Doubts have recently been expressed about the legality under EU laws of the backstop in the Withdrawal Agreement (WA). Could this be the ‘tip of the legal iceberg’ and much more of the Agreement be unlawful or illegal?
Significantly, the Withdrawal Agreement does not appear to have been independently reviewed for veracity, fitness for purpose and compliance with the treaties and laws of the EU, nor with international law.
Consequently, the extent of any illegality is unknown. But as the WA is such a complex, politically-charged document with potentially wide-ranging ramifications, it would be reasonable to have cautionary misgivings.
The Withdrawal Agreement appears to conflict with EU Treaties and law
Article 8 of the Consolidated Treaties of the EU states:
- The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.
- For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation.
The above can be seen as complementary to other treaty obligations relating to human rights, in particular those concerning commitments to full employment (Article 3 (3)). So how well has the EU done in complying with these principled treaty requirements for peace, prosperity and political stability?
Any reasonable person would likely conclude that the EU’s behaviour in ‘negotiating’ the Withdrawal Agreement was more akin to that of a hostile power, determined to permanently subjugate a friendly neighbour into a powerless vassal state. Perhaps that was the intention all along – ‘might is right’?
There are plenty of reports, including from British ministers, that at least some of the EU officials negotiating the draft Withdrawal Agreement were acting in bad faith, seeking to ‘punish’ the UK for leaving rather than seeking a cooperative and mutually beneficial agreement.
The Backstop and other WA content breaches Article 50
There is also evidence that the scope of negotiations went far beyond the intentions of Article 50. Ambassador (rtd) Leonidas Chrysanthopoulos, Former Secretary General of the Black Sea Economic Cooperation Organization, was on the inside of the negotiations to include Article 50 in the Lisbon Treaty. He has revealed that Article 50 was only intended to cover financial arrangements for a Member State leaving the EU. The rest of the Withdrawal Agreement, including the backstop, is outside the intended Article 50 scope.
Article 50 of the Consolidated Treaties of the EU states:
- A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218.
At most, the backstop could have been included, as non-binding, in the Political Declaration which accompanies the Withdrawal Agreement. This applies to other content of the Withdrawal Agreement which covers arrangements for after the UK’s legal departure from the EU. This additional complex, confusing, ambiguous and unworkable content can only be present to pressurise us; to exact a heavy ‘price’ for leaving; and to coerce others into not leaving the EU.
Keeping Us in the Dark
The Withdrawal Agreement includes extensive cross-references to EU legislation, apparently without a clear order of precedence if there is a conflict or contradiction. The full ramifications are thus uncertain. This is similar to secret clauses in treaties, with the added problems that the EU can continue to add more potentially unlawful requirements. And of course, once the backstop is triggered, the UK cannot unilaterally leave.
In addition to the lack of an independent review of the Withdrawal Agreement’s legality, there does not appear to have been any risk or impact assessment. Such assessments would normally include potential mitigation measures. Impact assessments are required by the European Commission’s own guidelines for developing new laws. If such assessments had been carried out and acted upon, the Withdrawal Agreement might look very different.
Independent and Authoritative Review of the WA
Obviously, even at this late stage, the Withdrawal Agreement should be independently, authoritatively and transparently reviewed for veracity, fitness for purpose and compliance with the treaties and laws of the EU, and with international law. Subsequently the WA should be redrawn to incorporate the conclusions of the review.
However, given the EU’s track record of ignoring its own laws when it suits it this is unlikely. During any review and redrafting some sort of ‘temporary’ measures would be required in order to comply with the Consolidated Treaties of the EU. To be lawful, these measures (possibly using legal fictions) would need to be intended to maintain peace, prosperity (including full employment), and political stability.
So, if the EU were to lawfully comply with its own treaties and laws, the UK could be enjoying frictionless trade as at present, minimum disruption in leaving the EU on 29th March 2019, and be asserting its national sovereignty, following a democratic political agenda as a free country.
I agree with the illegality of the whole EU approach.. good neighbours etc.
EG why are we excluded from the EU No-deal plan which we have paid for ?
Brexit is in such a muddle that I ask rhetorically if there is an argument for cancelling it, staying in and waiting for the next GE, whenever that is. If UKIP or any other anti EU party could get its act together we could tell the Tories exactly what we think of them through the ballot box and declare independence immediately after the election. No ‘divorce payment’, no transition, no ECJ, just a British gunship watching out for European fishermen.
In the meantime, we’d be punished for our temerity and given such a raw deal that even the Remainers would vote for quitting.
Either that or the whole EU edifice would come crashing down.
When the law is mentioned in the comments, what law is being alluded to? Note that under the British Constitution, yes we do have one, being made servant to a foreign power is illegal in the first place; something our politicians refuse to accept or claim ignorance thereof.
“And I do declare that no foreign prince,person, prelate, state or potentate hath or ought to have jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm. So help me God.” Bill of Rights 1689.
The Eu is modelled on the old USSR.
THANK YOU, SINCERELY, NIGEL MOORE ! So now we have an insight into the legal aspect of Leaving the EU ! Fascinating to all who are making their way by the arguments and enforcements of EU Law and Treaties. Thank you Nigel !
Now take note of my response, from this little educated old boy in Northampton ! It is my reasonable expectation that EU Laws will be kept to.- I would expect nothing less, as the UK of GB is not a Law Breaker. HOWEVER, we are Leaving, ( at some point ), and we have our own High Courts ! Knowing little of International Law, I am sure that no Law exists for a Nation State to be forever held, or shackled to Foreign Law Courts.- This item is covered within EU’s Article 50 anyway !
Problems with EU Law, is made entirely by our own Government, and our ‘Unique and Interesting’ Prime Minister, who has been tirelessly taking on board the wishes of the EU ! Now it is a possibility that we will have a new PM in the near future. ( I would recommend sooner rather than later ) ! A new PM could rehearse saying, ‘It’s your problem’ to the EU, certainly in the matter of the boarder for Northern Ireland.- If the EU wants one, let them enforce The Republic to make one, after all Ireland only, will be a member of the EU.- ( Since the Irish Republic don’t want a boarder either, this might be fun to watch ) !
Trade has its own Laws, both written and just understood, and in some ways it could be said that it is a Law unto itself, with legal footwork used. If something is made, and a customer is ready and waiting to buy, although taxes, duties and additions can be thrown at it, the Trade will take place.- It’s inevitable ! ….. Should the EU push their luck with Ireland, then there is a distinct possibility that we could be told of Irexit ! Before that is even thought about, the Irish will have to evaluate what it gains from EU and what its membership costs, either way its their problem and not ours ! ….. Air and Sea Travel are covered by International Laws, but if the EU wishes to make problems for us, then the drop in revenue to the member states will make big problems for the EU, but no doubt they have thought about that.- ( My attempt at humour, sorry ) !
Doesn’t the Lisbon Treaty ordain that the London Stock Exchange will be closed and transferred to Frankfurt in 2020?
Those clever little boys and girls working in the City who thought it cool to vote remain are going to be surprised, aren’t they?
You all seem to have missed the point that the refererendum itself was not legal as Vote Leave was illegally funded, on top of which the vote for Brexit was supported by far less than 50% of the voting population …. on top of which voting for something with no plan was sensible was it?
There is an EU Exit Plan on Gerard Batten’s website, plus preparations have been made for WTO exit, although Project Fear ignore these. Is it sensible to while remain an EU state while the UN global compact for Migration loses us all control over the number of new immigrants we must take, house and pay for when our infrastructure is already overstretched to breaking? (this WILL be legally binding and enforced by EU on all member states whether they’ve signed up or not). Is it sensible to stay shackled to the EU fiscal titanic and go down with it financially? Is it sensible to give an alien power carte blanche to do as they damn well like with us without us having any say, for starters tax us without representation, invade us with an army we’ve largely paid for, cripple our livelihoods? Or is it more sensible to get the hell out while we still have anything to salvage?
Absolutely spot-on, Mary. Well said.
you will find that the leave verdict of illegalfunding has been over turned by the high court, and remain was never taken to court as the board arranging it all was run and funded by brussels
Cleopatra, you have a very short memory! Can you remember the former Prime Minister David Cameron who sent every voter in Britain a leaflet produced at a cost of £9 million of taxpayer money (illegal) to tell us to vote Remain, because if we voted to leave, we shall be out of the EU Single Market and their Customs Union. Well, 17.4 Million of us. Opted Leave in 2016, and now un-democratically, the people’s vote is still in abeyance and Theresa May is virtually saying to Parliament to vote for her Withdrawal Agreement with a sting in its tail (with the backstop that will keep Britain under EU rule and European Court of Justice law) or there would be no Brexit. Is that what you would call democracy?
Furthermore, what gave her the right to enter such a Treaty with the EU without consulting her cabinet and her Tory Party? Is that democracy or is she violating 800 years of British Parliamentary democracy?
Was Cameron’s 9m of taxpayers’ money on the Leaflet of Lies not overfunding by remain? Far more so than the claim of overspending by leave which has been defeated.
Cleopatra. You seem to have missed a couple of points !
The referendum WAS legal because the Government provided it legally. Whether the funding was legal is a moot point because both sides were guilty of ‘mis-funding’, I refer to Scamoron using tax payer’s money to fund the very biased leaflet costing £9m.
As far as your figures on the voting population, not all of the voter population chose to vote (their prerogative) but of those who DID actually vote, the majority voted Leave and that is the figure that counts, not some concocted twisted aspect of percentages !
I rather fear that Gerard needs to heed the old Laws.
Expenditure rises to equal income..
99 % of everything is crap
Never promote poeple beyond their level of competence. No matter their words.
A plan is a good start. Once you start you need a better one.
The Peter Principle is under review. Until an explanation is found as to how one of the most incompetent Home Secretaries in the post war era became the most incompetent post war Prime Minister, the Principle will remain in abeyance.
JF
I hereby declare that Newcastle under Lyme be unilaterally declared independent ( U D I ). and that all taxes due shall be remitted to me including VAT of 50 % and divers non individual taxes of the person. Only 5 people who may or may not be resident, have so far been supportive and we are busily considering their options One of which is the proposed conquest of the 5 adjacent towns, and their application to leave the Potteries Union ( PU )
Or whether in fact it could be an application for us to leave their union.
LOL
I downloaded the WA from the government website and attempted to read it. There is also a so-called explanation of it available. I very quickly became bored and angry.
The fact that the WA runs to 599 pages is alone a good indication that it is not fit for purpose. I expect one that were fit for purpose would require a tiny fraction of that number of pages. It should have started with something like:
“From the agreed departure date we will cease to observe all EU regulations, laws and policies with the following exceptions:”
The (very short) list of those exceptions could follow but under no circumstance including matters of defence, national security, fishing, border control etc. which in some way would leave us subservient to the EU or otherwise disadvantage us. Obviously we should not pay them anything either but indicate that we are open to a free and fair trade deal to be negotiated seperately after we have left.
The clear alternative to that is just to leave as already mandated then let them come running to us for a trade deal. If they were to choose not to then goodbye.
Time for government to learn the benefits of KISS – “Keep It Simple Stupid”.
I to my stupidity reead it all with in 10 days as it took me that long as you had to keep going back and its a disgrace to ave ever been accepted by anyone
For comparison, the United States Constitution, in entirety, including ALL 27 amendments, only runs to 7500 words
Nigel – I don’t think the law matters much to the EU when it concerns their interests. The legal system in all EU countries seems to have become completely biased towards the interests of the EU. I remember when the European Central Bank wanted to start printing money but it was against the law in Germany, the courts found in favour of the EU even though it was against German law and there are so many other examples throughout the EU, certainly in Britain.
We’re in the twilight zone with Brexit our politicians have not only revealed themselves to be the ass*oles they’ve always been but they’re totally deranged and unlikely to let the law stand in their way. So, illegal the Withdrawal Agreement (not to mention a down right disgusting treasonous betrayal) may be, but our politicians and the Eurocrats are just not going to let that stand in their way, anymore than they’re going to let the fact that it is written into law that we leave the EU on 29th March 2019.
The law has suddenly become very flexible and elastic unless it is to apply to us hoi palloi; the only justice we can hope for at this point will be through the use of rope and lamp posts.
Our other recourse is through the ballot box. If the Tories carry on as they are, the party is finished. The only way it can redeem itself is for someone like Boris to be elected PM and declare we’re out immediately.
Another recourse, Debbie, and one rapidly becoming a possibility, is civil war. — and not just in the UK.
Anna Sourbelly just said on telly that the Prime Minister has to go, hastily adding “not the Government; that’s the last thing we want.” Could it be she is running scared of a General Election? If she is, I wonder why?
Debbie, do you really think Johnson would be any different to May?
He is a Tory and loyal to CCHQ. If he really believed in a WTO exit he could have resigned his seat and fought the by-election on a WTO/No Deal platform. Could/would May have opposed him with a Let’s give Brussels £39 Billion platform?
I think not. But he hasn’t because he’s a Tory, like every other one of them.
Perhaps I’m clutching at straws.
The ballot box is not a recourse Debbie, be realistic. For UKIP to make gains there would have to be the most extraordinary sea change in the fears of main-party supporters, who are afraid the Other Lot will get in.
I wasn’t thinking of UKIP gaining seats Rob. As much as I would like the party to do so it simply hasn’t got itself together enough. But the Tories will be wiped out.
Maybe not Boris. His latest blunder in respect of historic child abuse has left him looking more of an absolute clown than usual and I certainly wouldn’t vote for such as him now. I don’t want to repeat the actual word he used and wish I hadn’t looked up the meaning!
Piano wire please…not the comfort of rope.
Totally agree flyer. Since when did the EU worry about law? They view it as something to be used for their convenience, but not ours, ever.