Ambrose Evans-Pritchard (AEP) has written a most excellent article in the DT today:
Parliament beware: the backstop and the EU Political Declaration are a double trap
Not only is it behind a paywall – it is in the Business section where not many of us dare to venture. That is a great pity because he uses an important act in History when looking at the Backstop, putting most arguments of those who try and defend it were it in a somewhat softer form into perspective – a perspective which we can all appreciate.
I shall quote extensively so you can enjoy AEPs writing. The emphasis (bold) of certain sections are always mine.
AEP starts:
“Be very wary of any EU codicil, protocol, or soft law memorandum offering assurances on the Irish backstop. Either it safeguards the UK’s sovereign prerogatives and free agency, or it locks the country into a perpetual legal arrangement as a regulatory captive without voting rights. It is one or the other. No fuzzy compromise on this legal point can exist.”
Keep this in mind, especially in view of this:
“The 1713 Treaty of Utrecht still holds force – to the eternal irritation of Madrid – because it is extremely difficult to abrogate. “You cannot get out [of] treaties unless there is a ‘denunciation clause’ or by mutual agreement,” said Lorand Bartels, a law don at Cambridge.
NAFTA, NATO, or the WTO, all have escape clauses. That is why Donald Trump can threaten to tear up everything. The Withdrawal Agreement does not. It is sui generis.
No large country in modern peacetime history has ever signed a treaty document of this kind yielding fundamental sovereign powers for ever. The insolvent king of Spain agreed to the Treaty of Utrecht and the loss of Gibraltar only because he had been defeated in the War of Spanish Succession.”
That point alone shows the asininity of the Backstop defenders. Have we been defeated in a war? Are we insolvent? Closer to the point: is Spain hoping to get back Gibraltar once we’re inextricably bound into the EU?
AEP continues:
“We already have the hard lesson of the EU’s Charter of Fundamental Rights, the so-called Christmas tree of rights dismissed at first by one Europe minister (Keith Vaz) as “no more binding than the Beano or the Sun”.
The Lisbon Treaty later gave the Charter legal force under the European Court (ECJ). This created a clutch of aspirational economic and social rights that clash with Common Law practice. […] The consequence is that the ECJ acquired jurisdiction over swaths of British commercial, social, and criminal law through the backdoor, becoming the UK’s effective supreme court at a stroke.”
This is what the Remain/BRINO advocates hope we overlook: being under the ECJ for perpetuity. Don’t ever forget it and remember that the WA/Malthouse Compromise and current ‘negotiations’ are just smoke and mirrors (see today’s “YOUR DAILY BREXIT”). AEP’s next point:
“The question is whether any soft law offer by the EU on the Irish backstop is equally worthless. Last month’s letter to the Prime Minister from Jean-Claude Juncker and Donald Tusk – heads of the Commission and the Council – promised “best endeavours” to negotiate a quick replacement for the backstop. This has some force in international law. Andrew Duff, a former MEP and president of the Spinelli Group, said there could be a third document bridging the legally-binding Withdrawal Agreement and the non-binding Political Declaration. Some formula will be found to clothe the “best endeavours” pledge in legalese.”
It’s indeed about cloaking our vassalage in soft but binding terms, to which our PM and MPs will agree because they are either too stupid to understand the implications or have been given ‘special advice’ by Remainer civil serpents.
Continuing, and indicating the reason why this article is in the Business section:
“Brussels needs to do something because risks are rising. Europe is suddenly in a rougher predicament than anybody expected, hence Mr Tusk’s talk of dispatching Brexiteers to a “special place in Hell”.
The eurozone is near recession with no monetary or fiscal defences. It faces the escalating risk of an Italian debt crisis spreading to French and German banks. A no-deal Brexit has become very dangerous for the EU as well.
While there is much chatter in Westminster over whether Europe would agree to extend Article 50, the story en coulisse in Brussels is how many EU states urgently need an extra three months themselves because they are not remotely ready. Austrian Chancellor Sebastian Kurz let slip in Davos that the EU cannot compel the British to request a delay.”
But then again, Mr Selmayr let slip that the EU has been preparing for a No-Deal-Brexit since 2017 …
Continuing, AEP makes a point which has sunk without trace:
“Nor does Brussels entirely control the moral high ground over the Irish border. Lord Trimble and his Nobel Prize have crept into the equation. It is becoming harder to claim that the backstop is a necessary guarantee for the Good Friday Agreement when the man who brokered the accord calls it a prima facie of violation.”
Moving on:
“Even so, the EU offer will fall short of a categorical legal time-limit on the backstop. In which case there is little that Britain can do if Brussels closes the trap later. The EU is not a party to the International Court of Justice in The Hague, so where does one adjudicate breaches of the Vienna Convention? It comes down to whether you think the Commission is genuinely acting in the interests of Irish peace, or exploiting an emotional issue in order to lock the UK into its customs territory and legal orbit.”
AEP observes:
“We already know that Brussels will take a maximalist line on what constitutes workable technology for the border, despite last week’s admission by EU negotiator Michel Barnier that “virtual, decentralized controls” could be used in the event of a no-deal Brexit. […] It is hard to put a friendly construction on motives when the same Commission is currently attempting to shut down a large part of the City’s commodity trading business in a punitive attack.”
AEP links to this paywalled article: Brussels is pursuing Britain for failure to charge VAT on commodity futures, and explains:
“This is to overturn a settled compromise dating back to the UK’s original derogation in the 1970s on zero-rated VAT in this market. […] This saga is a warning of what is in store as Britain heads into a transition with no veto power or defences, and why semi-permanent limbo as an EU legal adjunct could prove untenable.”
Furthermore:
‘[…] the backstop is not the only landmine in the withdrawal package. The supposedly non-binding Political Declaration keeps the UK subject to the Acquis on the environment, labour law, taxation, competition, and state aid. Non-regression clauses make this law impossible to repeal even where its manifestly harmful. Paragraph 132 states that the ECJ will have the final say on disputes. This extends the legal capture of the Withdrawal Agreement into the future relationship. Paragraph 135 establishes a punishment mechanism, with fines for breaches of the accord.”
One more point lost in the WA/BRINO debate:
“No mutual recognition has been secured for future trade in services. The largest part of the economy has sacrificed. The deal is tailored to the goods industry where the EU has a £92bn surplus and has most to lose.”
Coming to the end, AEP writes
“Whatever is agreed by Parliament in coming weeks does not end the interminable argument. The May deal is a £39bn contract that merely allows us to start the next stage of discussions, when the UK will have even less leverage. As the UK’s former Brexit negotiator Sir Ivan Rogers warns, we will have our backs to the wall again when the next cliff-edge approaches. The furore over the backstop has diverted attention from the latent menace of the Political Declaration. To the extent that there are legal assurances on the Irish issue, the language may have the side-effect (intended by Brussels) of binding us even more tightly on the future relationship. That would be the perfect double trap for the EU.”
His conclusion is a warning our and the EU establishment hope we’ll overlook:
“My guess is that we will end up with a formula that purports to help us navigate the Irish question when in fact it is really trying to establish the perpetual jurisdiction of the ECJ through the device of soft law.”
I’ve quoted at length because this is what we need to talk about, what we need to write to MPs about. They are very inconvenient to the Establishment, but one hopes the business people who read this article (rather than the usual suspects) will pick up the points AEP made and run with them. You can run with them as well!
I suppose another example of soft law phenomenon is the UN Global Compact for Migration which the Govt say is “not binding” when in practice it certainly is, unless we brexit .
https://petition.parliament.uk/petitions/234014
Petition to immediately publish legal advice re brexit
Signed Mary No 1239
I hope you have posted this on other threads, not everyone reads them all I believe
will now do
Excuse my ignorance and what may seem a silly question but re “You cannot get out [of] treaties unless there is a ‘denunciation clause’ or by mutual agreement,” what repercussions would there be if a country just tore up a treaty, assuming it had sufficient leverage and possibly military might? Could someone educate me on this.
Mary, the question you raise both reveals the emptiness of EU threats and how successive UK governments have made agreements with the EU that are simply unconstitutional and by doing so deliberately have acted in bad faith, specifically the original 1972 Act and the 1992 Maastricht Treaty.
The constitutional principle is clear, present parliaments cannot bind future parliaments therefore all treaties are get-out-able.
It all boils down to Sovereignty and is well set out in an unlikely source here https://www.independent.co.uk/news/uk/politics/the-independent-guide-to-the-uk-constitution-the-supremacy-of-parliament-10308704.html and here is a relevant paragraph:
Sovereignty means that Parliament can make laws concerning anything. It means that no Parliament can “bind” a future parliament to something on which it has previously legislated; and that a valid Act of Parliament cannot be questioned by a court of law.
Many thanks
Horrifying. Most of our political class fall into one of these categories; traitors, stupid or incompetent. Must give them another dose of poster trucks next week.
Viv – I really enjoy your brilliant exposés and they should be required reading for the idiots supposedly governing us. There is so very much wrong with May’s Great Betrayal and the backstop is by no means the worst of it.
Why aren’t our so-called betters aren’t screaming Blue Murder at the rest of this toxic document?
Why aren’t the so-called experts like JRM screaming for the rest of the legal advice given to the PM, and not just the Irish question?
Why isn’t someone with access to the MSM kicking up the biggest stink over this?
I promised myself I wouldn’t rant today – looks like I failed again!
Keep up the good work, Viv. I know I’m not the only one who appreciates it.
Thank you very much, Penny, for your kind words!
There are some days where ranting is the only option if one wants to stay sane.
Thanks Vivian. That is well explained to the point that even I can follow it ! ….. So how do we make ‘Leaving with no deal’ less of a nightmare to some people, and give promotion to WTO terms which, as we know, is no cliff edge at all ?
We are still stuck with our domestic issue problem, of Mrs May holding on to the PM’s job, where she has dug a deep hole for herself, and this silly Madam is still digging. This is the first question that we need to ask !
An OPEN LETTER to Donald Tusk, President of the European Council:
Dear Mr Tusk,
So there is a special place in hell for those wanting Brexit and no plan how to get there, is there?
I am such a person, Mr Tusk. I wanted to get out of the EU. In this country, we had a referendum, whereby our Parliament lends power to the People, and we voted Out. Not that this is of the slightest concern to you, but there are AT LEAST 17.4 million of us. So that place in hell better be pretty bloody big. I say at least, because I personally know DOZENS of young people around 17 or 18 who believed in getting out of your prison, who of course were too young to vote in June 2016. Oh and by the way, I DO have a plan. It’s to leave the EU. Tear up the EEC 72 Act, or trigger Article 50 and just leave under WTO rules. Either works for me.
I care about people in Germany. Our family has friends there. I care about French, Dutch and Italians, and all the others. But I couldn’t care LESS about the EU or you people in your disgusting, monolithic ivory towers in Brussels, or your precious doomed project. In fact I care about as much as you do for the citizens and country of Great Britain.
I suggest you go home, have a couple of beers, and then come in to the office tomorrow and work with a bit more class.
By the way, there is another special place in hell, for obnoxious, greedy lying undemocratic scum like you.
In the Utmost Sincerity,
Rob Pearce
on behalf of at least 17.4 million proud citizens of Great Britain
Well said Rob, you echo the thoughts of many of us. Nothing from GB on this so far; perhaps you should copy your letter to him.
You need to widen your reading Jack.
https://kippercentral.com/2019/02/06/special-place-in-hell-batten-defends-brexiteers-from-tusks-overwrought-attack/
Thanks Jim, I’l ltake a look. I was expecting an email update from him…
Well said Rob, all I would add is that Tusk’s own people did not want him to be appointed to his EU job, such was and is his unpopularity in Poland, bit of a blair really
“Parliament beware”!
Do those in Parliament even care that it is a trap? After all many are complicit in May’s shenanigans and clearly welcome anything that will either delay our leaving or keep us in the EU indefinitely.
Jack, gradually since 1972, genuine MPs able to originate primary legislation have been replaced by rubber-stamping EU civil serpents, this is the basic problem with parliament today, 47 years and counting of hollowing out.
This needs to be stopped. Peacefully …
Excellent Viv.
” Latent Menace ” of her withdrawal agreemen
Where the F***k is Gerard.
. NIGEL COULD SAY IT AND BE HEARD.
Good guy though Gerard seems to be he simply doesn’t appaear to have the necessary fire in his belly.
Would someone without fire in their belly campaign loyally and tirelessly for 25 years while putting up with endless snipes and insults? If you want someone with more “razzmatazz” who is also trustworthy I fear you will wait forever, or get another Henry Bolton situation.
There is absolutely nothing stopping Nigel from saying it now, and being heard So why doesn’t he help out a bit and do so?
Ego? Self interest over national interest?
Thanks Viv for your excellent interpretation of the “real unnoticed (Deliberately so? TRAPS” to the return of our complete Sovereignty in this seemingly vacuous ( but deadly) withdrawal agreement. printed in the business section of the DT
I exploded in your column yesterday and I make no apologies for repeating what I said below.
“I get the general tenor of the backstop being toxic etc and requires a severe stromaching, but I thought the body of the Withdrawal Agreement itself was considered to be full of at least 40 NoNoes, some of which in themselves meant we left in Name only, where is the programme for administering a load of bleach over those.
And what is being done about that little matter that that nice Bill Cash raised (never understood what it was – but it certainly caught St Theresa out in a bit of grand larceny – if that`s what you call a bit of devious deception) ”
Seems Mr.Evans-Pritchard has answered me. Is he going to get anywhere?????
Can somebody ask a question in the HOC requiring the PM to be dragged before it and required to answer. (if not the PM; that preposterous Attorney General will do for a start!!!)