Monday, January 12, 2009

Can We Leave The EU?

There is a rather interesting post over on Conservative Home, which I have been meaning to get to, by Rupert Matthews, a freelance Historian and Conservative MEP candidate. He asks what would happen if Britain tried to leave the EU?

In recent months I have been looking at the build up to the American Civil War and have been struck by the fact that the political and constitutional debates that took place in the USA in the 1850s are strikingly similar to those that I have been hearing recently in this country.

That set me pondering on the question: Would Britain be allowed to leave the EU?

He gives the following background...

There were, essentially, three positions on the question of how a state should legally and constitutionally secede from the USA.

States Rights. Most prevalent across the South was the view that since the Union had been called into being by the various state legislatures passing into law the Constitution of the USA, then a state could secede by passing an act through its legislature repealing that law. Effectively this meant that a state could secede any time it liked.

Union Rights. Most people in the North held that by joining the USA, the individual states had pooled part of their sovereignty to create a new body with sovereign powers of its own. A state could leave this Union only if an amendment were passed to the Constitution of the USA. Effectively this meant that a state could secede only if the other states let it do so.

Inviolable Union. A few hard liners in the north held that the creation of the USA had been an irreversible act and that no state could ever leave it.

Needless to say, I take option 1 as holding true for reasons I will get to below.

In 1861 South Carolina decided to secede. The state legislature of South Carolina passed a law repealing the law that had taken it into the USA. Over the next few weeks six other southern states did the same. Those states then began acting as if they were now independent states.

The newly elected President of the USA, Abraham Lincoln, refused to recognise the secessions. He declared that all those who had been involved in passing the secession laws were traitors to the USA and so liable to arrest and trial. But Lincoln could not actually have them arrested since the enforcement of law and order was a function of the states, and the seceding states were hardly going to arrest their own people.

The legal and constitutional impasse was, of course, solved by the Civil War, which was won by the North.

The legal argument over the constitutional position regarding secession from the USA finally reached the Supreme Court in 1869...The Supreme Court effectively discounted all the provisions of the Constitution of the USA as being irrelevant. Instead they focused on the preamble, and on one particular phrase within it. That read that in forming the USA the states were desiring to create “a more perfect Union”. The Court ruled that having signed up to that phrase, no state could ever secede from the Union.

Roll forward to 2009, and look at the current EU. The EU has a supreme court that, like that of the USA in the 19th century, has consistently given rulings that favour the Union over the states. And the EU is founded on a series of documents that include the all-encompassing phrase that the states wish to form “an ever closer Union”.

The phrase “an ever closer Union” is disturbingly close to the phrase “a more perfect Union”. Would the EU supreme court follow the lead of the USA supreme court?

Now, the question is over sovereignty. In Britain the legislation which took us in to the European Community, and from where authority to implement EU regulations, etc, derives is the European Communities Act of 1972. In the preamble to the Act, as with all Acts of Parliament, is the most powerful sentence in the English language...

Be it enacted by the Queen’s most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

This implies to me that no matter what comes after, Parliament remains sovereign and able to repeal the Act and secede from the EU. Further, there is the issue of practicalities, and I find it hard to conceive of EU nations refusing to honour the will of the people and government of Britain.  And even if the EU did not recognise it and attempted to wage war, which I feel enters the realms of fantasy, the international community may have something to say about it!

As one commenter says in response tot he article...

Surely its just a matter of asserting our Constitutional law , like the Bill of Rights 1689....

...'That noe Forreigne Prince Person Prelate, State or Potentate hath or ought to have any Jurisdiction Power Superiority Preeminence or Authoritie Ecclesiastical or Spirituall within this Realme'...

And I also take the view that these two principles alone should be sufficient to assert our sovereignty. However, might this alter when the Lisbon Treaty comes in to force?

The Lisbon Treaty introduces a new clause setting out the right of a member state to voluntarily leave the EU. However, the clause reads...

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 188 N(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.

In other words, a member state must ask to leave, at which point an agreement of secession is negotiated. This agreement has to be approved by Qualified majority. Although the treaties will cease to apply after 2 years in the absence of such an agreement.

Now, this is a shift in power and sovereignty to the EU. The EU allows us to leave, and even once we have decided to leave the EU can still apply treaty provisions for 2 years. Our Parliament has ratified the Lisbon Treaty, and thus presumably has subordinated Parliament to EU supremacy. And let's not forget the treaty is self amending, allowing this clause to be altered or removed.

So the answer is yes we can leave now and we can leave after Lisbon. I maintain that even after Lisbon a strong Government could rip up the treaty and refuse to wait 2 years, and set about ignoring the EU entirely - what would the EU do? Invade?!


Mark Taylor October 28, 2009 at 2:35 PM  

I would be interested to hear the penalities that would undoubtedly be imposed should Britain choose to leave the EU. As for invasion, well it would certainly make for an interesting dilemma, as I'm sure NATO would have something to say about it!

Anne April 24, 2010 at 12:37 PM  

I am going to concentrate on Magna Carta and the Declaration and Bill of Rights 1688/9 because, although the Treaty of Lisbon makes clear it has “Competence” over national constitutions and laws, our Government did not ask the people in a referendum if this is OK with them. BIG MISTAKE. Magna Carta is a Treaty between the British Crown and the People, and I have confirmation that the Declaration of Rights and Bill of Rights 1688-89 are also beyond the reach of our Parliament, so, they must also be out of reach of the European Union. The people have had absolutely no hand at all in ratifying any European Union Treaty, and although promised a referendum in the Treaty Establishing a Constitution for Europe, that was eventually denied to the people.

I have followed-I think- the same path as you in looking at the Constitution of the USA, to see how they became permanent Citizens of the USA and also why no one State can ever leave the USA.

However , I too looked more closely to the wording of the treaties. Here though for now, to make use of the parts of the Constitution no Government can touch, Magna Carta and the Bill of Rights 1688, there is much in the EU Treaties that are contrary to them and most certainly to part of the Coronation Oath, which Her Majesty Queen Elizabeth II made so solemnly at her Coronation. Certainly the EU does not have “Competence” over these Common Laws of the people because they are not the Governments to give. If I am wrong in that and they have been “given away” then according to R v Thistlewood 1820, to destroy the Constitution, “is an Act of Treason”. The laws of treason would apply. There is also then the solemn Oath of Allegiance to the British Crown, violation of which is regarded as the greatest betrayal of all. In this case by Members of her Majesty’s trusted and most loyal persons of all, Her Majesty’s Members of Government.

We know states can withdraw from the EU because Greenland did in 1985. According to the Vienna Convention on the Law of Treaties (VCLT) Art 54, a unilateral withdrawal is excluded, unless it is explicitly included in the Treaty. Such a withdrawal clause was in the Treaty Establishing a Constitution for Europe, now in the Treaty of Lisbon. I wrote to the Vienna Convention and the UN pointing out that the Treaty of Lisbon did not comply with certain articles in the Convention that the deliberately muddled Treaty did not meet. I did not receive a reply from either. However, my argument stands, for it STILL does not meet the requirements in the VCLT.

You have covered exactly my reasoning re the wording in the Treaties. Much depends on the withdrawal Clause. However, without the people's backing, this Country may even be thrown out of the EU and the rest glad to see it go.

You see, as our Country is destroyed basically by our own Governments, the people have nothing more to lose. They will dust down Magna Carta and use it once more.

Anne April 24, 2010 at 4:54 PM  

As already stated the Treaty of Lisbon does not comply with the European Convention on the law of Treaties. In other words there is, I would suggest, a strong argument or "case" that it should never have been accepted by that Organisation. It was quite deliberately muddled so that none could understand it (apart from a few determined people that know it kind of backwards-actually it might even be better understood if read backwards, Ahem!) That would be the very first ‘battle’ before any further action should be taken. That should take up a good few years which, in the mean time should have woken up the people in other Countries on how they too had been “had” by their own Politicians.

There is no way any of the 27 Governments should have accepted such a Treaty in the form as presented. Every politicians that took part in the forming or deliberate dis-forming of the words contained therein should also be held to account. That is just for starters. It goes on from there of course.

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