Wednesday 2 December 2009

It's not that simple, I'm afraid

It is a commonly-held belief that leaving the European Empire is as simple as repealing the European Communities Act 1972, the law that made us a member of what was then the EEC.

I'm afraid it's not that simple.

We can repeal the European Communities Act 1972 but the Lisbon Treaty still stands under the Vienna Convention on the Law of Treaties and the Lisbon Treaty says that if we wanted to leave, we would have to ask permission from the rest of the European Empire to leave and if they agreed we would have to endure a 2 year "cooling off period" before we got out.

To renounce the Lisbon Treaty without having to get permission and sit out the cooling off period, we would have to argue that articles 50 and/or 51 (corruption and/or coercion of our representative) applied.  To leave early without invoking articles 50 and/or 51, we would have to break international law to get out of our Lisbon Treaty obligations.

It is true that no parliament can bind its successor under English common law but the "Supreme" Court or the EU Court of Justice (as the highest legal authority in England) can rule differently.  It's no longer a case of repealing the European Communities Act 1972, we would have to repeal or amend the Vienna Convention on the Law of Treaties (it's on the statute book) to allow the British government to withdraw unilaterally from the Lisbon Treaty.  Repealing or amending the Vienna Convention on the Law of Treaties would seriously undermine international confidence in the country and set a very dangerous precedent - probably more damaging to the country than the EU, I'm afraid.

I would say we've been stitched up like a kipper but the Spanish have probably got all the kipper quota under the Common Fisheries Policy.


Tom Paine said...

This is simply wrong. Parliament is sovereign. It can make it illegal (as a matter of English Law, though it would be hard to enforce) to smoke on the streets of Paris. It can make a man into a woman (and has). It is perfectly capable of repealing the European Communities Act and repudiating the treaty.

"International law" is largely nonsense anyway. There may be courts but there are no bailiffs. The "remedy" they would have for breach of the treaty (if they didn't just whoop with delight that their least enthusiastic member had finally left) is military force. I can't see that, can you? They haven't got an army, and the member states would never agree who should send how many troops.

When all the troops in Europe are under central command, THEN you can worry about Parliament's sovereignty. In the meantime, expose the EU for its corruption, its lack of democracy, its unaudited accounts. There's plenty to work with. Overstating the case turns voters off.

wonkotsane said...

Of course Parliament can the ECA but it can't repeal the Lisbon Treaty because it's not an Act of Parliament, it's an international treaty. The law that gives the Lisbon Treaty legal force is the Vienna Convention on the Law of Treaties.

You're right in saying that there are no bailiffs for the International Court of Justice which adjudicates disputes over international treaties but that doesn't mean there won't be financial implications for refusing to be bound by the obligations contained in the Lisbon Treaty. Any "punishment" would be in the form of sanctions but it's the damage to our international reputation that will do us harm. If the perception is that we can't be trusted, as a nation, to abide by international treaties, that will harm our international standing.

Anoneumouse said...

Don't forget.....If Scotland becomes independent after a referendum, then the UK (the signatory to Lisbon) is no more. The United... of what is left of the Kingdom, can the decide to stay with the EU or withdraw. the EU accounts haven't been signed off for 15 years then we can also withdraw using the provisions of Article 61 of the Vienna Convention on the Law of Treaties

Article 61 Supervening impossibility of performance

A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.

15 years of non compliance feels fairly permanent to me.

Anonymous said...

very good post. This situation is really scary especially as the EU has its own military force. I've seen people on the news referred to as EU navy spokesman for e.g.
But voting to leave the EU would at least be the first step in a long and arduous journey.

Anonymous said...

A fascinating discussion. It would be useful to have access to a constitutional lawyer.

There are surely loopholes all over the place - in UK, international and EU law.

Nick Chance said...

See the Constitution clarified here:-

nick chance said...

We simply leave. And immediately stop paying th 40 billion quid every year!
See more about the Constitution position:-

Steve Halden said...


You are totally wrong on this one. No parliament can bind its successor.

Just remove the Lisbon Treaty by an act of the British parliament.

A new parliament can cancel treaties made by the previous parliament.

It would be more tricky if we were in the Euro currency.

wonkotsane said...

Right, I'll address the points raised one by one because there's some fundamental misunderstandings here.

Anonemouse, when Scotland becomes independent, what is left of the UK will continue to be an EU member as successor state. If the UK breaks up then one country will be successor state. It will probably be England. All treaties will continue with the successor state taking the place of the UK.

Steve, you're right that under English common law no parliament can bind its successor. However, the common law is based on old laws, proclamations and precedent. The concept that no parliament can bind its successor applies equally to 800 year old laws such as Magna Carta. Of course the British government can pass a law to rescind the Lisbon Treaty. It could be done one of two ways: either it could repeal the Lisbon Treaty unilaterally and in defiance of international law or it could amend or repeal the Vienna Convention on the Law of Treaties. Do we want to be the first county in the world to say our signature on a treaty is worthless?

Anoneumouse said...

Vienna Convention on the Law of Treaties Article 73 - Cases of State succession, State responsibility

The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States

Anoneumouse said... should also be noted that that:... Portugal, France, Ireland, Luxembourg, Malta and Romania are not signatories to Vienna Convention on the Law of Treaties.

So it will be difficult for the European Union as a whole to cite the provisions of Vienna as justification as a legitimate international tool with regards to the Lisbon Treaty when some of the 27 don't even subscribe to established international agreements

Animal Magic said...


If what you say is true and I am interpreting it correctly then we are damned anyway. Armed insurrection would we more damaging to our international reputation then rescinding a treaty in defiance of the Vienna Convention so keep right on pushing for the latter, because as sure as eggs is eggs the former will be the end result otherwise.

Steve Halden said...


If you are talking about legallity of treaties. Is the Lisbon Treaty legal when Britain was promised a referendum by all the political parties in 2005.

This promise was not kept.

So is it a legal treaty?


Britain has been robbed of its sovereighty, by the ruling elite of the three major parties.