Andrew Duff -  On Governing Europe

Because he is Lord Chancellor of the United Kingdom of Great Britain and Northern Ireland and Minister of Justice we should take the statement of Michael Gove more seriously than we might pay heed, for example, to the obiter dicta of the Mayor of London.

In his speech on Tuesday (19 April), Mr Gove asserted that the UK will not have to trigger Article 50 of the Treaty on European Union, the secession clause, in the event of a Leave vote. “The process of change is in our hands”, he says. “It has been argued that the moment Britain votes to leave a process known as ‘Article 50’ is triggered whereby the clock starts ticking and every aspect of any new arrangement with the EU must be concluded within 2 years of that vote being recorded – or else…

He continues: “But there is no requirement for that to occur – quite the opposite. Logically, in the days after a Vote to Leave the Prime Minister would discuss the way ahead with the Cabinet and consult Parliament before taking any significant step. Preliminary, informal, conversations would take place with the EU to explore how best to proceed. It would not be in any nation’s interest artificially to accelerate the process and no responsible government would hit the start button on a two-year legal process without preparing appropriately. … We can set the pace.”

Well, Prime Minister David Cameron has said that he will immediately trigger the Article 50 process if the referendum votes to leave. So one assumes that Mr Gove and his colleagues already have plans to hustle Mr Cameron out of Downing Street as soon as their victory (and his disgrace) is declared. What will happen next?

Setting aside the thought that one might have expected the Brexiteers already to have ‘prepared appropriately’ for secession, is Mr Gove correct about either the legal position of the new prime minister or the political climate that will prevail in the event of a vote to leave?

Mr Gove’s problem is that the European Council has already accepted the start of the formal process of British renegotiation ad referendum. Indeed, the complicated Decision of 19 February was agreed by the heads of state or government and accepted by the European Council in the full understanding that if the Brits vote to leave the EU, they will then do so.

The European Council agreed the set of arrangements that ‘constitute an appropriate response to the concerns of the United Kingdom’ as laid down by Mr Cameron in his letter to President Tusk of 10 November 2015. But the Decision (and its seven annexes) for a ‘new settlement for the UK within the EU’ will be applied if, and only if, the Brits vote to stay in the Union: if they vote to leave, the set of arrangements ‘will cease to exist’.

There is no other offer on the table. It is envisaged that no further concession will be made to the UK apart from a possible extension of the two-year period for the negotiation of the withdrawal agreement – an extension that can only be made by the unanimous agreement of all 27 remaining EU member states. (And to recap, the secession terms itself can be agreed by only 20 of the 27 remaining states of the EU, so neither Britain’s best friend nor its worst enemy has a veto.)

In these circumstances, Michael Gove displays remarkable sang-froid. What I pick up in Brussels and other EU capitals is a palpable sense of British betrayal and a growing determination that the farce of British exceptionalism has got to stop before the risk of disintegration spreads. It is now clear to all concerned that a British decision to leave will convulse the European Union. Such fears will hardly be allayed by Mr Gove’s confident assertion that the UK ‘actually invented … democratic self-government’, and that he is now kindly offering ‘the democratic liberation of a whole Continent’.

Mr Gove and his friends, who have after all dismissed the Cameron renegotiation in fairly trenchant terms, may not be worried by the demise of the February deal. But if they wish to improve on it they will have to try to do so within the context of Article 50. The idea that a Brexiteer prime minister can send another UK government letter to poor Donald Tusk, with a further catalogue of ambitious demands on the EU to give privileged special treatment to the UK as a non-member state, is for the pigeons.

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