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?!