Friday, February 09, 2007

More Tory fuckwittery regarding the EU

Matthew Sinclair comments on my point that the Tories cannot withdraw from the Social Chapter because it is part of the Treaty of Amsterdam. Unfortunately, he gets it wrong...
Firstly, the same is, I believe, true of leaving the EU which does not yet have a formal exit system, right?

Wrong.
(I don't spend much time studying EU treaties so forgive my ignorance if there is already such a system) Do you think that would stop us? Does promising to leave the EU make the UKIP a bunch of, to use your charming phrase, ignorant fools or shameless liars?

Well, Matt; you are, indeed, wrong. The Social Chapter cannot be repealed because it is now part of the Treaty of Amsterdam. Being an EU Treaty, the Treaty of Amsterdam requires the unanimous vote of the 27 EU countries to change it, in the Council of Ministers. OK?

In order to leave the EU, as UKIP advocate, we need simply to repeal an Act of (British) Parliament—the 1972 European Communities Act—and we are no longer in the European Union. Is that simple enough for you?

That is, of course, until we sign the EU Constitution, in which case our membership of the EU is then binding under EU Law and we cannot withdraw unless all 27 countries vote unanimously. If we decide to withdraw unilaterally, we can be fined not more than 10% of our GDP (roughly £100 billion).

Do you see why there's a time limit yet, Matt?

UPDATE: it seems that UKIP Peer, Lord Pearson of Rannoch, was thinking along the same lines.
Lord Pearson of Rannoch (UKIP) asked Her Majesty's Government:

"Whether, under international treaties presently in force, the United Kingdom would have the legal power to withdraw from the European Union if Her Majesty's Government or Parliament so resolved."

Lord Triesman (Parliamentary Under-Secretary, Foreign & Commonwealth Office)

"Parliament may amend or repeal any existing Act of Parliament, including the European Communities Act 1972. There is no formal procedure for withdrawal in the EU treaties, nor are there any provisions in the treaties or any other international obligations which affect the ultimate ability of the UK to withdraw from the EU. However, given that the UK has been a member of the EU for more than 25 years, and its laws and economy are intricately bound up with those of the EU, the Government would in practice have to negotiate the terms of any departure over a lengthy period."

So there you have it.

UPDATE 2: Bill points out that he cannot see mention of a fine. This may be the case; I was sure that I had read about penalties being imposed when I first read the Constitution some time ago, but this may not be so. I shall read it again. You can read the Constitution here and the section about voluntary withdrawal here.

However, what should be remembered is that once we sign the Constitution, all Justice and Home Affairs matters will transfer to the EU (which is already making moves to create EU-wide crimes) and should the EU wish to make withdrawal a more difficult matter, then it would be easy enough to do so.

The Constitution, whatever some people might say, is not dead. Parts of it are being pushed through under other bits of legislation anyway, and Angela Merkel has already said that she wants to make it a central tenet of the German Presidency. And just because the Dutch and French have rejected the Constitution does not mean that their government's cannot ratify it anyway. After all, the majority of those countries which have ratified the Consititution have done so without referenda.

The EU is now actively talking about a "mini-Constitutition" and Jose Barroso quite obviously believes that the Consititution must carry on.

24 comments:

Matthew Sinclair said...

So you agree with the rest of my post?

Lol... sorry. The combination of scotch and discussions of EU treaties bring out the shallow in me. The constitution isn't exactly a time limit is it? A constitutional bar to leaving isn't inevitably going to happen at any particular time.

On the Social Chapter. Fair enough, you've only answered half of my point though. If we can't just leave then it's about negotiating position. The treaties are renegotiated continually (according to a lawyer friend of mine) and we can make restoring the opt-out our priority next time round and could well get it; they need plenty from us given the number of decisions still requiring consensus.

Also, we could just pay the fine (the one for abrogating the Social Chapter... the leaving the EU one is big). We pay fines for our prison system all the time because it's less costly than bringing it up to EU code. Maybe this is the same.

Trixy said...

Or, we could just unilaterally withdraw from the EU and then embrace a proper democracy where the decision makers are accountable, free global trade which will not only make us richer but will actually help the (hear that, Lady G? something useful for development, rather than a fucking tea party in the parliament) and businesses which aren't bound by red tape.

Of course the constitution is a time limit, how naive of you to think otherwise. Have you not read the document? Do you not know about Europol and the ending of the veeo on JHA? Have you not seen the news about the precedent being set over the EU and criminal law?

If you're going to stick your head in the sand then fair enough, but you're a dead weight, basically. Don't be surprised when you take your head out to find it's just you and Cameron left.

Mr Eugenides said...

The European Communities Act can be repealed, of course. But I don't think it's quite as simple as that. The EC Act of 1972 does not govern our relations with other European countries. That is where our treaty obligations come in.

What about those international treaties we signed up to? Does Parliament not have to rip them up, too? It's a long time since I studied international law (and I was asleep most of the time) - how does one tear up a treaty that one has signed?

Can_we_leave_yet said...

If we left the EU unilaterally, would we still find Spanish trawlers hoovering up our fish? As far as they would be concerned, the CFP would still be in force. Who'd be right legally?

The moment we are free again cannot come soon enough.

ChrisM said...

"That is, of course, until we sign the EU Constitution, in which case our membership of the EU is then binding under EU Law and we cannot withdraw unless all 27 countries vote unanimously. If we decide to withdraw unilaterally, we can be fined not more than 10% of our GDP (roughly £100 billion)."

Could we leave, get hit with the fine, and then just refuse to pay it? Afterall, they are hardly likely to go to war over it are they?

ChrisM said...

" Also, we could just pay the fine (the one for abrogating the Social Chapter... the leaving the EU one is big). We pay fines for our prison system all the time because it's less costly than bringing it up to EU code. Maybe this is the same. "

10 % of GDP!!! Bollocks to that. I say leave and not pay it and see the fuckers try to take it by force.

Neal Asher said...

Probably, by then, a 100 mil fine will be cheaper than remaining in the EU. But what are they going to do if we just hold up two fingers (which would be perfectly apt considering the antecedents of that gesture) and tell the rest of Europe to get stuffed? No chance they could invade since the masses of health and safety legislation would be sure to prevent that. Sanctions? That'd be a laugh too.

Trixy said...

Fitzmaurice, some problems regarding the formal sources of Intenational Law:

'Considered in themselves, and particularly in their inception, treaties are, formally, a source of obligation rather than a source of law. In their contractual aspect, they are no more a source of alw than an ordinary orivate law contract.'

Can_we_leave_yet: UNCLOS 3 would once again be relevant, I suppose, which is customary international law establishing our EFZs and EEZs. The Royal Navy would be on them.

Umbongo said...

Mr E is of course correct when he writes "The European Communities Act can be repealed, of course. But I don't think it's quite as simple as that". However, I hope he's not implying that because of the mechanics of international treaty making (and unmaking) we are stuck. Also longer ago than I care to remember my lecturers in international law were not even agreed that international law as such actually existed. It could be viewed as an extension into the international field of the domestic law of civilised nations. Yes, there is a network of international treaties and conventions (eg the various treaties underlying what is known as maritime law) but to elevate the whole system to one of "law" (except for a convenient shorthand description) on a par with, say, English Common Law was (and is) debateable.

I would have thought that international treaties are akin to civil contracts in English (and Scottish?) law. Even where there is no specific clause whereby the contract can be ended there is always the implied "reasonability" test. This would include a "reasonable" method of withdrawing from the contract. The English courts are prepared to write into a contract written under English law such a "reasonable" clause: depending on the contract a simple delivery of notice to end the contract (treaty) should be sufficient.

In the case of the EU, I would prefer the direct action of the repeal of the European Communities Act together with a swift two-fingered salute to our so-called "partners" in the EU. We would still have full trade access to the EU under the WTO convention (unless the EU members withdraw from that - which they can but are very unlikely to) and that's really all we want and need from the EU: the rest of the blather from Brussels (European Defence Force, European foreign policy, CAP, CFP etc etc) can be left to (and financed by) our erstwhile partners - they're welcome to it.

Trixy said...

From Hansard:

EU: Withdrawal

Lord Pearson of Rannoch asked Her Majesty's Government:
Whether, under international treaties presently in force, the United Kingdom would have the legal power to withdraw from the European Union if Her Majesty's Government or Parliament so resolved. [HL1863]
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Triesman): Parliament may amend or repeal any existing Act of Parliament, including the European Communities Act 1972. There is no formal procedure for withdrawal in the EU treaties, nor are there any provisions in the treaties or any other international obligations which affect the ultimate ability of the UK to withdraw from the EU. However, given that the UK has been a member of the EU for more than 25 years, and its laws and economy are intricately bound up with those of the EU, the Government would in practice have to negotiate the terms of any departure over a lengthy period.

Gavin Ayling said...

OT: Independence Home's blog doesn't appear to show properly in IE6.

RE: The EU -- We're Better Off Out!

Mr Eugenides said...

I'm not suggesting we can't leave the EU; we have the sovereign right to make or withdraw from treaties as we see fit.

I'm merely making the point that our membership of the EU does not rest on a single Act of Parliament (though it is that Act which gives EU law legitimacy in this country), and so it is disingenuous to suggest that withdrawal would be no more complicated than trooping through the division lobbies.

Trixy said...

Theory and practise are very different, of course. But to actually remove the UK from the EU in legal terms is the marching through the lobby business.

Until the Constitution comes into play.

Anonymous said...

It's easy to leave the EU , sombody goes to the entrance of the Channel Tunnel and shouts f-ck off ,Germany is happy she's got what she wants Europe ,France who cares ,we can then ask our new friends to show us what Britishness is by inviting them to join the army ,the illegals can find there own way back home and claim asylum. done and dusted

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Bill said...

That is, of course, until we sign the EU Constitution, in which case our membership of the EU is then binding under EU Law and we cannot withdraw unless all 27 countries vote unanimously.

Respectfully, this is nonsense. Have you read the EU Constitutional Treaty? Under Part I, Title IX - Union Membership, Article I-60 covers the procedure for voluntary withdrawal from the Union, a power which does not currently exist under EU law (i.e. until the Constitutional Treaty enters into force). In that Treaty, although there are clauses [Art I-60(2), cross-refrerenced to Art III-325(3)] suggesting that withdrawal must be negotiated, basically after two years of notification by a Member State that it is withdrawing from the Union, EU law ceases to apply to that former Member State, EVEN IN THE ABSENCE OF A NEGOTIATED WITHDRAWAL [Art I-60(3)], unless this period is unanimously extended; obviously the withdrawing country is hardly likely to agree to such an extension. There is no mention in the treaty so far as I can see of a 'fine' potentially being imposed on the withdrawing Member State; I would be interested to have specific information about where this 'detail' is specified in the Constitutional treaty.

Of course it is highly unlikely, in my view impossible, that the EU Constitutional Treaty will ever enter into force, because it requires ratification by all 25 Member States which signed it and as France and the Netherlands have already rejected it the thing is already dead. OK there is a two year period for the death to become irrevocable, but all the huffing and puffing by the 18 or so member states which have already ratified is meaningless. It is dead.

Although no specific right to withdraw exists in current EU legilsation, under UK law it is simply a matter of repealing the 1972 Treaty, as you say.

Finally, although I am fundamentally pro-EU, the Constitutional Treaty as currently negotiated is unnecessarily complex and is a complete mish-mash creation of Giscard d'Estaing and various worthies from each Member State, in our case Gisela Stewart and others and so I would not favour ratifying it - but as two Member States have already said 'no' the whole thing is moot.

Bill said...

PS/
The EU Constitutional Treaty may be found at:
http://europa.eu.int/constitution/en/lstoc1_en.htm
and the section on voluntary withdrawal here:
http://europa.eu.int/constitution/en/ptoc13_en.htm#a73

Mr Eugenides said...

Don't click on that link! Whatever you do, don't click on the link! (Euro-filth, NSFW)

Bill said...

Don't click on that link! Whatever you do, don't click on the link! (Euro-filth, NSFW)

Most amusing, Mr Eugenides! ;) - I suppose the argument is that the truth should never get in the way of an appealing story.

nowonderwearescrewed said...

Is this blog/ commentry a meeting placefor lawyers or a meeting place for some Oxbridge academics , I never read so much garbage in my life.
Can we or not remove ourselves from the EU , please can you answer yes or no

Tom Tyler said...

Actually, when push comes to shove, if UKIP won the next election and said to the EU, "Right, we no longer recognise any of your treaties, your legislation nor your authority here, we're running the UK on our terms, sod you", what can the EU do about it? Declare war?
We can leave if we want to, all we have to do is have the guts to do what countless nations have done to each other since time immemorial; say "sod that treaty". Oh, and "give us our gold reserves back too, while we're at it". They may not be too amenable to that second suggestion, but short of launching an invasion I can't see them doing anything much about the first one.

atlast said...

Thank you kindly sir ,something I can understand ,why so much gobildy gook from above commentators.
Two fingers up all turn in the direction of Europe now!

Please remember gentlemen /Ladies this blog has thickies like me looking, so please go kindly.

Bill said...

And just because the Dutch and French have rejected the Constitution does not mean that their government's cannot ratify it anyway.

Well the Dutch PM, who is pro-EU Constitution btw, is on record as saying he would not go against the will of the Dutch people. As for the French, well the current President is in no positi on (politcally) to do very much. And whatever Angela Merkel might say, she will have to accept that the EU Constitution can only enter into force if ratified by all 25 Member States which signed it. This is just UKIP scare tactics and convinces no-0ne who looks at the matter rationally.

As for the person who writes:
Can we or not remove ourselves from the EU , please can you answer yes or no
- the answer is undoubtedly 'yes'.

And for 'Tom Tyler' what you say may be correct, but if you think UKIP is going to win the next election then you are even more deluded (and drunk) than me who has just consumed a goodly quantity of Oloroso pre-dinner, Verdejo with dinner and Port post-dinner ... hic ;) (And of course our idiot Chancellor sold most of the gold reserves when gold was at a very low level - God that man truly is an idiot! - and soon to be our next PM unless a blessed miracle delivers us from that fate)

Dear Devil, I suggest you (and UKIP members/cultists) actually go READ the Treaty before commenting about it in future - with a bottle or two of fine wine of your choice it really is quite interesting; I did just that when it was first published a few years ago so must be one of the few people on Planet Earth outside the Berlaymont building who actually knows what is in the thing (and as a pro-EU person I concluded we shouldn't ratify and would vote that way if ever a referendum is offered in the UK).

Trixy said...

Some of us have read it. In fact, it was a UKIP MEP who announced in the European Parliament that actually only 20 countries needed to ratify the constitution for it to go ahead. When this was said, all the MEPs and Commissioners howled them down. When the French said 'Non', they suddenly remembered that clause.

Bill, you are very naive if you think that this Constitution is not the most dangerous piece of work ever to threaten the sovereignty of this country. Don't you know, for example, that Europol officers and their families are immune from conviction? Doesn't that stink slightly of a totalitarian state?