As the vote on Theresa May’s deal grows near, some people seem to be looking desperately for means of escape from the backstop Protocol – or worse still, persuading themselves that means of escape exist or can be invented which will prove to be a mirage.
The Attorney General’s advice to the Cabinet explained the position with stark clarity. If the UK ratifies the Withdrawal Agreement, we cannot prevent the backstop coming into force, nor escape from it once it is in force, except with the agreement of the EU – and if there is a breakdown in negotiations then it will “endure indefinitely” with no legal route of escape.
Despite the clarity of the advice, some Members of Parliament seem to be convincing themselves – or maybe are being convinced by others – that there could be other routes out of the backstop if only the right amendment is framed in Parliament. It is vital that Parliament should not vote based on a mistaken understanding or wishful thinking about the legal situation. So some of these ideas need to be examined very carefully.
We can get out of the backstop Protocol by arbitration
There is a clause in the Withdrawal Agreement which commits the UK and the EU to use “best endeavours” and “good faith” to agree a future trade treaty which would replace the backstop. 10 Downing Street were publicly arguing that this could be enforced against the EU by arbitration. Conservative Party Chairman Brandon Lewis described the “best endeavours” obligation as a “very high legal bar” in a teleconference call with Conservative Party activists.
But the Attorney General’s advice to Cabinet explains with great clarity why it is “highly unlikely” that the EU would conduct themselves in such a way as to be vulnerable to an adverse arbitration finding. The clause does not require the EU to set aside its own interests or propose terms which the UK would like or find acceptable; “all they would have to do to show good faith would be to consider the UK’s proposals, even if they ultimately rejected them. This could go on repeatedly without such conduct giving rise to bad faith or failure to use best endeavours”.
So the Government and Party machines have been pushing in public legal arguments which the Government’s internal advice reveals they know to be rubbish. It is regrettable that Theresa May’s desperate political struggle to sell her deal to a sceptical Parliament, Party and country has gone beyond the realms of normal political spin and exaggeration into the territory of relying on misrepresentation of the legal consequences of the deal.
Now that this illusion about good faith arbitration has been put to bed by the publication of the Attorney’s advice, it is worrying that credence is apparently being given to other mistaken legal perceptions.
Vienna Convention and fundamental change of circumstances
An amendment to the Government’s motion has been tabled by Sir Edward Leigh. This “notes that the Vienna Convention on the Law of Treaties makes it absolutely clear that a sovereign state can abrogate any part of a treaty with an international body in case of a fundamental change of circumstances since the Treaty was agreed; notes that making the Northern Ireland backstop permanent would constitute such a fundamental change of circumstances; and therefore calls for an assurance from the Government that, if it becomes clear by the end of 2021 that the European Union will not agree to remove the Northern Ireland backstop, the United Kingdom will treat the indefinite continuation of the backstop as a fundamental change of circumstances and will accordingly give notice on 1 January 2022 to terminate the Withdrawal Treaty …”
In fact Article 62 of the Vienna Convention makes it absolutely clear that a fundamental change of circumstances cannot be used to excuse a State from complying with its treaty obligations, except in the most limited and extreme circumstances which certainly do not apply here. If the negotiations between the UK and the EU deadlock in the way envisaged in the Attorney General’s advice, that doesn’t even count as “a change of circumstances”: it is just one possible way in which the terms of the treaty pan out, not a change in circumstances external to the treaty. Even if you call it a change of circumstances, it cannot be relied upon to excuse non-compliance with the treaty because it is “foreseen by the parties” at the time of conclusion of the treaty.
The Attorney General’s advice (rightly) does not even mention this Vienna Convention argument as a possible route out of the deadlock, because it is a complete non-starter. It is a matter of puzzlement and considerable concern that Sir Edward Leigh and his colleagues have somehow been given the impression that a notice of termination could be given on this ground on 1 January 2022 as suggested by the text of their amendment.
Can there be a Parliamentary lock on the UK entering the backstop Protocol?
This suggestion arises from remarks by the Prime Minister on the BBC Today programme on 6th December, and the tabling of an amendment by Sir Hugo Swire and others which is billed as giving Parliament control over the coming into force of the backstop Protocol.
The wording of this amendment is long and involved, but the fundamental problem is that the United Kingdom under the treaty has no “lock” against the backstop coming into force. For international law purposes, Parliament is an organ of the United Kingdom and therefore cannot exercise any greater powers than are allocated to the UK under the treaty.
Confusion is caused on this point by the domestic law doctrine that Parliament can make or unmake any law, including in cases where that would cause the UK to be in breach of its international treaty obligations. But breaching international treaty obligations is a grave matter and it is therefore extremely doubtful if Parliament were given a theoretical right to block the Protocol that it would ever be exercised.
The amendment asks that Parliament be able to approve the commencement of the powers implementing the backstop. Parliament has that power anyway, since an Act of Parliament will be required to give effect to the Protocol inside the United Kingdom. In theory as a matter of UK law, Parliament could refuse to pass that Act. But if the backstop comes into force as a matter of international law, Parliament would have no choice but to legislate and to approve commencement of the powers, unless it were willing to put the UK into overt breach of its obligations under international law.
The amendment also calls for a legal duty on the UK Government “to have an agreed future relationship” or other replacement arrangements for the Protocol one year after it comes into force, and an assurance by the EU that “both parties intend to agree” by that date.
That is an assurance which the EU can easily give, and no doubt will give in a stage-managed and choreographed way, but which is completely meaningless in practice. Saying that they intend to agree does nothing to stop the EU from holding out for terms which are totally unacceptable to the UK, and blaming the failure to reach agreement on the UK’s intransigence in not submitting to their demands. Likewise, a legal duty on the UK Government to agree a future relationship by a certain date is completely meaningless, since it would only be possible to reach an agreement if the EU were to offer acceptable terms.
Unfortunately what this amendment contains is a mixture of legal nonsense in the form of meaningless or unenforceable legal duties and assurances, coupled it would appear with a good dose of wishful thinking or even self-delusion.
The UK has a ‘choice’ about whether to enter the backstop
The Prime Minister claimed in her interview on BBC Radio 4’s Today on 6th December that it was “not automatic” for the backstop to come into effect, and that the UK has a “choice”. This is only true in the sense that the backstop will indeed automatically come into effect, unless the EU is willing to do an acceptable deal with us before the end of the transition period, or unless the transition period is extended.
The limited element of “choice” which the UK has is whether to extend the transition period in order avoid the backstop coming into force for a time. That defers but does not solve the problem of the backstop automatically kicking in, at great cost in terms of money and greater cost in terms of keeping the UK under EU laws in a state of vassalage for a longer period. The UK would have no vote or veto on regulatory changes to EU rules which could cause severe damage to the UK financial services industry, and the risk of this kind of damaging regulatory attack against UK interests would go up and up the longer the transition period is extended.
Even the choice to extend the transition period is not unfettered. Under Article 132, a decision to extend the transition period is by the Joint Committee. This means that the EU and the UK must both agree to the extension within that Committee. Under Art.132(3) that decision must deal with a number of matters including establishing the amount of the UK’s contribution to the EU budget.
That is rather like having an “option” to buy a house which does not specify the price, allowing the seller to charge what it likes if the option is exercised. If the UK were for whatever reason desperate to extend the transition period and so defer (but not avoid) the backstop, the EU would have us completely over a barrel on the financial payments.
The UK now has a “choice” to avoid the backstop, by a very simple means. That is to reject Theresa May’s deal.
The Grieve amendment allows Parliament to take control of Brexit
It has been widely reported in the media that Dominic Grieve’s amendment would allow Parliament to take control of the negotiations with the EU after Theresa May’s deal is rejected, or even “stop Brexit”. This is not the case and these suggestions may be attempts to induce Brexit-supporting MPs to back the deal out of misplaced fears of what a Remain-dominated Parliament might do.
The amendment does not change any law. It simply waives a rule in the Standing Orders of the House of Commons which would prevent amendments being made to motions before the House when the Government reports its future intentions. But a resolution of the House of Commons does not, except where specified by statute or in very special circumstances, have any legal force. It cannot amend any law. It cannot direct the Government in the exercise of its foreign relations powers as a matter of law. Any effect it has in that context is political only.
Leaving on 29th March 2019 without a deal is the default course of action which is now hard-coded into the law. Any alternative route – whether a different deal with the EU, an extension of the Article 50 period, a referendum, or (most radically) a withdrawal of the Article 50 notice – would require the active cooperation of the Government in all cases, and in almost all eventualities the passage of a Bill through both Houses to Royal Assent between now and 29th March 2019.
Therefore Brexit-supporting MPs who do not think that this deal is in the national interest should not be deterred from voting against it by the Grieve amendment, or by implausible claims by the Prime Minister that rejection of her deal might lead to “no Brexit.”
Members of Parliament would be well advised not to accept any assertions about the legalities of the deal which emerge directly or indirectly from the government machine, without first obtaining independent legal advice.
The post Exposed: the legal myths being promoted about the backstop and the Withdrawal Agreement appeared first on BrexitCentral.
The Government is already on the rack over its refusal to publish the legal advice provided on the Brexit deal by Attorney General, Geoffrey Cox, despite a parliamentary motion ordering it to be done.
Cox will make a statement on the matter in the House of Commons later today (Monday 3rd December), during which he will doubtless be questioned about the leak in the Sunday Times of a letter he wrote in which he admitted that the UK would be trapped “indefinitely” in a customs union with the EU if the backstop comes into effect.
But ministers now face further questions as it emerges that a confidential analysis of the Withdrawal Agreement by the House of Commons’ own expert legal team comes to the same conclusion as President Trump – that Theresa May’s Brexit deal would prevent the UK from entering trade deals with countries such as the US.
The bombshell is contained in a 27-page legal note prepared by the House of Commons EU Legislation Team, which is headed by Arnold Ridout, its Counsel for European Legislation. A highly respected specialist in EU Law, he has previously worked for the EC Commission’s Legal Service and advised the European Secretariat of the Cabinet Office and prior to taking up his current role in 2014, he was Deputy Legal Adviser to the House of Lords EU Select Committee.
The note – marked ‘not for general distribution’ and obtained by BrexitCentral – is dated 26th November and states that the UK-EU customs union which would come into effect if the backstop is triggered “would be a practical barrier to the UK entering separate trade agreements on goods with third countries”.
This is in direct contradiction to the Prime Minister who has insisted that her deal will allow the UK to have an entirely independent trade policy. Indeed, she told the House of Commons just last Monday how “for the first time in 40 years, the UK will be able to strike new trade deals and open up new markets for our goods and services”.
The legal note – titled The Withdrawal Agreement: Legal and Governance Aspects – also appears to suggest that the Prime Minister’s claim (also repeated last Monday) that her deal “takes back control of our laws” by ending “the jurisdiction of the European Court of Justice in the UK” with “our laws being made in our Parliament, enforced by our courts” does not entirely stand up to scrutiny.
In its summary of “Continued application of EU law”, the note states:
- EU law will apply during the TIP [transition or implementing period], but essentially without formal UK participation in its making;
- EU law will apply after the TIP to protect the rights of EU citizens in the UK. This could extend for some considerable period.
- EU law also will apply after the TIP in relation to the Separation Issues and the Financial Settlement. Again, this could extend for a considerable period.
- EU law will apply extensively, particularly in Northern Ireland, under the “Backstop” found in the Ireland/Northern Ireland Protocol.
- EU law in relation to goods, turnover taxes, agriculture and fisheries as well as veterinary and phytosanitary rules will apply in the Sovereign Base Areas of Cyprus.
- After the end of the TIP the CJEU will continue to determine the interpretation of EU law applicable under the WA by the mandatory reference procedure from the arbitration panel.
Moreover, if the backstop has been triggered and the UK-EU customs union established, it adds that:
“The UK will conform to specific EU legislation on customs, including with respect to third countries. To provide a ‘level playing-field’ the UK commits to non-regression (from the law as it stands at the end of the TIP) on EU environmental protection, labour and social standards, state aid and competition and state-owned undertakings in respect of administration of tax…. On the UK side of the customs union, in the ‘United Kingdom in respect of Northern Ireland’, specific additional EU legislation applies on customs, certain VAT and excise, and certain technical standards relating to goods”.
Another section in the document which caught my eye concerns what happens when the proposed Joint Committee (of representatives of both the EU and UK) which supervises the Withdrawal Agreement and the backstop cannot reach a consensus on certain issues:
“Both UK and EU are represented on the Joint Committee, so no decision may be made without the UK’s agreement. This may not be the same thing as the two parties having equal power, as the aims of the parties will matter. If the Joint Committee is unable to reach a decision, in some circumstances, that will block next steps. The party that wants those next steps to occur, will then be at a practical disadvantage. By way of example, i) the Joint Committee sets the limits of state aid that can be authorised by the UK for agriculture. If limits are not agreed, state aid may not be authorised.”
In other words, in those circumstances the UK would not be free to set levels of subsidy for UK agriculture, but the EU would remain free to adjust its Common Agricultural Policy however it liked. EU products would therefore have open access to the UK market via the customs union, while Brussels could stop us subsidising agriculture at all unless it was agreed in the Joint Committee.
And given that the proceedings of the Joint Committee will be confidential, the document concludes that “the absence of transparency would impact on any proposal for Parliamentary scrutiny of the UK participation in the working of the JC”.
Meanwhile, many readers will have concerns about the potential for the UK being disadvantaged over the working of the arbitration panel appointed for the purposes of dispute resolution. It will comprise five people: two nominated by each party and a chairperson from a list agreed by both, and also be encouraged to try to take decisions by consensus, but can decide by majority.
As the legal note explains:
“This raises the prospect of a decision adverse to the UK on the view of the EU appointed panel members and the jointly appointed chairperson outvoting the view of the UK appointed panel members.”
Reacting to the contents of the document, Conservative MP Marcus Fysh, who sits on the International Trade Select Committee and European Scrutiny Committee, told BrexitCentral:
“This document identifies and explains many of the very serious legal problems for the UK that would emerge from the Prime Minister’s proposed Withdrawal Agreement, should it be approved. It is wishful thinking and irresponsible to accept the Government’s spin of this damaging legal reality, or to think it could be used as a basis for successful further negotiation. I don’t believe any MP in possession of these facts could in good conscience ignore them and support the Withdrawal Agreement.
“The EU and UK have a great future as friends, but this is not the way to achieve it. Let’s waste no more time, prepare for all eventualities, and work constructively for an advanced but regular Free Trade Agreement which respects the independence and integrity of our jurisdictions while making trade and community relations smooth, effective and efficient. We have set out how to do this, contrary to the Government’s attempt to say otherwise, and there is no reason a plan and schedule for ratification of such an agreement cannot be agreed by the end of March so conditions remain smooth from the end of March until that happens. That is the way to preserve the faith the people of the UK have in their politics, and we need a Government that will ask for it.”
You can view the leaked document for yourself below or by clicking here to see it as a pdf.
In my recent paper for Politeia, I show that, since its inception, the European Court of Justice (ECJ) has never been an impartial court in disputes between the EU and its Member States or indeed between the EU institutions and other bodies or international entities. In these circumstances it is hard to believe anyone could consent to continued post-Brexit ECJ jurisdiction: why would the ECJ treat the UK any better or at all fairly once the UK is no longer a Member State?
The ECJ’s pro-Union legal interpretation is rooted in its own conception of its role as an EU institution committed to further integration which is brought to bear on its distinctive ultra-flexible approach to treaty interpretation.
The general rules of treaty interpretation are set out in Articles 31 and 32 of the Vienna Convention on the Laws of Treaties (“VCLT”).
The Vienna Convention is not free from uncertainty and it does refer to the context and the objective as aids to textual interpretation. However, Art 31 VCLT emphasises the crucial importance of the ordinary meaning of the treaty text, and that the words of the text must be interpreted in good faith. If this means anything at all, it must mean that purposes cannot simply be read into the text and that the text itself is the primary guide to meaning and purpose. Only if there is real uncertainty, should other interpretative criteria be applied.
The EU is not a signatory to the VCLT. However, almost all its Member States have signed the Convention. Indirectly, therefore, the EU and the ECJ too are under an obligation to follow its provisions.
The ECJ has summarised its interpretative approach in Merck v Hauptzollamt Hamburg-Jonas as follows:
…in interpreting a provision of [Union] law it is necessary to consider not only its wording, but also the context in which it occurs and the objects of the rules of which it is part.
At first sight the ECJ’s own position appears to echo Art. 31 VCLT.
But the reality is very different. The ECJ, to my knowledge, has mentioned the VCLT only twice in the tens of thousands of judgments it has handed down over the last seventy years, but on at least one of those occasions went on simply to ignore the Convention’s approach.
First, although the ECJ frequently refers to the words used in the legal instrument it interprets, this in itself establishes little. The ECJ cites the text in a perfunctory manner and without proper textual analysis. Crucially, compared to many other courts, the ECJ is more likely to give priority to purposive criteria over linguistic criteria.
Second, the ECJ extremely rarely uses historical arguments.
Third, amongst the purposes the ECJ relies on, it liberally includes meta-teleological criteria. Meta-teleological arguments refer to general ‘umbrella purposes’ which may not even be written into the treaty. For example, the ECJ has referred to the ‘spirit of the Treaties’ in dozens of cases. The spirit has an established place in Hegelian philosophy – legal certainty, however, spiritual guidance promotes not.
Fourth, EU law has no doctrine of the ratio decidendi. Any ECJ decision, and indeed any statement on the law, may effectively become a precedent. The importance of de facto precedents in the ECJ’s argumentation is illustrated by the fact that there is now hardly any case in which the ECJ does not refer to at least one previous decision.
In referring back to its own case law, the ECJ implicitly also relies on meta-teleological considerations and the body of precedents itself acquires a communautaire — or pro-Union — flavour. Over time the Treaties in this manner acquired a distinctly more integrationist flavour than their wording suggests. Moreover, the appeal to previous decisions enhances judicial credibility in the sense it suggests judicial objectivity and creates the impression that the court did not exercise a choice but instead reached its decision subject to the constraints of legal consistency and certainty. The appeal to precedent also lends later decisions the aura of legal objectivity, simply because in analysing a case not every relevant previous case is excavated and subjected to legal analysis.
Fifth, The ECJ’s variable or cumulative approach, combined with its meta-teleological dimension, gives its decision-making a distinctive pro-Union communautaire tendency: a predisposition, in other words, to resolve legal uncertainty in favour of further integration. Reliance on precedents then solidifies and reinforces the ECJ’s communautaire leaning.
Finally, the ECJ operates in an extremely permissive political and judicial environment. ECJ judgments can be overruled only by the ECJ itself or by unanimous treaty amendment by the Member States. In these circumstances general acceptance throughout the EU of the ECJ’s activist and integrationist approach to treaty interpretation means that the ECJ acquires a de facto power of amending and extending the EU’s quasi-constitution.
The ECJ’s communautaire predisposition tends to be irrelevant in most run-of-the-mill cases, which concern the application of more or less clear, detailed and technical provisions. Examples of these are agriculture, customs union, and tariff cases.
By contrast, the areas of substantive law where the Court’s integrationism has been most evident are the internal market, free movement of persons, asylum and the euro rescue cases and those concerning the relationship of EU law to national law on the one hand and international law on the other.
Most relevant here is the Court’s pro-Union decision-making in the field of international agreements, about which the following points should be made.
First, the ECJ has ensured the supremacy of EU law over potentially conflicting international law by transposing large chunks of international law and then asserting its own jurisdiction to interpret and give effect to international law on its terms – an approach which may be called ‘the strategy of incorporation’. This has allowed the ECJ either to give effect to international law when it suits it – for example, to extend its own jurisdiction to review national law for compliance with obligations under international treaty and customary law – or to circumvent, qualify or ‘adapt’ the effects of international law on the EU legal order by interpreting EU law ‘autonomously’, i.e. without reference to precedents or guidance laid down by other international courts.
Second, whilst the ECJ has not questioned that international agreements entered into by the EU or so-called mixed agreements may be used by individuals to challenge national law, it has generally adopted a ‘dualist’ approach and resisted the direct effect of provisions of international agreements in actions challenging the legality of EU legal acts.
Third, in the case of Van Parys the ECJ went so far as to deny binding status to WTO dispute settlement body decisions in EU law.
Fourth, the ECJ has jealously guarded its own autonomy and judicial pre-eminence over the interpretation of every aspect of EU law both in relation to the extension of EU law to the EEA Agreement (Opinion 1/91) and in its more recent Opinion 2/13 concerning the accession of the European Union to the ECHR. More recently, it has done so even in relation to arbitration clauses governing bilateral investment treaties between Member States, which the Court declared invalid in the recent Achmea decision.
Fifth, it is thus all the more surprising that in the area of free trade agreements between the EU and other countries the ECJ recently adopted a more relaxed approach to safeguarding its own jurisdiction. In Opinion 2/15 concerning the Free Trade Agreement (FTA) between the European Union and the Republic of Singapore, the Court declared binding dispute settlement by a bilateral arbitration panel procedure compatible with EU law.
Let me sum up:
The EU’s insistence that a free trade agreement requires final dispute resolution by the ECJ is spurious and at variance with the ECJ’s case law regarding the legality of, for example, the EU-Singapore trade agreement.
The UK has nevertheless accepted ECJ supervision in the proposed Agreement. Apart from the fact that it is degrading for a sovereign nation to submit itself in bilateral treaties to the jurisdiction of the domestic court of the other side, I hope I have demonstrated that the ECJ will never be an impartial arbiter in disputes between the EU and other parties – including former members. It is not even impartial in respect of EU members. How may it be assumed that post-Brexit the ECJ would accord the UK even the very minimal respect it currently pays EU member states? Whatever the British people may have had within their contemplation when they voted for Brexit in June 2016, it surely included the conviction that the UK should not remain subject to an imperial foreign court.
Within the draft Withdrawal Agreement (“WA”), 175 pages consists of a Protocol whose formal title is “Protocol on Ireland/Northern Ireland”, together with 10 detailed Annexes which form part of it. Informally it is called the Northern Irish “backstop” protocol. Neither its formal nor its informal title really describes it. It should be called “the whole UK permanent lock-in protocol with extra lock-in for Northern Ireland.”
Most of its provisions do not come into force until the end of the transition period. However, at that point and in the absence of an agreement between the UK and the EU to the contrary, the whole Protocol will come into force and will require the whole of the UK to stay in a Customs Union with the EU – a Customs Union in which the UK has no vote on the tariffs to be charged, or on with whom to do or not do trade deals, but will be obliged to follow the EU’s tariffs at all times. Further, it obliges the UK not to deviate from EU rules on a wide range of so-called “level playing field” areas of policy, including environment, workplace rights, state aids and competition law.
Secondly, it will require Northern Ireland (unlike Great Britain) to be subject to a large number of EU Single Market regulations and directives, and customs and tax rules.
Finally – and this is the most important point – the UK has no right under the treaty either to prevent the Protocol coming into effect or, once it is in force, to leave it, unless the EU agrees. In this regard, the Protocol is unique amongst trade agreements, which invariably contain clauses allowing each party the right to withdraw on notice.
The Protocol can only be stopped from coming into force if the EU agrees with the UK to replace it before the end of the transition period with a trade agreement. If the Protocol comes into force, the UK cannot exit from it without a “joint” decision (meaning the EU has a veto) in the ‘joint committee’ (article 20 of the Protocol). This absence of a clause allowing withdrawal on notice is unprecedented in the EU’s own trade agreements with non-member countries. Under international law, future governments and Parliaments would be locked in and be bound by the treaty concluded by this government.
Because of this lock-in, the Protocol would not operate just as a ”backstop”. In negotiations on the future trade treaty, the EU would have no incentive to offer the UK terms which are any better than the Protocol – since if the UK fails to agree to the EU’s demands, the Protocol automatically comes into effect and lasts indefinitely, giving the EU tariff-free access for its £95bn trade surplus in goods and keeping up the EU’s external tariff wall around the UK market as a barrier against competing goods from non-EU countries.
The Protocol will require the whole UK to remain in a Customs Union at the end of the transition unless there is agreement between the UK and the EU to the contrary.
It will require Northern Ireland (unlike Great Britain) to be subject to a large number of EU single market regulations and directives, and customs and tax rules.
Under the backstop, the UK would have to follow the EU’s external trade policy and apply EU import tariffs. This would kill stone dead the chances of the UK following an independent trade policy after Brexit. We would not be able to offer tariff concessions to free trade partners, so they would have no incentive to offer us concessions on say services which we would want to export to them.
Further, it will render the theoretical right to negotiate third country trade agreements during the transition period totally meaningless. Since we will be unable to tell prospective free trade partners when we will be free to implement such an agreement, or indeed whether we will ever be free to do so at all, they will have no interest in spending time and effort on serious negotiations with us.
This subordinate relationship also applies to so-called trade remedies, where the EU takes action to impose anti-dumping or countervailing duties under WTO rules on non-EU countries. The EU will take these actions in order to protect its own interests, regardless of any negative impacts on UK consumers, and the UK will be obliged to comply with those measures by imposing higher tariffs – even where this is contrary to the UK’s interests. Under Art.4(3) of Annex 2, we will have merely the right to be consulted.
Where dumping affects UK industries, the UK will have no right to take anti-dumping action to protect its own interests. The UK would be totally dependent on the EU to take action. If UK industries but no EU industries are affected, why should we expect the EU to do that?
It is quite extraordinary for one of the leading trading nations of the world to be a complete rule taker on its trade policy in this way. This one-sided Customs Union arrangement would destroy the ability of the UK to take advantage of the freedom brought by Brexit to forge a new independent trade policy and would shackle us permanently to being a dependency of the EU.
The above is Martin Howe QC’s summary of the conclusions of a longer article published by Lawyers for Britain. He will be following up soon with a study of the constitutional consequences of the Northern Ireland Protocol and the way it treats Northern Ireland separately from Great Britain.
The post The Withdrawal Agreement’s Northern Ireland Protocol is neither a “backstop” nor temporary appeared first on BrexitCentral.
On Friday Michel Barnier told a meeting of EU27 ambassadors the EU has a “duty” to stand firm on its key Brexit red lines and not compromise on the draft Withdrawal Agreement. However, what seems to have escaped M. Barnier’s attention – and that is the most generous way of putting it – is that some of those red lines are serious breaches of international human rights conventions and could even lead to an investigation by the UN Human Rights Committee.
The most important area where the draft text breaches human rights conventions to which all EU member states have signed up is the requirement that the UK cannot leave the customs backstop without the permission of the EU. There is is a further potential breach over the division of the UK created by the EU insistence that Northern Ireland be subjected to additional EU regulations over which they will have no say.
Specifically, the draft Withdrawal Agreement breaches the International Covenant on Civil and Political Rights (ICCPR). The important thing about the ICCPR is that unlike many other human rights conventions, such as the Universal Declaration of Human Rights, the ICCPR has legal teeth because countries ratifying are required to give it legal status in their country. That means that any breach of it can be subject to judicial review. The very first article of the ICCPR states:
- All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
- All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
- The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
Please note that first section:
All peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic… development.
Requiring the UK to sign a treaty taking away that right to determine our own political and economic development i.e. leave the backstop, without the EU’s permission, is a clear violation of Article 1 of the ICCPR.
Now, the EU actually makes great play of the importance of the ICCPR; in fact, it is a major tool of EU foreign policy. Through the EU’s Generalised Scheme of Preference (GSP), it grants a number of developing countries zero tariff or low tariff access to the EU Single Market – providing that they actively comply with a number of international human rights conventions, among which the ICCPR is prominent.
Compliance requires not simply saying the right thing, but also doing the right thing. For example, in February this year there was serious concern amongst business leaders in Pakistan that they could lose GSP status precisely because of Pakistan’s non-compliance with aspects of the International Covenant on Civil and Political Rights. It is therefore an extraordinary and shameless act of double hypocrisy for the EU to breach the ICCPR in such a blatant way.
There are actually other international human rights conventions which the EU has potentially breached in the draft Withdrawal Agreement as well. For example, Article 73 of the UN Charter which relates to countries which do not have ‘a full measure of self-government’ i.e. where a foreign power exercises a measure of political or economic control, requires that foreign power to recognise ‘the principle that the interests of the inhabitants of these territories are paramount’, while the UN convention relating to such territories specifically states that:
Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
However, returning to the International Covenant on Civil and Political Rights (ICCPR), it is clear that the draft Withdrawal Agreement is a very blatant breach of the ICCPR, which is legally enforceable in any country which has ratified it – as all EU members states have.
It is therefore possible for anyone to apply for judicial review of the Withdrawal Agreement. However, even if a request for judicial review were refused – because all 28 EU member states have ratified not just the ICCPR itself, but also the First Optional Protocol, a referral can be made directly to the UN Human Rights Committee by any
individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.
As all EU member states are required to collectively agree the Withdrawal Agreement, they become liable when they do so.
I wonder how the people of Belgium or Germany – or for that matter Ireland – will feel about being investigated by the UN Human Rights Committee because of a serious breach of an international human rights convention by the European Union as it sought to retain control over an independent sovereign nation after it left the EU?
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My biggest beef with the European Union has always been the way it stifles consumer-friendly innovation in the interests of incumbent businesses and organisations. Today’s victory for Sir James Dyson at the European General Court lays bare an especially shocking example.
Dyson’s case, which has taken five years in the courts, reveals just how corrupt and crony-capitalist the European Union has become. It is no surprise that Sir James was and is a big supporter of Britain leaving the EU. Essentially, the rules have been bent to allow German manufacturers to deceive customers about the performance of their vacuum cleaners, in a manner uncannily similar to – but even worse than — the way mostly German car manufacturers deceived customers about the emissions from diesel vehicles.
In today’s decision – a very rare case in which the EU courts have had to back down — the EU’s General Court said it would uphold Dyson’s claim and that “tests of a vacuum cleaner’s energy efficiency carried out with an empty receptacle do not reflect conditions as close as possible to actual conditions of use”. Yes, you read that right: until now, in Europe only, vacuum cleaners were tested without dust, the better to suit German manufacturers.
The case concerns labels on vacuum cleaners stating how much energy they use. The Energy Label for corded vacuum cleaners is mandated by the EU’s Ecodesign and Energy Labelling regulations. The purpose is to encourage energy efficiency in such products and the job of the Energy Label is to make sure that consumers get clear information about product performance. Dyson was the first manufacturer to support limits on the power consumption of motors in vacuums. Why wouldn’t it be: its Cyclone product is very efficient?
The Energy Label was introduced throughout the EU in September 2014 and updated in September 2017. It covers overall energy rating, rated A to G, with A being best and G being worst; annual energy usage: in kWh; the amount of dust in air emitted from the machine’s exhaust (A to G); the noise level in decibels; how much dust the machine picks up from carpets (A to G); and how much dust the machine picks up from hard floors and crevices (A to G).
All very reasonable, until you find that the European Commission stipulated that under these regulations, vacuum cleaners are tested empty and with no dust. This flies in the face of the methods developed by the International Electrotechnical Commission (IEC), an international standards organization, which have been adopted by consumer test bodies and manufacturers worldwide. It is out of line with the way other appliances, such as washing machines, ovens and dishwashers are tested “loaded”, not empty.
Why would the EC have made this strange decision? Because the big German manufacturers make vacuum cleaners with bags. Sir James Dyson invented ones without bags. And the bag ones gradually become clogged with dust so they have to use more power or lose suction. The decision to test them empty plainly benefits the bag-cleaners. Behind the scenes the German manufacturers lobbied for this outcome.
The result of this is that you can buy a bag cleaner with an A rating, take it home and find that most of the time it performs like a G-rated cleaner.
So in 2013 Dyson challenged the labelling rules in the EU General Court, arguing that, to reflect real-life experience, the performance of a vacuum cleaner should be tested in real-world conditions, and that might actually include – God forbid – encountering dust. In November 2015, the EU General Court dismissed Dyson’s claims saying that dust-loaded testing is not reliable or “reproducible” and therefore could not be adopted, despite the fact that the international standard does use dust. Nonsense: in its labs and in houses, Dyson tests its own machines using real dust, fluff grit and debris including dog biscuits and Cheerio cereals – of both the European and the American kind.
Dyson appealed to the European Court of Justice in January 2016 and on 11 May 2017 it won. The court said that to reach the conclusion it had, the General Court “distorted the facts”, “ignored their own law”, “had ignored Dyson’s evidence” and had “failed to comply with its duty to give reasons”. The ECJ said that the test must adopt, where technically possible, “a method of calculation which makes it possible to measure the energy performance of vacuum cleaners in conditions as close as possible to actual conditions of use”. The case was passed back to the General Court, which was given time to reconsider its verdict at leisure. Today, after eighteen months of cogitation (what do judges do all day?), and with nowhere to go, the court capitulated.
Dyson has this to say about the case: “the EU label flagrantly discriminated against a specific technology – Dyson’s patented cyclone. This benefited traditional, predominantly German, manufacturers who lobbied senior Commission officials. Some manufacturers have actively exploited the regulation by using low motor power when in the test state, but then using technology to increase motor power automatically when the machine fills with dust – thus appearing more efficient. This defeat software allows them to circumvent the spirit of the regulation, which the European Court considers to be acceptable because it complies with the letter of the law.”
How much more shocking does the crony-capitalist corruption at the heart of Brussels have to get before people rebel against this sort of thing? They did already? Ah yes, Brexit, true Brexit, cannot come soon enough.
The post Dyson’s five-year legal battle reveals the crony capitalist corruption at the heart of the EU appeared first on BrexitCentral.
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