Henry Newman: Why the revised deal’s changes to the backstop are significant – and offer Britain a route out

The final paragraph of Cox’s advice notes that in some circumstances the UK could suspend or exit the backstop under the Vienna Convention on the Law of Treaties.

Henry Newman is Director of Open Europe.

The Brexit options are narrowing. Yesterday evening, Parliament gave a definitive verdict against No Deal. While nothing has yet changed in statute, the Government has now accepted that the Commons is opposed to leaving the EU without an agreement. Later today, MPs will debate a new motion on delaying Brexit, for which there seems to be a majority. With the path to a No Deal Brexit disappearing, Eurosceptic critics of the deal should look again at Theresa May’s deal and, in particular, at the reassurances and clarifications she obtained at Strasbourg on Monday night.

The package agreed at Strasbourg came just hours before the second meaningful vote on Tuesday. As Paul Goodman observed, MPs were being bounced, and needed a “day or two’s deliberation” to weigh up the effect of any legal changes. Jacob Rees Mogg sagely suggested in advance of the vote that delay would have been sensible because “if people feel that they have been bounced, hurried and harried, their natural instinct is not necessarily to cave in, but to stiffen their resolve”. The Government, however, pressed ahead to another defeat (although they did persuade various influential backbenchers to back the deal including, most notably, David Davis).

The fate of the Prime Minister’s deal seemed sealed when the Attorney General’s legal advice was published. To Geoffrey Cox’s credit, he refused to bend his advice to political expediency. But his stark final paragraph kicked away the ladder that some erstwhile critics of May’s deal were halfway through climbing down. And, crucially, his line that a legal risk remained unchanged – “the United Kingdom would have…no internationally lawful means of exiting the Protocol’s arrangements, save by agreement” – distracted attention from a far more significant change outlined in his advice.

Eurosceptic critics of the deal have long been rightly concerned that the UK could be ‘trapped’ in the backstop if the European Union refused to negotiate in good faith. These fears were exemplified by a threat which Emmanuel Macron made in November – that the EU would use the backstop as a “lever” to extract concessions from the UK. He strongly implied that the UK would be forced to “remain for the long term in a customs union” unless it conceded on the future relationship, fishing rights and so on. This tallied with reported comments made by Sabine Weyand.

The changes agreed at Strasbourg on Monday night addressed that important concern. As the Attorney General himself noted in Paragraph 17 of his legal advice, the Strasbourg package of changes “reduce the risk that the United Kingdom could be indefinitely and involuntarily detained within the Protocol’s provisions at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU.

The risk that remains unchanged as per the concluding Paragraph 19 of his legal advice is a separate legal concern – that is, that the UK is unable to put forward any workable solutions to the Irish border. In that case, the backstop would remain binding under international law, unless fundamental circumstances changed.

But Eurosceptic critics of the deal are rightly convinced that a combination of technology, alignment, cooperation and facilitation can resolve the Irish border issue, as long as the EU does not arbitrarily refuse to engage with whatever the UK puts forward. In addition, the final paragraph of Cox’s advice notes that were the UK trapped in the backstop and there to be a “fundamental change of circumstances”, the UK could suspend or even exit the backstop under the Vienna Convention on the Law of Treaties.

A new legal opinion published by Guglielmo Verdirame QC – a professor of International Law at King’s College, London – sets out a number of important points which “may have been lost or not fully appreciated in the noise of interventions and commentary of the last hours”. Together with Professor Richard Ekins and Sir Stephen Laws, Verdirame had already written, in a paper published by Policy Exchange back in December, that, even before Monday’s changes, the UK would have had arguments in the event of the backstop becoming a trap. His opinion now reinforces the interpretation that the Strasbourg package has further improved the UK’s legal position. Crucially, Verdirame argues that:

“the risk of the backstop being used as leveraging for the next phase of the negotiations to lock the EU into a backstop-like arrangement indefinitely has receded significantly. In particular, it would be clearly incompatible with its obligations under the Withdrawal Agreement, [backstop] Protocol, and Joint Instrument , for the EU to adopt a negotiating stance that boils down to the position that only ‘backstop 2.0’ can replace the current backstop.

For similar reasons, it would be inconsistent with its obligations for the EU to adopt a stance that reflects the position attributed to President Macron, i.e. that the UK would have to pay a price (e.g. in terms of access to fisheries) to leave the backstop. The UK should indicate, in no uncertain terms, that it would regard an approach by the EU to negotiations on such basis, or on the basis of the leaked Weyand memorandum from last November, as incompatible with the EU’s obligations under the WA [Withdrawal Agreement] /Protocol and, more so, as clarified and amplified in the Joint Instrument .”

Moreover, contrary to views that circulated on Tuesday, Verdirame explains, it is incorrect to say that a dispute about whether the EU has acted in “good faith” in seeking to replace the backstop would end up being determined by the European Court of Justice on behalf of the arbitration panel.

There has, he suggests, been a great deal of confusion about what the concept of “good faith” means in this context – perhaps due again to the limited time that people had to reflect on these documents and to predictable attempts by those interested in stopping Brexit in creating a “nothing has changed” narrative.

To be clear: to win a hypothetical case against the EU for breach of the “best endeavours in good faith” obligation, and of the separate obligation to implement the Withdrawal Agreement including the backstop in “good faith”, the UK would not have to demonstrate “bad faith” on the part of the EU in the English law sense of dishonesty, fraud or deceit.

In one of the cases cited by Verdirame, the most important international judicial body, the International Court of Justice, said: “The principle of good faith obliges the Parties to apply it [the Treaty] in a reasonable way and in such a manner that its purpose can be realised.” This means the EU could not merely sit back, wait for UK proposals on avoiding the backstop and then reject them all. It would have to be not only reasonable in considering UK proposals, but also proactive in advancing its own solutions, which could not amount to – as Verdirame puts it – just “backstop 2.0”, that is something which for all intents and purposes replicates the backstop. So as a result of the Strasbourg package, the EU could not simply insist that it could only replace the backstop with something that looks like a backstop, swims like a backstop and quacks like a backstop – i.e. a customs union.

Critics of the Prime Minister’s deal understandably felt they had far too little time to consider the legal implications of the changes secured at Strasbourg. Those changes were less than many MPs had hoped to see. The EU has refused to move to a proper time limit or a clear unilateral exit mechanism. But just because Brussels wouldn’t move all the way, oesn’t mean that what they offered wasn’t significant. Key EU member states strongly resisted the Commission’s move to make the commitments offered in a letter exchange back in January fully legally-binding. They did so because they knew that they strengthened the UK position.

Amidst the maelstrom of Tuesday’s Brexit drama in Westminster, it was easy to miss the reaction of the Irish opposition. Fianna Fail’s Brexit spokesperson, Lisa Chambers, noted that there had been changes and that “we have come a long way” from a “bullet-proof, rock-solid, cast-iron backstop”.

Where we have landed is with a package of legally-binding guarantees agreed at Strasbourg which substantially shift the UK’s position regarding the backstop. Neither the EU or the UK side now have quite what they want – both positions are sub-optimal.  But many of the legal risks for the UK have been substantially reduced, although not entirely eliminated. At a certain point in any negotiation or any decision the question must focus on the politics, not just the law. We are now there.

David Snoxell: The International Criminal Court may put more pressure on the UK over the Chagos Islands

The Government’s long rearguard defence of the British Indian Ocean Territory has reached a higher theatre than I ever expected.

David Snoxell is Co-ordinator of the Chagos Islands (BIOT) All-Party Parliamentary Group.

Before Mauritian independence in 1968, the UK detached the Chagos Archipelago in 1965 to create a new colony, the British Indian Ocean Territory (BIOT), for the construction of a US military base on the largest island, Diego Garcia.

The UK promised to return the territory to Mauritius when no longer required. In 1979 Margaret Thatcher told Parliament that sovereignty would “revert” to Mauritius when the islands were no longer needed for defence purposes. That commitment has been repeated by successive governments.

In 1968-73 the Chagos Islanders were deported to Mauritius and Seychelles, although they could have remained on the 54 “Outer Islands” which have never been required for defence facilities.

It is 45 years since the last of the Chagossians living in the British Indian Ocean Territory were deported, 42 years since the issue was first raised in Parliament, 20 years since the most recent litigation began, 18 years since the High Court re-instated the right of abode, 14 years since the Foreign Secretary used the Royal Prerogative to overrule that decision and 10 years since the Chagos Islands (BIOT) All-Party Parliamentary Group was established.

Since my last piece in ConservativeHome in December 2017 a resolution of the UN General Assembly in June 2017 referred the issue of decolonisation and Chagossian resettlement to the International Court of Justice (ICJ). I have been dealing with Chagos since 1995 and never expected it to reach the ICJ. I attended the hearings in The Hague, 3-6 September.

The Mauritian team, led by Sir Anerood Jugnuath QC, PC, former Prime Minister and President, supported by Philippe Sands QC, spoke with passion and vigour, the UK team led by Robert Buckland QC, the Solicitor General, with detached forensic analysis.

But how could the UK team do otherwise? Their unenviable task was to defend the UK’s conduct of 53 years, which continues to violate the human rights of the Chagossians and avoid a diplomatic resolution of the sovereignty question.

Mauritius and the UK were each allocated three hours on the first day; 22 states then made oral submissions followed by the African Union, representing 55 member states. The UK was supported by the US, Israel, and Australia, and on the jurisdictional point by Germany. All other states supported Mauritius. The UK and its supporters argued from technical legal grounds, leaving Mauritius and the Chagossians occupying the ethical high ground.

A Chagossian contingent was part of the Mauritian delegation. None spoke but the Court was shown a moving video of Marie Liseby Elisé, who was present, describing her experience of being deported from Peros Banhos (Outer Islands) in 1973 and the death of her baby as a result. Both the UK and US expressed sympathy with the Chagossians, the US referring to their “sufferings” and the UK to their “shameful and wrong treatment”.

As the new Attorney General, Geoffrey Cox QC, has been a member of the APPG since 2008 and Standing Counsel for Mauritius, the UK was represented by the Solicitor General. The UK arguments were predicated on four assertions: no legal right to self-determination existed in 1965 or in 1968; the people of Mauritius had repeatedly consented to detachment (“freely expressed will of the people” in UN language); territorial integrity did not exist as a concept for non-self governing territories at that time; and the Mauritian authorities were not put under duress to agree to detachment. These historical arguments were strongly contested by Mauritius and her allies.

It was unfortunate that in addressing the Court, one UK lawyer noted that it was being asked to form an Opinion “in the absence of the witnesses to the key meetings, as they have long since died”. He was standing near the only surviving politician who was at the 1965 Lancaster House Constitutional Conference, a point Sir Anerood had made in his opening address.

The UK proposition that the people gave their consent is preposterous. In 1965 few Mauritians knew about the Chagos Archipelago. There was no referendum or plebiscite and Chagossians were neither consulted nor consented. The 1967 Mauritian general election was about forthcoming independence and economic issues. And yet the UK legal team claimed that “The UK sought and obtained consent in multiple steps, with time for reflection and consultation by the people of Mauritius and their representatives”.

On duress the UK cited several comments by Sir Seewoosagar Ramgoolam, the then Chief Minister, in support of its claim. No mention was made of what he later told the 1982 Select Committee of the National Assembly that the prime reason he had accepted the excision was that he felt “he had no legal instrument to prohibit the UK Government from exercising the powers conferred upon it by the Colonial Boundaries Act 1895, which powers could not be resisted even by India when the partition of that country took place before its independence.”

The Court could decide that it does not have jurisdiction to give an Advisory Opinion. If it gives one I would expect the APPG to mount pressure in Parliament to ensure that the Government respects it. As a founding member of the ICJ and strong advocate of the rule of international law it is unlikely that the UK would ignore an Advisory Opinion.

A decision is expected before the end of March 2019. Whatever the legal outcome the profile of Chagos and the Chagossians has been raised to the international level and is back on the UN agenda after 52 years. At its 70th meeting on 10 October the APPG agreed proposals for breaking the political impasse which it hoped the Foreign Office would consider in anticipation of an Advisory Opinion.

A judicial review of the Government’s decision in November 2016 not to restore the right of abode and allow resettlement is being heard in the High Court, commencing 10 December. This will be the seventh case which Governments have contested since 1999. Had they stood by Robin Cook’s decision in 2000 to accept the High Court judgment much of this costly litigation could have been avoided.

At a time when the UK’s standing and future in the world is uncertain an ICJ Opinion offers a diplomatic way forward with the potential for compromise and negotiation.

The Court of Justice of the EU is an imperial court, not an impartial court – it should not have post-Brexit jurisdiction in the UK

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 […]

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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.

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The ‘Norway for now’ option is far from perfect, but Brexiteers should consider its merits

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, […]

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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.

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