Post
by Clarets4me » Wed Feb 06, 2019 10:30 pm
Interesting article just published on the " Telegraph " website, this is the text ... Author: Ambrose Evans-Pritchard
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.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 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.
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.
Tony Blair secured an exemption known as Protocol 30, or pretended to. “It is absolutely clear that we have an opt-out," he told the House in June 2007. In fact there was an obvious loophole in the wording.
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.
Since then the ECJ has ruled repeatedly on the basis of the Charter. It stopped the UK deporting an Afghan immigrant. It blocked the sharing of electronic data with US anti-terror authorities.
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.
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.
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. This shifts the needle in the parallel debate over Brexit in the US Congress.
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.
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.
We also know that Sabine Weyand, his deputy and erstwhile Cambridge literature buff, told ambassadors that the Withdrawal Agreement “requires the customs union as the basis of the future relationship” and that the EU will “retain all the controls.”
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.
Brussels is pursuing Britain for failure to charge VAT on commodity futures, options, and key derivatives on the London Metal Exchange, the London Sugar Terminal Market, and other exchanges. 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. Why now?
The EU claims that Britain has stretched the scope of the derogation, but as the old saying goes: the law is what you do to your enemies, it is what you interpret for your friends. It threatens to drive the business out of London and ruin one of the City’s prize industries.
“China, New York, Singapore and Dubai will be rubbing their hands with glee. They have been dying to get their hands on this important market,” said Ross Norman from Sharps Pixley.
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.
Lest we forget, the backstop is not the only landmine in the withdrawal package. The 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.
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.
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.
My guess is that we will end up with a formula purports to help us navigate the Irish question when in fact it is really trying to establish the perpetual jurisdiction of the ECB through the device of soft law. Watch the magician’s hands, not his face.
