Ever since the Lisbon Treaty was ratified it has been suggested that Article 50 is the only legal route to withdrawal from the EU. With great respect to those taking the contrary view, including Christopher Booker, that proposition only has to be stated for its flaws to be obvious. Are they really saying that before the Lisbon Treaty it was legally impossible to withdraw from the EU? If so, how were we going to withdraw in 1975 had the votes been fairly counted?
The British Government, the European Commission and every foreign ministry in the EEC accepted in 1975 that the UK could withdraw. That must be right. An international treaty – and the EU treaties are international treaties in both form and substance – is based on consent.
Even if the Treaty on European Union contained a provision preventing Member States from withdrawing from the EU it would be void, as being contrary to their fundamental or ‘jus cogens’ rights. The TEU is subject to the Vienna Convention on the Law of Treaties 1969, having entered into force after 1980. That argument is so powerful neither the Divisional Court nor the House of Lords, with respect, dared refer to it in the Metric Martyrs case.
Article 69 voids any treaty provision which is in breach of the ‘jus cogens’. The Treaty of Rome pre-dated the VCLT, but since the latter simply codified existing treaty law the result is the same.
Although a number of Remain campaigners have falsely suggested that no country has ever left the EEC or EU, they are simply wrong. The first state to withdraw was the People’s Democratic Republic of Algeria, on obtaining independence in 1962. Algeria was not a French colony – since 1830 she had been an integral part of France. The next country to go was Greenland, in 1985. Under the 1953 Danish Constitution Greenland is part of the Kingdom of Denmark. She therefore joined the EEC, against the wishes of her people in 1973, a factor in the vote in favour of Home Rule in 1979. No one suggested that Greenland could not withdraw.
The legal illiterates arguing that Lisbon is in the only route to withdrawal are effectively asserting that part of a state may withdraw from the EU but not a whole state. With respect, that is simply absurd. I suppose we could withdraw in bits, but it would be silly.
It is irrelevant that the TEU was concluded for an unlimited period. That does mean that it cannot be amended or revoked, indeed the Treaty of Rome, which had an identical provision, has largely been replaced. It simply means that it does not expire automatically after a set period, like the Western European Treaty. There is no inconsistency between the TEU not having a shelf life and Article 50.
There are several routes to withdrawal under the VCLT. The most interesting is Article 50, which provides, sensibly, that a state is not bound by a treaty where its signatories were corrupted by another state party. That is this case, as both British signatories, Edward Heath and Sir Geoffrey Rippon QC, were German (DVD) agents at the material time. The UK is not therefore bound by the TEU, which is as much tainted by Germany’s corruption of Heath and Rippon as the UK accession treaty, the Treaty of Brussels.
Article 62, read with 65(2) provides for withdrawal on three months’ notice where there has been a fundamental change of circumstances. That is this case, as mass immigration of unskilled and semi-skilled labour from Eastern Europe has made the imposition of the TEU far more onerous for the UK than contemplated, driving up the costs of EU membership by far more than even our gross annual contribution, never mind the net.
The VCLT, read with the jus cogens and the UN Charter, clearly implies a right of withdrawal on reasonable notice, defined in VCLT Article 56(2) as 12 months. The better view, surely, is that the UK should withdraw on 12 months’ notice.
TEU Article 50 is really aimed at states which are economically dependent upon the EU, i.e. states which trade with other Member States at a surplus, and so need continuing tariff-free access to the so-called single market. Mutual tariffs at 10% would be a blessed relief for our hard-pressed car industry. In 2015 the EU officially bought just 706,000 British cars, many of which will have been exported outside the EU anyway. We bought a staggering 1,664,000 cars from them.
The notice period under Article 50 is 2 years.
Municipal (national) law is quite different from treaty law. Parliament should repeal the hated European Communities Act 1972 shortly after we vote to leave. Once the ECA has gone the TEU and secondary instruments having direct effect (regulations and some directives) would cease to apply in the UK.
During the transitional period, which might be 3 months (VCLT 62), 12 months (VCLT 56) or 2 years (TEU 50), UK regulations incorporating EU obligations could simply be revoked or amended. Sensibly, EU nationals exercising treaty rights here and nationals of other states, mostly in the Third World, exercising derivative rights, mostly via marriage, could be given the transitional period in which to pack up and leave. This could easily be done by incorporating transitional provisions in the instrument revoking the EEA (European Economic Area) Order. Transitional provisions would also make life easier for employers replacing EU labour with British, except for Polish delis.
We will only see the full economic benefits of withdrawal after the end of the transitional period, another powerful argument in favour of using the VCLT.
Extradition to and from EU member states would go back to the old arrangements, none of which need modifying. There would be far fewer European criminals here after withdrawal, so the number of cases would go down.
There would indeed be passport controls at the UK/Ireland frontier, but the reality is that Ireland would probably follow us out.