Would Britain be allowed to leave the EU?
January 10, 2009 by Ken
Filed under The British Constitution
Rupert Matthews a candidate to be a Conservative party MEP is the author of a two part article posted on Conservative Home Blog, comparing the similarities between the constitutional position of the states of the USA in the 1850s and that of the states of the EU today he says these are striking
The US supreme court consistently passed rulings that saw the power of the Union government enhanced over that of the states. The EU has had a similar history.
The main point of the articles (2nd part on Sunday) is the right to withdraw from the EU
Would Britain be allowed to leave the EU?
Rupert Matthews says of the USA: There were, essentially, three positions on the question of how a state should legally and constitutionally secede from the USA.
1. 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.
2. 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.
3. 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.
This legal argument between the power of the states and the power of the union was in the USA decided by the civil war.
The consensus in the comments seems to be that as the EU has no armed forces of its own it would be difficult for the EU to prevent us leaving.
So the conditions for that argument to continue to hold water must be that we retain the certain ability to operate our legal systems police and armed forces independently of the EU.
But of course as we already know the EU is already acquiring the power to enforce its rules across national borders in the process of a unifying our legal system, police and armed forces.
The withdrawal clause in the Lisbon Treaty is also introduced as some kind of panacea which apparently accurately sets out each State’s right to withdraw from the EU at will. Presently, there is nothing in EU precedence to suggest that any state would be prevented from doing so.
My comment:
Thus if the Treaty is ratified moving us from position 1, towards position 2, in the article.
1. States right to leave decided in its own parliament – a state a could secede any time it liked.
2. Union Rights + a a state could secede only if the other states let it do so.
The withdrawal clause is like most treaty clauses, is not written in stone and can be changed. As the concept of sovereignty in this matter will be breached by the withdrawal clause, because it places conditions on the sovereignty of our own parliament in this respect; we can no longer leave without meeting treaty obligations on the method of leaving, only those conditions will need tightening thus making it harder to leave the EU.
It has always been understood that at some point it would become legally impossible for a state to leave the EU.
The ability and the ultimate political right in the last resort to withdraw will remain for a very considerable time though it may come to have mainly theoretical significance.
In that last resort the ultimate sovereignty of the State will surely remain unchallenged for this century at least.
Meanwhile it will continue to be important to stress the potential gains in real international influence (albeit indirect) through participation in the Community’s policies and to contrast this with the highly formal and technical nature of the “sovereignty” that will be eroded.
FCO paper 1971 This is a far distant prospect
SOVEREIGNTY AND THE EUROPEAN COMMUNITIES
FCO 30/1048 – 1971
