Following the meeting of the EU’s European Council (heads of state) last night, EU President Donald Tusk confirmed that “there will be no negotiations of any kind until the UK formally notifies its intention to withdraw.” He was referring to Article 50 of the Treaty of Lisbon, which London has indicated will not be invoked until October when a new Prime Minister comes in to replace David Cameron. Article 50 is supposed to regulate negotiation for withdrawal.
Speaking to his European Council colleagues earlier that day, Prime Minister Cameron used impassioned language to stress the UK’s commitment to keeping its trade relations with the EU intact. He also said that the modalities of withdrawal will be decided by his successor.
Meanwhile, Boris Johnson, his likely successor and leader of the Brexit movement, wrote an article in The Telegraph two days after the Referendum containing the following intriguing passage:
“The only change – and it will not come in any great rush – is that the UK will extricate itself from the EU’s extraordinary and opaque system of legislation: the vast and growing corpus of law enacted by a European Court of Justice from which there can be no appeal. This will bring not threats, but golden opportunities for this country – to pass laws and set taxes according to the needs of the UK. Yes, the Government will be able to take back democratic control of immigration policy, with a balanced and humane points-based system to suit the needs of business and industry. Yes, there will be a substantial sum of money which we will no longer send to Brussels, but which could be used on priorities such as the NHS. Yes, we will be able to do free trade deals with the growth economies of the world in a way that is currently forbidden.”
Now, suppose that the British Parliament – beginning either now or when the next prime minister takes office – begins to annul all or most EU laws and regulations, including those pertaining to immigration, without the government’s invoking Article 50 of the EU Treaty, and thus without any negotiations with the EU.
What can the EU do about it? The short answer is: Nothing.
The EU Treaty has no provisions for expelling a member state. There is no legal way in which the EU can expel the UK if the latter decides totally to ignore that much vaunted acquis communautaire. Legally, the EU can do nothing to expel. Not. A. Thing.
It could, however, theoretically at least, suspend “certain of the rights” of a member state – but if, and only if, certain conditions are met as prescribed in Article 7 of the Treaty. These conditions are:
All the heads of state (except the UK) must unanimously determine that the UK is in “serious and persistent breach of the values referred to in Article 2”.
But before such determination can be made, four fifths of the heads of state (23 out of 28) must agree to make a finding that there is a clear risk that the UK might be in “serious breach” of Article 2.
Moreover, action for such a finding cannot be initiated unless a “reasoned proposal” is made either by one third of the member states, or by the European parliament or by the European Commission.
Now, the “values referred to in Article 2” are: “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” The odds of the EU unanimously declaring that the UK is in violation of these rights are as high as NATO declaring war on the UK, i.e., virtually non-existent. And even if these odds were overcome, the EU could still not expel the UK. It could only “suspend certain of the rights.”
If the UK were to follow the indicated path and dismantle the legal and regulatory burden of acquis communautaire without disturbing its trade relations and without invoking Article 50, it will have demonstrated to all members that the overreaching EU bureaucracy is impotent in the face of determined sovereign action by its member states. The common economic interests of the sovereign European nations can be preserved together with their sovereignty.
Relevant passages from the EU Treaty:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
- On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
- The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.
- Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under this Treaty shall in any case continue to be binding on that State.
- The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.
- The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.