The EU cannot expel the UK and any UK government will need parliament’s approval to invoke Article 50

The key question for the timing of a UK exit becomes “Can any UK government invoke Article 50 merely on the strength of an advisory referendum and without the express approval of parliament?” I think not. It may be that merely changing Prime Minister will not create a majority in parliament and then a General Election on the question of Brexit will be needed. Without a government willing to apply for withdrawal, Brexit does not begin.

The core founding members of the EU met yesterday and have issued demands that the UK leave the EU quickly. But the EU bureaucrats and the core founding countries seem terrified of a slow measured process of withdrawal. It is not difficult to see that they are expecting a domino effect and further countries holding referenda about EU membership. No matter what they do referenda in the Netherlands and France are just a matter of time.

But their strident calls yesterday for a quick withdrawal seem to be a knee-jerk reaction. David Cameron and his government cannot now invoke Article 50 (he could theoretically do that but after his resignation speech he would then have to emigrate). Suppose the UK, by October, gets a pro-Brexit Prime Minister. He would have a new cabinet and it is inconceivable that he could invoke Article 50 without first getting that action approved by the UK parliament. That approval will not be so easy. Assume that such approval is forthcoming. The timing of an invocation of Article 50 would then be at the discretion of that new government and that would surely not happen until all member countries had been sounded at the political level (rather than the elite bureaucrats of the EU), as to the conditions of the withdrawal.

The EU bureaucrats can talk as tough as they like, but they know very well that there are no provisions in the EU treaties to expel a member.

Extract from : Withdrawal and expulsion from the EU and EMU. Legal Working Paper Series No 10 / December 2009.

Unlike the Charter of the United Nations (UN), Article 6 of which expressly provides for the possibility of a UN Member being expelled for persistently infringing the principles of the Charter, there is no treaty provision at present for a Member State to be expelled from the EU or EMU. The closest that Community law comes to recognising a right of expulsion is Article 7(2) and (3) TEU, allowing the Council to temporarily suspend some of a Member State’s rights (including its voting rights in the Council) for a ‘serious and persistent breach by a Member State of the principles mentioned in Article 6(1)’ of the EU Treaty. This might be thought of as a preliminary step to the expulsion of a Member State, but it is not the same as its definitive expulsion.

In fact the EU cannot expel a member without effectively negating all its treaties:

A Member State’s expulsion from the EU or EMU would inevitably result in an amendment of the treaties, for which the unanimous consent of all Member States is necessary under Article 48 TEU. Given that a Member State’s expulsion would, by definition, be contrary to the presumed wish of that Member State to continue its membership of the EU, a right of expulsion would be inconceivable, since it would have to entail an unauthorised Treaty amendment, in breach of Article 48 TEU. Besides, it is likely that some Member States would object to the introduction of a right of expulsion in the treaties, coupled with an amendment of Article 48 TEU to make that possible, since this would expose them to the risk of being forced out at some future date. 

In practice I begin to think that a General Election will be needed before Article 50 can be invoked and where the incoming government will need to have been elected to implement a Brexit.


 

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