Moar Brexit, moar EU – it’s a covid-free zone today
Yesterday morning I was happily bumbling along, checking out what was happening in Merkel-Land by visiting the online pages of the only non-woke paper ‘Die Welt’ when their “Breaking News” strapline, in vivid orange, caught my eyes. It announced that Ms vdLeyen plans to initiate legal proceedings against our country because the IMB (Internal Marketing Bill) which had passed the HoC on Tuesday contained ‘clauses’ which Brussels regards as violating the WA.
Brussels had set an ultimatum for our Government, to withdraw those clauses by Wednesday. That did not happen, so Brussels will go to the ECJ unless we comply with the EU’s demands within the next four weeks, Ms vdL announced, stating that she’d sent a letter with that latest ultimatum to the PM.
I immediately abandoned the German paper, wanting to see what ‘our lot’ made of this. What did I find? RemainCentral had one report while the DT had not just the one report by their Remain Brussels Correspondent, they had also, in quick succession, opinion pieces, one of them by Patrick O’Flynn and a later one by Martin Howe QC and Clive Thorne, chairman and vice-chairman of ‘Lawyers for Britain’.
RemainCentral , unsurprisingly, had the ‘best’ Remain headline: “EU sues over breach of Brexit treaty” (link, paywalled) – no, they’re not! Brussels has only instigated the first step by writing to our government with another ultimatum, but never mind that petitesse! The DT’s headline was a bit less incendiary but equally ever so slightly incorrect: “Brussels launches EU lawsuit against UK over Brexit treaty breaches” (paywalled link).
They later edited the subtitle, to get Nigel Farage into the mix. It now reads: “The action has received unlikely support from Nigel Farage: all the EU is doing is ‘asking Boris to keep his promises”. I must start taking screenshots of the headlines ‘Our MSM’ edit after publication, on purpose, to muddy the waters!
The Express reported (link) what Nigel really was on about. That article saw the light-of-day at 15.09pm. Since the DT’s report was published at 10.58am, it surely begs the question how come Mr Crisp, their Brussels correspondent, knew what Nigel was saying hours later. Was it an astonishing piece of prescience, or proof yet again of manipulating ‘news’ by post-publication editing?
Here’s the report in the DT – RemainCentral published substantially the same, being ‘late’ to the party, their report only coming out at noon:
“Brussels had set Britain an end-of-month deadline to withdraw clauses in the Bill relating to state aid and export declarations for Northern Ireland, which it said broke the Withdrawal Agreement and international law. “The problematic provisions have not been removed,” Ursula von der Leyen […] said, adding that this “draft bill is by its very nature, a breach of the obligation of good faith, laid down in the Withdrawal Agreement”. […] Mrs von der Leyen said the European Commission had sent a letter of formal notice to the Government on Thursday morning. Britain has a month to respond.” (paywalled link)
In the wake of that announcement, our friends at facts4eu immediately published an excellent compilation (link), with further links to the material they’ve documented about the EU’s negotiating in bad faith. This observation is of particular interest:
“In the words of a top EU legal expert to us this morning: “The EU has moved too early, before the end of transition how can the EU know if it is us or them that has failed to conclude a deal? How can debating something in a democratic parliament be a breach of a treaty? What about UN rights to self-determination? There can be no better evidence that the Withdrawal Agreement is an affront to democracy. The EU move is more evidence of bad faith – using a possible but not yet actioned breach as a pretext for legal action timed for the purposes of maximum negotiating impact.” (link)
We cannot but agree with our friends when they state that they concur with this EU barrister. Do read the whole thing! Also quick out of the starting blocks was the unsurpassed Sir John Redwood, summing up the situation in his Diary before proposing the text of a letter government ought to write to the EU:
“A petulant EU has refused over many months to simply discuss a Free Trade Agreement which they agreed would be at the core of our future relationship. Now in a tantrum they propose to take us to their court to tell us they think we are wrong! Meanwhile, a rattled EU nonetheless rejigs the talks and is at last prepared to discuss a Free Trade Agreement.” (link)
You can read that letter which Sir John Redwood suggests the PM write to the EU at the link above. Next, and as mentioned above, Patrick O’Flynn was equally quick out of the starting blocks, writing in the DT:
“Ms von der Leyen has given Britain a month to respond to the Commission’s threat that should the Internal Markets Bill – which gives the UK authority to resile from certain clauses of the Withdrawal Agreement – reach the UK Statute Book then matters will be taken to the European Court of Justice.” (paywalled link)
His following remarks put this into the proper perspective – it must have riled the Remain Brussels correspondents who ought to have been aware of these circumstances:
“Yet by the start of November we shall know […] whether we are talking Deal or No Deal. If it is the former then the disputed clauses of the Bill become academic as they are only designed to be triggered in an emergency to protect the status of Northern Ireland in the event of no agreement being reached. If the latter has come to pass then, frankly, Britain will be past caring what pieces of legal paper are being sent by the Commission to the ECJ, its tame court from whose jurisdiction we will imminently be departing.” (paywalled link)
Just so! Next, let’s look at what the two lawyerly heavyweights from “Lawyers for Britain” had to say. After describing the background for the IMB they observe:
“In practice, states quite often disregard treaty obligations or interpret them to their benefit.[…] International law is not a hard-edged code like the national laws we are familiar with in our daily lives. It is built on the custom and practice of states and there are circumstances where it is generally recognised that states are legitimately excused from the complying with treaty obligations.” (paywalled link)
Next, they list the points why the IBM doesn’t ‘break’ international law:
“First, the clauses as such do not breach anything. Even if passed into law, they simply authorise action in the future. Second, there is a general principle of international law that treaty powers should be exercised in good faith. The EU’s blocking of reasonable “goods at risk” rules, threatening to use treaty machinery to impose tariffs on trade between Britain and Northern Ireland, could be classed as a bad faith exercise of treaty powers. The Government’s clauses, in turn, would allow the UK to protect itself from abusive exercise of treaty powers by the EU and on that basis can be justified under international law. Third, the Government would be acting in defence of a fundamental aspect of the United Kingdom’s constitution which is built upon internal free trade between the different parts of the UK.” (paywalled link)
Their next observations demonstrate nicely why this proposed EU lawsuit actually infringes ‘universal international treaty practices’:
“When the UK was an EU member, the ECJ was a multi-national court in which the UK participated – helping to frame its rules, and appoint a judge and an Advocate General. After we ceased to be an EU member in February, it became an entirely foreign court which owes its allegiance wholly to the EU, and none whatsoever to an ex-member state like the UK. Under universal international treaty practice, sovereign states simply do not subject themselves to binding rulings by the courts of another treaty party. They insist on strictly neutral adjudication.” (paywalled link)
Their conclusion supports Patrick O’Flynn’s arguments above:
“Two things can be said. First, there is no actual means by which an ECJ judgment can be enforced against a sovereign state which defies it. Secondly, there are credible international law arguments that the UK’s obligations under the WA and its Protocol as a whole – including the egregious and one-sided ECJ jurisdiction clauses – have been vitiated by the EU’s bad faith behaviour over the course of the negotiations. What happens ultimately will be decided by the political reality.” (paywalled link)
That ‘political reality’ will be determined by the outcome of the still ongoing talks between M Barnier and Lord Frost today. Gossip from ‘sources’ shows that the two sides, unsurprisingly, see things differently:
“UK officials in London were reported as being optimistic they had done enough to convince Brussels to enter intensive tunnel talks and get a deal done by the October 15 EU summit. EU officials said there was no increased optimism and diplomats warned that UK offers on fishing and state aid may not have gone far enough.” (paywalled link)
‘Tis ‘Groundhog Day’ in Brussels and no, I dunno what is meant by ‘intensive tunnel talks’ either. We’ll know more by tomorrow. Meanwhile the IMB is before the HoL. It’ll be interesting to see if the Noble Remain Lords have any patriotic blood left in their veins – or if they’ll side with the EU and thus give more strength to the calls to scrap the HoL as it currently is.
Meanwhile take care – that Covid thingie is still around! – keep well, and