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.
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.
Sentiment about a Brexit deal fluctuates wildly almost by the hour. Whatever the current state of speculation, we surely have to prepare ourselves for what happens if Chequers falls over.
I know this is anathema to many Brexiteers. But my personal view is that while No Deal would likely be fine in the long run, in the short term it would be an embarrassing economic fiasco. The consumer story from hell. It would be to Brexit what Gerald Ratner was to cut-price jewellery.
Instead of going down that risky route, I want to ask BrexitCentral readers to consider falling back on the UK’s membership of the European Economic Area. This is the so-called “Norway then Canada” or “Norway for Now” strategy advocated by myself, Nick Boles MP and others.
Please hear me out. It is quite possible that neither Chequers, nor “No Deal” nor trading on World Trade Organisation terms, nor a second referendum will pass in Parliament. In which case, the European Economic Area will be the only thing left on the table. Should we not seize it?
Far from reducing Britain to a “fax democracy”, where we have to pay huge sums into the EU and yet have no say over the rules and regulations passed in Brussels, the EEA is a commercial treaty between sovereign nations and could be a good resting point, outside the EU, the Common Agricultural Policy, the Common Fisheries Policy and the jurisdiction of the European Court of Justice – but with useful legal and economic options. We would effectively be members of the Single Market, but with sovereign protections.
George Yarrow, the Oxford professor who is the intellectual godfather of the strategy, also estimates that our payments to the EU – which would be limited to participating in relevant programmes – would fall from around £9.5bn to £1.5bn.
What is more, we are already contracting parties to the EEA. It is not true, as some have asserted, that we are leaving by virtue of having given notice under Article 50 to leave the EU. The EEA is a separate treaty, which we have signed on our own right, and has its own withdrawal arrangements. If we want to make the EEA treaty operative, all we have to do is to apply to the related European Free Trade Association (EFTA). This is the other “governance pillar” to the EEA.
There is not much the EU could do to stop us exercising our treaty rights without falling foul of a higher law, the 1969 Vienna Convention on the Law of Treaties. Don’t take my word for it. Take the word of Sir Richard Aikens, a former appeal court judge, on the Briefings for Brexit website. If the EU cut up rough, we could take them to the International Court of Justice (ICJ).
As for the infamous Irish backstop, the EEA would put in place the legal structure to make the technical border solution suggested by David Davis work. As we would be members of the Single Market, it would anyway be unnecessary.
On any measure, the EEA is also superior to the proposed transition arrangements. Inside the EEA we would have decision-shaping rights, and also the right to adapt and veto new legislation. We would, anyway, only be in the Single Market which accounts for just 28% of EU legislation.
If, while in the EEA, there was a dispute with the EU, it would be adjudicated by the EFTA Court, on which we would have two out of five judges. Contrary to myth, it is not bound by the ECJ. They do have to develop a homogenous area of law together but frequently the EFTA Court has disagreed with the ECJ.
Nor is it true that we would not be able to control freedom of movement. The EEA Treaty focuses in freedom of movement of workers and includes various measures to impose limits and restrictions, including an emergency break (as used by Liechtenstein). There is no common citizenship and British passports would be back.
Let’s be honest. It isn’t perfect. And it seems to me the biggest risk, which some Brexiteers have already pointed out, is we get stuck. Like Income Tax (introduced temporarily in 1798, it remains with us) the EEA might perpetuate itself. Some have called for a hard legislative commitment to leave before 2021.
However, I would contend that is a glass half empty way of looking at the EEA treaty. The exit mechanism, giving one year’s notice under Article 127, is much more permissive than the Article 50 process. Rather than put a hard stop on our departure date, which creates another cliff edge against UK interests and upsets the Norwegians, we should commit to a review and a break clause to be voted on by Parliament. If it did not work, we could leave to join a Canada-style free trade agreement. And in the meantime it might evolve into a congenial home for us.
The question to which the EEA is the answer is clear. So let me repeat it. What happens if Chequers falls over and the other options are blocked too? It is hard to see any other realistic, legally deliverable alternative. I urge Brexiteers not to rule it out.
The post The ‘Norway for now’ option is far from perfect, but Brexiteers should consider its merits appeared first on BrexitCentral.
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