Some recommendations on how the UK Government should deal with its commitments to the EU after Brexit.
Brexit-supporting organisation www.theunituk.org.uk has an article by Robert Henderson recommending that the UK should simply walk away from its EU commitments, adopt WTO status and immediately start negotiations on trade agreements with non-EU countries, as well as with the EU itself.
Henderson’s argument is based on an interpretation of the Vienna Convention on the Law of Treaties (VCLT) which, among much else, rules that a “treaty shall be interpreted in good faith…” and that a “violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.”
Henderson and a current writer for theunituk with one of us, via comments on their blog, aver two things: that the EU has not and does not conduct itself in good faith, and Edward Heath when he signed the agreement for Britain to join the EU knew that he was lying to the British Parliament and people when he said that we were just joining a common market and there would be no loss of sovereignty, so the accession treaty was essentially illegal, as a manifest violation under the VCLT.
They provide some detailed evidence but, to simplify, the conclusion is that the UK is not bound in law (VCLT) to remain in the EU. They argue that the complexities and risks of undergoing negotiations following the triggering of Article 50 are too great.
For example, “the Lisbon Treaty … forbade the financial rescue of another state except in the time of a natural emergency. This was immediately ignored by the EU which then set up ESM in direct contradiction of the Treaty. Even with Article 50, the EU is busily trying to place conditions upon us that have no basis in EU Law”. Such actions are clearly not in good faith.
“There certainly is no provision to pay a premium to the EU for the ‘privilege’ of leaving and most certainly not the attempt to blackmail Britain into paying the demand even before ‘negotiations’ begin.” A reference to the Lisbon treaty, in which Article 50 appears.
In conclusion, “the simplest solution for the problems of both the EU and for Britain would be to declare the British Act of Accession null and void then we could get on with mutual trade and cooperation without breaching the Law of either party.”
This is a brief summary of a detailed case, well supported with evidence. However, when we look at the possible outcomes of taking such a case to court, doubts arise. The two most significant courts that would be involved are the UK Supreme Court and the European Court of Justice (ECJ). The former has already shown its colours in relation to Brexit and we would not be confident that they would interpret “good faith” and “illegal” as readily as theunituk. The ECJ was set up to oversee but also to support ongoing EU legislation and its interpretation in the light of its treaties.
A walk-out by Britain would undoubtedly be challenged in court by the EU and by Remainers in Britain. Britain’s status while these difficult cases were being resolved would be uncertain but would probably involve being trapped within the EU, in an unpleasant limbo. And if either case were to be lost the position of the UK would be untenable. Add those risks to the everyday problems associated with WTO status and the case for walking away seems a lot less convincing.
The EU would be affected also but this isn’t the primary concern of the Eurocrats, who have shown very clearly how little they care about the problems they cause people and businesses in pursuit of their irrational dreams. Whatever the lunatics in the Commission feel, ultimately the power rests with the nations whose leaders are not all equally stupid, whatever their public statements. We think we should give negotiations some time. We’re sure they will start badly (see Barney or Blarney? And “All you need is love”) but there is considerable scope for change in the EU’s attitude as reality strikes, in spite of the fact that reality means nothing to the Commission.
In response to our reservations about the legal processes involved, theunituk quotes from the British Bill of Rights, of 1689, “no foreign prince, person, prelate, state, or potentate hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm”. Our interlocutor regards this Bill as a centre-piece of Britain’s unwritten constitution and concludes that, “the issue of National assets and Sovereign Rights which were the status quo in 1971 should be inalienable and NOT subject to any form of negotiation. … it would be in the best interests of both sides if Britain were to deem the Treaty of Accession as null and void.”
Our reservations about the complexities and risks involved in the legal processes that would be triggered are not assuaged by these, admittedly strong, arguments. However, given that Article 50 has just been triggered and that the British government has shown no sign of accepting the case for walking out (as distinct from a case for walking away from negotiations), we will leave the last word in this post to the tough-minded folk of theunituk.
“To my mind, an agreement without good faith on BOTH sides nullifies the agreement. … Then, we could start again in mutual trade and cooperation to the benefit of all concerned.”
Please feel free to comment on this exchange of views, or any of our other views in our blog.