Millions of Brits are hearing a lot recently about Article 50 of the Lisbon Treaty, the “legal” method of withdrawal of a member nation from the European Union.
As soon as the UK government invokes it — by sending a letter to the European Council that the UK plans to leave the EU — the irreversible and rather lengthy process of orderly and good faith (Article 8) departure begins.
But Article 50 is actually something of a red herring when it comes to Brexit, since we could, if we wanted to, regain the bulk of our EU exit overnight and without involving Article 50.
We can do this by tweaking the European Communities Act of 1972, (ECA) which obliges us to adopt certain EU laws automatically, and, more importantly, places EU law above (non-constitutional) UK law whenever the two collide.
The idea behind EU supremacy of law is that agreeing to sign a treaty — and the EU is effectively just one big treaty — carries with it the implication that the signatory nation will implement the treaty’s terms, come what may, short of changing its constitution.
While the ECA contains several other legislative Sections, with respect to the Common Agricultural Policy and European Atomic Energy Community etc, it serves primarily as the lubricant our government applies when sliding EU law into the UK’s legal apparatus.
The parts of the ECA that do that legal work are its Sections 2 and 3.
Section 2(4) and 3(1) give effect to the doctrine of the supremacy of EU law, as interpreted by the [European] Court of Justice, over national law; and where EU law is in doubt requires UK courts to refer the question to the Court of Justice. As a consequence of the rule of construction in section 2(4) all primary legislation enacted by Parliament after the entry into force of the ECA on 1 January 1973 is to be construed by the courts to disapply legislation which is inconsistent with EU aw.
The good thing about the ECA is that it is domestic law, so our own Parliament, which is now under notice that it must take us out of the EU, can amend and even revoke it, if it wants to.
My suggestion is that, while we’re waiting for the Article 50 saga to unwind, the UK Parliament immediately revoke sections 2 and 3 of the ECA, thus negating the now redundant — and cumbersome — supremacy of EU law over UK law.
After all, why would a nation on its way out of the EU need to be bound to EU law?
This change will become vital in the face of what is shaping up to be a full frontal attack on us by our spurned, erstwhile EU “partners”, such as France.
e.g. The mayor of Calais is threatening to flout the long-standing (non-EU) Le Touquet Treaty that stipulates where the border separating the UK and France is drawn, and to maliciously herd thousands of illegal immigrants into Kent. As blatant an act of sour- grape-tasting Gallic spite if ever there was.
If that happens, then the last thing we need is to deal with a legal challenge from the EU that we are flouting some EU law or other by protecting our borders.
By returning UK law to its national supremacy, we free ourselves to more nimbly take the protective and evasive measures we need to, to fend off the EU’s looming assault.
And we protect ourselves from the perniciously pro-EU Vote Leave government, which wants Brexit to fail, and that is leaving our back door wide open to this EU retribution by delaying — probably indefinitely — its triggering of Article 50.
All it takes is a simple vote in the UK Parliament.