permanently binding on the Member States and limit their sovereign rights as per Flaminio Costa v ENEL [1964] ECR 585 (6/64) – (my emphasis): 

“By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to Community, the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves … The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights” 

However the problems and arguments with Article 56(1), and pre-Lisbon, are now largely moot points, as the Lisbon Treaty explicitly makes provision for the voluntary secession of a Member State from the EU and this provision comes via Article 50. Therefore exit from the Lisbon Treaty, and subsequently from the EU, is instead covered by Article 54 of the Vienna Convention on the Law on Treaties (my emphasis):

The termination of a treaty or the withdrawal of a party may take place:

(a) in conformity with the provisions of the treaty; or

(b) at any time by consent of all the parties after consultation with the other contracting States. 

For the first time in an EU treaty there is an exit clause and one that is backed up by international law. One should note at this point that Article 50 does have two areas of a lack of clarity particularly for the EU – for example over the issue of more than one member wanted to withdraw at the same time, especially if there was a mass exit, and more importantly it contains no special provisions on the requirements for the withdrawal of a Member State which has adopted the euro. However these are concerns which should not affect the UK, so this piece will concentrate on a UK exit only.

One overlooked factor with Article 50 is that it actually contains two choices of withdrawal not one; it allows for a negotiated agreement where the Member State in question and the EU agree terms but it also recognises a unilateral right of withdrawal – a Member State simply hands in their notice and serves out their two year notice with no desire for negotiation whatsoever. This is clearly defined by Article 50 (3):

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. 

The unilateral right of withdrawal has the added benefit of acting as a longstop – as a negotiating tool – that prevents the EU from imposing impossible conditions upon a Member State with the intention of trying to stop their exit.

So in practice, should the UK want to change its relationship with the EU, Cameron would, using the Royal Prerogative and as per Article 50 (2) notify the European Council via President Van Rompuy of our intentions. Then, as per Article 50 (2), there would begin a period of negotiations:

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. 

Though it’s left unsaid with Article 50, any country leaving would necessitate a new EU treaty as it would require amendments to the founding treaties. Though there is no precedent to draw on regarding a country leaving the EU under Lisbon, we can find an imperfect example with Greenland in 1985 who left the then EEC which required a treaty – unsurprisingly called The Greenland Treaty of 1985, documented by Hansard 20th July 1984. It’s worth noting Teddy Taylor’s comments at the time, about how very complex the whole process of leaving was:

First, my hon. Friend the Minister will agree that, judging from the papers that he and the Department kindly made available to us, the formula adopted to arrange Greenland’s withdrawal from the EEC is a highly complicated one. There is a very good reason for that. There is no clear procedure in the treaty for the withdrawal of a part-member state or indeed a member state. In view of our experience with Greenland, is there not a case for saying that the Common Market should consider its rules and treaties with a view to providing a clear arrangement for the withdrawal of member states which wish to withdraw, if other member states agree? 

Post EU and the Lisbon exit clause means the Greenland example is no longer really relevant; instead a better example of how we leave may lie with the process of accession treaties. Similar to Article 50 the accession clause in Lisbon – Article 49 –also does not mention specifically the need for a new Treaty. Yet if a country applies to join the EU a new treaty is ultimately required for precisely the same reasons as leaving – that it requires amendments to the founding treaties. A recent example is the Treaty of Accession 2011 concerning Croatia’s accession to the EU which comes into force 1st July 2013.

Under Article 49 a country formally applies for membership, then begins a period of negotiation mainly based on whether the country wishing to apply is able to sufficiently execute EU law. This is a process which only ends when both parties agree that Acquis Communautaire has been sufficiently implemented, then a treaty of accession will be signed, which must then be ratified by all Member States of the EU, as well as the EU itself, and the applicant’s country.

This process would be remarkably similar to Article 50 but obviously for opposite intentions. The UK would formally notify intentions to leave, negotiate, and then sign the resulting treaty which is ratified by the EU and all Member States. Those countries wishing to join the EU have the option of saying no by changing their minds if the terms aren’t right, those countries wishing to leave have the option of saying no by not accepting the withdrawal agreement if the terms aren’t right.

One quirk with Article 50 though is as a member of the EU – the European Council and the Council of the EU – the UK would ending up sitting on both sides of the negotiating table regarding the new treaty. So this is where Article 50 (4) comes in (my emphasis):

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.

This is entirely logical otherwise the UK would end up negotiating with itself. This exclusion is entirely consistent to Article 49 where accession countries are also absent from the European Council and the Council…by virtue of not yet being EU members.

In summary Article 50 allows us to fulfill our international obligations, abide by our EU treaty agreements and allows for an orderly exit with minimum of disruption particularly with regarding trade.

The Hidden Trap

David Cameron’s speech this morning, which I described earlier in robust terms, seems to have done its intended trick and united his party albeit temporarily (the divisive gay marriage vote is yet to come). So it’s no surprise to read Daniel Hannan singing his master’s praises, despite him knowing that the renegotiation option is not possible.

On the domestic political front, Cameron’s speech is a superficially clever old wheeze. Cameron gets to outflank the Labour party who now seem embroiled with confusion over their EU policy (perhaps less time faffing about with the Nash Equilibrium and more time developing principles might help), while leaving UKIP with a conundrum I’m not confident that they will resolve adequately. Time will tell I guess.

The potential trouble for Cameron though comes down to detail – can he maintain, for five years, the assertion of repatriating powers despite it not being possible? We’ve had form from Mr Cameron on this before with the ‘fake veto’. Initially it gave him a poll boost, yet when reality hit home, less than two months later, the picture was somewhat different. In that context five years is a very long time to keep up successfully a lie, and as Richard North writes a massive lie is exactly what Cameron’s speech was.

Yet despite the so-called clear water, a description beloved of the media, between Labour and the Tories on the EU issue, this is immaterial. The Tories are very unlikely to win the next election, for various reasons, but a referendum on the EU, or lack of one, will not be one of them.

Nor indeed does the next election necessarily rest on the performance of the economy. Despite the political cliche of “It’s the economy, stupid”, elections in this country in the last 20 years, since the phrase was coined, don’t bear that out. John Major won in 1992 in the midst of a recession, yet lost heavily when the economy was picking up in 1997 (When told by Treasury officials in 1997, the economy handed over by the Tories was better than expected, Gordon Brown’s response was; “Do you want me to write a thank-you letter”?). Yet ten years later Brown’s popularity sunk, not because of the credit crunch that was to come, but because of the election never was. Brown’s dithering displayed a lack of leadership – the killer weakness is incompetence, or the impression of it. Here the coalition has displayed it in spades, epitomised by Osborne’s disastrous budget of last year

But despite that by far the biggest threat to a Tory majority government is none of the above nor indeed UKIP but the electoral system. The electoral bias is significant according to the UKPolling Report (my emphasis):

It is far easier for Labour to secure a majority in the House of Commons than it is for the Conservatives. If Labour lead in the vote they will secure an overall majority, if the parties are neck and neck then Labour will be by far the largest party. In contrast, depending on how well the Liberal Democrats do, the Conservatives need to be in the region of 9 or 10 percent ahead in the polls to secure an overall majorty.

Currently the Tories are 5 points behind. So without implementing a boundary review, the Tories are at a huge disadvantage, and it looks as if the latest boundary review has been knocked on the head for this Parliament. Then there is postal voting, a system of electoral fraud that benefits Labour more than the Tories. Without resolving these issues, the Tories are more than likely to be dead and buried at the next election. Thus I’m not convinced a referendum on the EU will be enough to save them.

Therefore Labour don’t actually have to promise one to win and, unless they reverse their own policy, we won’t be getting a referendum. One wonders if this is why Cameron has promised one in the full knowledge he won’t ever be called on to deliver?

And even in the miraculous event he does win the next election, his reluctance to make explicit what he would do in the face of the inevitable failure of renegotiation is very apparent as highlighted by Norman Tebbit in the Telegragh:

He was quite clear that if his negotiations not just to repatriate powers, but to reform the very structure of the EU and bring into question the concept of “ever closer union” were successful, he would campaign for a Yes vote. He was rather less clear about whether if they failed, he would then campaign for a “No” vote. Indeed he repeatedly dodged that question.

In other words; “we won’t let matters rest there”? We’ve been here before.

And there lies the hidden trap. By promising an EU referendum we’re either faced with voting for a liar who won’t deliver or, with the odds heavily stacked against Cameron winning the election, the Tories inevitably losing the next election thus prompting the accusations yet again that EU promises don’t win elections. In such circumstances one can see the issue being ‘parked’ for another generation.

Perhaps that’s the point all along?

Bullshit Bingo

“I believe that our renegotiation objectives have been substantially though not completely achieved, and that the government would recommend a vote in favour of continued membership”.  Harold Wilson 11 March 1975

Having to listen to Cameron waffle on about the EU at eight in the morning, with nothing stronger than a cup of tea, is not the best way to start the day. Therefore a game of bullshit bingo was necessary to get me through. Yep there they were, phrases and imagery like; “peace in Europe since WW2”, “isolation if we left”, the lie about “Norway having no say” and so on. Interestingly he also tells another lie:

If we left the European Union, it would be a one-way ticket, not a return.

That’s not true, we can rejoin under Article 49 of the Lisbon Treaty.

The full transcript is here. The key promise (if you don’t want to read through all the waffle) is:

The next Conservative Manifesto in 2015 will ask for a mandate from the British people for a Conservative Government to negotiate a new settlement with our European partners in the next Parliament.

It will be a relationship with the Single Market at its heart.

And when we have negotiated that new settlement, we will give the British people a referendum with a very simple in or out choice. To stay in the EU on these new terms; or come out altogether. It will be an in-out referendum.

Legislation will be drafted before the next election. And if a Conservative Government is elected we will introduce the enabling legislation immediately and pass it by the end of that year. And we will complete this negotiation and hold this referendum within the first half of the next parliament.

It begs a number of questions:

If Cameron can’t (which he won’t) negotiate a new settlement, then do we still have a referendum or do we leave anyway?

What if he can’t get all of his demands, do we still get a referendum on say for example only one power returned, of half of them or three-quarters?

What if there’s no new EU Treaty for Cameron to threatened to veto within the next Parliament and so no opportunity arises for negotiation does that mean no referendum?

The whole thing is one damn fudge to keep us in.