We are seriously into the end game now. Maros Sefcovic, EU Vice President, flew to London to speak with Michael Gove about Britain's plan to nullify or override parts of the Withdrawal Agreement. The EU released a statement afterwards which was very tough and uncompromising. He spoke in "no uncertain terms" about the need to stick to what was agreed, The EU he said, "expects the letter and spirit of this Agreement to be fully respected. Violating the terms of the Withdrawal Agreement would break international law, undermine trust and put at risk the ongoing future relationship negotiations."
He gave the UK government until the end of the month to take out the bits of the UK Internal Market bill which would contravene the WA.
Gove later appeared on TV saying they had no intention of doing so, thus setting the scene for a showdown. Something is bound to break in the next three weeks - but curiously it will not be the trade talks.
Sefcovic is talking about using the terms already in the WA to take Britain to the ECJ which could impose fines or trade sanctions but pointedly he did not threaten to end the trade talks. The eighth round finished on schedule yesterday with no progress announced so I assume none was made. Barnier's statement was gloomy and talked of a lack of engagement and clarity from our side - a familiar lament. But it ended by saying "The Chief Negotiators and their teams will remain in contact over the coming days" and the next round will go ahead in Brussels next week. Brussels, he said was "intensifying its preparedness work to be ready for all scenarios on 1 January 2021."
So, nobody is talking about an imminent breakdown of the trade talks although they're achieving nothing because neither side wants to accept the blame. These will go on as a sort of mad charade for a long time.
So, what will break? There are plenty of things. The government, the Tory party, the civil service and the constitution are in line I think, because a lot of Conservatives, including both former prime ministers and now Lord Howard have openly attacked the government for its plan to breach international law. It is a big moment and its hard to know where the first cracks will appear.
Everybody knows the man behind it all is Cummings and he is not popular with anybody on either side of the House. Plenty of Brexiteers are lining up to call for the WA to be repudiated - Steve Baker on Radio 4 this morning was the latest. Their problem is they agreed to it, voted for it and stood on a manifesto which had the deal as it's central theme. They are starting to look like idiots.
The justification for breaking international law has been published and ridiculed. Suella Braverman, the Attorney General, published a single A4 sheet which a Cambridge law professor described as "risible."
Attorney General @SuellaBraverman still hasn’t resigned, but she has broken her recent silence on the Internal Market Bill by publishing a statement of HM Government’s ‘legal position’ on it.— Mark Elliott (@ProfMarkElliott) September 10, 2020
It runs to one side of A4.
And it is utterly risible.
/1 https://t.co/jx1Jy2cAIL pic.twitter.com/xJvwej8yL5
Ms Braverman has fundamentally misunderstood the law apparently. The clearest explanation comes from a Twitter thread by Gavin Walshe. I'll summarise it below:
This has to do with the concept of a binding obligation, and the correlative right to enforce (or waive) that obligation. If the treaty contains a binding obligation on one party, it means the other party has the right to demand the obligation is performed, and hence the power to waive or enforce the obligation.
In the case of the Withdrawal Agreement, the EU imposes obligations on the UK. It follows that the power to enforce or waive these obligations lies with the EU. Braverman is arguing that parliamentary sovereignty in domestic law can override this.
If this is true, it follows that the power to demand (or waive) the UK uphold the WA doesn't rest with the EU, but is in fact held by the UK. She is therefore claiming that the WA gives the EU no rights, and therefore, imposes no obligations on the UK, because her argument isn't limited to the clauses the Govt wants to override, but is a general one, applicable to the whole treaty.
Indeed, the argument is more general than that. There's nothing specific about the EU or this WA.
It applies to all treaties with anyone. It therefore follows that the UK cannot make any treaties with anyone, but only incur "obligations" to itself, that its parliament can, not as a matter of practice, but a matter of law, cancel at will.
I think you can see that the AG's legal opinion is not going to stand up and the government will have to concede, either recognising it was a daft idea anyway (not likely) or by being forced to drop it by the House of Commons or the Lords. Or a mass resignation of senior mandarins.
If it ever got to the point of needing Royal Assent there is the question of dragging The Queen into it all. So, unless wiser heads prevail in Downing Street I think a constitutional crisis is at least a possibility.
The next few weeks will be fascinating in this long Brexit saga. We are now reaching the end game - and how.
In the case of the Withdrawal Agreement, the EU imposes obligations on the UK. It follows that the power to enforce or waive these obligations lies with the EU. Braverman is arguing that parliamentary sovereignty in domestic law can override this.
If this is true, it follows that the power to demand (or waive) the UK uphold the WA doesn't rest with the EU, but is in fact held by the UK. She is therefore claiming that the WA gives the EU no rights, and therefore, imposes no obligations on the UK, because her argument isn't limited to the clauses the Govt wants to override, but is a general one, applicable to the whole treaty.
Indeed, the argument is more general than that. There's nothing specific about the EU or this WA.
It applies to all treaties with anyone. It therefore follows that the UK cannot make any treaties with anyone, but only incur "obligations" to itself, that its parliament can, not as a matter of practice, but a matter of law, cancel at will.
I think you can see that the AG's legal opinion is not going to stand up and the government will have to concede, either recognising it was a daft idea anyway (not likely) or by being forced to drop it by the House of Commons or the Lords. Or a mass resignation of senior mandarins.
If it ever got to the point of needing Royal Assent there is the question of dragging The Queen into it all. So, unless wiser heads prevail in Downing Street I think a constitutional crisis is at least a possibility.
The next few weeks will be fascinating in this long Brexit saga. We are now reaching the end game - and how.
