How Britain can leave the European Union

On Thursday 23rd June 2016 in the Referendum on continued membership of the European Union the British people delivered an historic victory when they voted to leave. The result was as follows:

Remain 48.1% (16,141,241 votes) and Leave 51.9% (17,410,742 votes). This delivered a clear and unequivocal result that must now be implemented by the British Government and Parliament.

The question now is how do we leave the European Union, by what mechanism, and how quickly can it be done? Many politicians and commentators are under the mistaken belief that Britain can only leave the EU by invoking Article 50 of the Lisbon Treaty. Article 50 says, “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”.

It then sets out a lengthy, complex and costly procedure for doing so in accordance with Article 218 (3) of the Treaty on the Functioning of the European Union. The withdrawing Member State is not allowed to participate in the discussions or decisions of the European Council (Heads of Government) or the Council (Government Ministers) on the terms of withdrawal.

The whole process may take up to two years.

In fact the whole procedure can be extended indefinitely by mutual agreement of the British Government and the other 27 EU Member States. The great danger is that withdrawal could be extended beyond the next general election in 2019, and that the new government in power could refuse to implement withdrawal on the grounds that it has a new mandate.

The quickest and surest way of achieving withdrawal is for the British Government and Parliament to immediately seize the initiative and Repeal the European Communities Act (1972); to return supremacy of law-making to Parliament, and to then implement the necessary measures to disentangle us from the EU’s legislative web.

This method puts our Government and Parliament in control of the process and not the bureaucrats of the European Union. This short pamphlet summarises the legal basis for unconditional withdrawal and lays out a plan for making it happen.

The Legal Basis for Unconditional Withdrawal

1. In common with the majority of developed democracies the United Kingdom is a ‘dualist jurisdiction’. This means that our international treaties are, as such, a completely separate matter from our law. International treaties do not become part of our law unless expressly ‘incorporated’ by an Act of Parliament. It follows that, whatever a treaty may say about withdrawal, Parliament can always remove that treaty from the body of our domestic law simply by repealing its earlier Act. From that moment, the treaty becomes a purely foreign affair affecting nobody but diplomats.

2. While ‘EU law’ is recognised as part of English law, this is so only by force of the provisions of the European Communities Act 1972. ‘EU law’ is what constitutional lawyers call ‘subordinate’ or ‘secondary’ legislation. It is by the authority of Parliament, and Parliament alone, that ‘EU law’ is incorporated into our law; it follows that Parliament has the legal right to reverse that incorporation by repealing the 1972 Act at any time. Under the terms of the English Constitution,[1] the Sovereign Queen in Parliament has every right to withdraw from the EU unilaterally at any time.

3. Britain’s membership of the European Economic Community in 1972 was unlawful under the English constitution. The three simplest points of the argument are: it created another legislature over the Queen in Parliament and purports the
supremacy of EU legislation; it purports to bind future Parliaments contrary to a fundamental principle of the English constitution; and it establishes an alternative government by unelected foreign bodies without the consent of the British people. This argument is fully developed elsewhere. [2]

4. This being so, Article 50 of the EU Treaty does not bind us in international law either. Under the Vienna Convention on the Law of Treaties, no provision of an international treaty can override a fundamental constitutional principle of national law; moreover all treaty partners are presumed to be aware of each other’s constitutional principles. Parliamentary sovereignty in the UK is one such principle, and it cannot give way to any treaty provision. Indeed, a suggestion that sovereign rights of the Queen in Parliament could be in any sense limited by an international treaty is legal nonsense. Legally it was Parliament itself that limited its rights by passing the EEC Act 1972, but it retained the constitutional power to take those rights back at any time.

5. Furthermore, the right to national self-determination is one of the first principles of international law – see the Atlantic Charter, the UN Charter, the International Covenant on Civil and Political Rights, etc. In international law, there is no end of precedents of unilateral declarations of independence: from the American Revolution to the collapse of the USSR. While all such declarations technically breached the imperial law (similar to Article 50 TEU) not only are they considered compatible with the international law – they form the very basis of international law as we know it. International law is based on the interaction of sovereign nations, many of whom derive their legal personality precisely from unilateral declarations of independence.

6. To sum up, a unilateral and unconditional withdrawal would be perfectly legal both under our own Constitution, and under international law.

Unconditional Withdrawal is in the British National Interest

Negotiations with the EU on withdrawal would be pointless, indeed counterproductive. The EU cannot permit a precedent of a successful withdrawal on beneficial terms as this might encourage the withdrawal of more Member States. The EU would most likely try to make the negotiations as difficult as possible, ending in the most onerous terms for Britain. Article 50 of the Lisbon Treaty is a trap that countries intending to leave the European Union should not allow themselves to be drawn into.

Leaving the EU would give Britain back power over its own Trade Policy (now determined by the EU). What we should then do is deal bilaterally or even multilaterally with the nations of Europe, not with the EU. National governments at least have to worry about their voters, and will find it much more difficult to sacrifice their economic interests to punish us for ideological reasons.

 

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