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Quote of the Process – Martin Howe QC

“…my own view is that signing up to this backstop with this review mechanism would be mad, simply mad….”

So writes Martin Howe QC, of Lawyers for Britain (sounding for all the World like a certain denizen of this parish) in a message to supporters, summarising his advice. He is referring to the proposed deal that the UK Cabinet is being asked by the FFC to agree to:

This is the advice I would give the Cabinet about the Irish border “backstop” arrangement.

First, the existing confusing December 2017 text about the “backstop” is not legally binding. We still have a brief, golden opportunity to walk away from this mess. The UK is free under international law to walk away. By contrast, if we sign a treaty text embodying a backstop arrangement, it would become legally binding. It is not realistic to say (as some have) that it is just a treaty and we can either change it in future or just break or leave it. We cannot do this unless its terms allow us to.

But it gets worse:

Trade treaties normally contain clauses which allow either party to withdraw on notice. I can’t think of a single existing trade treaty which does not contain such a notice clause. So what the EU is currently asking for – a clause which would allow the UK to terminate the backstop only if it is replaced by a subsequent agreement with the EU – is wholly exceptional in international treaty practice. This would lock the UK into a relationship with the EU which the UK could not escape except with the EU’s permission.

Instead of pressing for a simple clause which gives the UK the right to withdraw from the backstop on notice, the government is contemplating a clause under which the UK’s right to withdraw is dependent upon satisfying a ‘joint review mechanism’ or arbitral body.

It is virtually unheard of in international treaty relations for states to agree to be bound by decisions of tribunals which are not strictly neutral. Typically, an international arbitration panel will consist of an arbitrator appointed by each party and a neutral chairman. However, the Chequers White Paper has proposed an arbitration process modelled on Ukraine’s humiliating deal with the EU under which the arbitration panel is obliged to refer issues of EU law to the ECJ and is bound by its decision.

The legal black hole of the proposed treaty.

So my advice to the Cabinet is that agreeing to a backstop which the UK can only leave if we satisfy a review mechanism risks dropping the UK into a legal black hole for probably a number of years and quite possibly for longer .

While in that black hole, we would be subject to EU control of our tariffs and external trade policy and of wide areas of our internal laws, without having any vote on the rules which bind us, and we would be unable to negotiate trade agreements with non-EU countries.

We know have a clear legal right to terminate the application of EU laws to ourselves by giving two years notice under Article 50. We would have swapped that to a situation where our right to escape from EU laws would be not under our control, and in the worst case might lock the UK into the backstop permanently.

So it’s really a Brezhnev Doctrine for the EU, the acquis communautaire, with the UK conveniently deprived of voting rights, like a caterpillar injected with a wasp’s egg that slowly consumes the poor beast from within, when it thought it was going to pupate and become a butterfly.However, it’s not clear to me how the sovereignty of the UK Parliament could be subordinated (or suborned) to a treaty, presumably there will be some ‘supremacy clause’ seeking to establish Parliament’s subordination, it may be the Lawyers for Britain have the answer here, subordination to the ECJ.

15 comments to Quote of the Process – Martin Howe QC

  • decnine

    I’ve just heard some MP, whose name I didn’t catch, telling us that Parliament must insist on another referendum ‘to preserve confidence in the “Democratic Process”‘. She was a Remainer. I have to tell her that there is no confidence in the Democratic Process to preserve. These odious people have had their instructions since 23 June 2017. Since then they have done nothing but exert themselves mightily to subvert our wishes. To hell with them.

  • Since the chequers conference and the resignations, I sometimes feel I am watching one of those western films at the point where the music slowly rises in tempo and the camera flicks between eyes and gun hands creeping towards gun holsters as all the characters watch each other, trembling in tortured uncertainty over whether to draw first for the speed advantage or hope someone else draws first and so focusses the attention of the others for a vital moment. As is sometimes the case in those films, slow motion is heightening the drama.

    In westerns, the good guy (or, in spaghetti westerns, the least evil guy) wins. Let us hope real life can do as well, because in real life, we are not just watching the silver screen; we are in the scene too.

  • Stonyground

    “…preserve confidence in the Democratic Process”.

    Holding a second referendum because the first time the public got the answer wrong, yeah that should do it. I don’t see how but that will be because I’m an old, stupid white guy I expect.

  • pete

    Even a bad deal is better than what we faced only 3 years ago – eternal EU membership.

    No get out clauses are needed to rid ourselves of onerous conditions imposed by any forthcoming agreement between the UK and the EU.

    If we get fed up of obeying them our elected government could simply legislate to end that agreement and there is nothing the EU could do about it.

    International agreements are worthless if one or more party decides to opt out, and international courts are toothless if a country simply ignores their rulings.

  • bob sykes

    In the US, we rely on the courts to nullify elections. In the UK the Cabinet does the job.

    One thinks of the Rump Parliament and the murder of Charles I. May’s enemies had better watch out. Brexit will be cancelled come hell or high water.

  • CharlieL

    Go for it. It will be just like buying in to a time-share.

  • Mr Ed

    CharlieL

    😉 Or perhaps turning your own house into a timeshare where you pay your neighbours to come into your house, raid the fridge and booze, make your house rules for you and them, and they only have to leave if they agree?

  • Mark Green

    Why is the EU so terrified of having a Singapore off its western coast when it’s painfully obvious that there is no political party in the UK willing to make the relatively minor changes to its tax and regulatory systems that would enable such a wonderful outcome?

  • Paul Marks

    The endless lies of ALL (not just the accused BBC) the television stations in the United Kingdom (pro independence television stations re NOT ALLOWED in Britain) has had a effect on some people – hence the demands for a “second referendum” even though the first referendum has NOT been carried out.

    The people of the United Kingdom voted for independence from the European Union in June 2016 – but from September 2016 (when she first went to a European Union conference as Prime Minister) Mrs Theresa May has sought to undermine (to subvert) that vote for independence.

    More that two years after the vote for independence in June 2016, payments continue to be made to the European Union (indeed Mrs May has promised them yet another 39 Billion Pounds) and the EVER INCREASING European Union regulations continue to be the law of this land. And, of course, E.U. fishing boats continue to be in British waters – and the borders of the United Kingdom remain open. Whatever your view of fishing, or immigration, or tax-and-spend, or regulations, it is clear that Mrs Theresa May has defecated on the vote of the British people for independence in June 2016.

    Mrs Theresa May is indeed the “enemy within” a “Quisling” or Collaborator – who makes a great show of her “patriotism” whilst really being the stooge of a foreign and hostile power, the European Union, working AGAINST the independence of her country.

  • More that two years after the vote for independence in June 2016, payments continue to be made to the European Union (Paul Marks, November 14, 2018 at 11:01 am)

    We can censure Article 50’s being invoked 9 months after the vote instead of much earlier (but should note that remoaners cannot take all the blame; Gove’s epic messing up of the leaver-for-leader campaign was part of it). However I think it could probably be argued that the Leave campaign’s official line was always to leave by Article 50, regarding its 2 year delay as somewhat compensated for by its convenient brevity and lack of constraining detail.

    I will not of course be devastated if the departure day headline is

    Talks collapse. UK saves 39 billion. EU corruptrocrats hardest hit.

  • Ian

    It is not realistic to say (as some have) that it is just a treaty and we can either change it in future or just break or leave it. We cannot do this unless its terms allow us to. — Mr. Howe

    However, it’s not clear to me how the sovereignty of the UK Parliament could be subordinated (or suborned) to a treaty — Mr. Ed

    Mr Ed is right to doubt this. The key word in Mr. Howe’s remark is “realistic”. The Act of Parliament ratifying a given treaty can of course be repealed, unilaterally cancelling the treaty. This may have severe consequences in respect of other treaties, or in other ways — up to and including war — but it’s possible. The problem is that it would be somewhat unrealistic to think the UK Parliament is up to it.

    Incidentally, ratified treaties can also be ignored by sovereign powers without formally withdrawing from them. This was part of an argument used by John Yoo in the so-called “torture memos” back in the day. His claim (correct, I think) is that a US President (as Head of State) can decide whether or not to comply with the terms of the various Geneva Conventions; thus, even if waterboarding is torture then it would still be legal in the US for the President to order it done (and note the US is not subject to the ICC). A treaty is, after all, merely a promise; and promises can be broken. The same principle would apply in the UK, but it would be messier in a parliamentary system.

  • His claim (correct, I think) is that a US President (as Head of State) can decide whether or not to comply with the terms of the various Geneva Conventions;

    I think that is wrong under the US constitution, although it could be correct in the UK (and, it may be, in most countries). Treaties in the US are ratified by the senate and, IIUC, become part of US law.

  • Ian

    You have a point — I missed out a crucial part of the argument, that to enforce the statute relating to the Geneva Conventions might inhibit the President’s ability to conduct war. But if memory serves, there was never a formal declaration of war for other legal reasons to do with the handling of prisoners, or something. However, I think the general principle holds that in exigent circumstances executive power takes precedence in matters of foreign relations. I suppose impeachment and criminal prosecution could happen later, but that’s another matter.

  • Paul Marks

    One key fact (which I highlighted in one of the many posts that I write, but which do not actually appear on the blog – still that does not matter, as one can always get the same information across in comments) is that some supposedly “Leave” publications are really now disguised “Remain” (i.e. pro European Union) publications.

    For example, the Daily Mail under its new editor and the Daily Express under its new owner (Trinity Mirror) pretend to support leaving the European Union – but actually support that vile stooge of the European Union, Mrs May.

    It is important to note what utter WHORES (writing anything for MONEY) some of these newspaper writers are – for example Stephen Glover (a man I once respected) wrote an article today saying of Mrs May’s surrender to the European Union “it may heal a divided nation” – I hope the man chokes on the thirty pieces of silver.

    Corporate Big Business (who pay these whores) has joined hands with the establishment left (the television stations, pro independence television stations being ILLEGAL in the United Kingdom, the Civil Service, the education system and other filth) to betray the independence of the United Kingdom and sell out the liberty of the British people.

    Of the many newspapers I would say only the Sun (perhaps) and the Daily Telegraph (most certainly) are actually in support of the independence of the United Kingdom from the European Union. The rest of the “conservative” newspapers are just Mrs May supporters – filth.

  • Ian

    Ooh-er missus.

    Oh my giddy aunt.

    Trouble-at-t-mill?

    Just some of a number of comments that probably should not appear on this blog.

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