Back-to-front Brexit - Did the Attorney General mislead the House of Commons on 3rd December 2018?

In my previous post, Back-to-front Brexit - the basics, I set out some of the rationale for my view that the United Kingdom and the European Union (acting at 27) have, since March 2017, been conducting the Article 50 TEU negotiations in a manner contrary to that required by Article 50 TEU.

I conclude that the supposed Withdrawal Agreement approved by the European Council in November 2018 is unlawful, since it wasn't created by the process required by EU Law.

Similarly, the so-called Political Declaration is not the Framework for the Future Relationship as required in Article 50 TEU.

The logical conclusionm, if you accept the foregoing, is that the Attorney General (Sir Geoffrey Cox QC MP) misled the House of Commons on 3rd December 2018.

Nothing that Sir Geoffrey said on 3rd December disclosed this fundamental legal concern regarding the supposed Withdrawal Agreement and the supposed Framework for the Future Relationship which the House of Commons was to be asked to approve.

I conclude that if Sir Geoffrey had failed to identify this legal question he demonstrated a failure of competence.

Had Sir Geoffrey identified the legal question and withheld awareness of its existence from the House of Commons it seems to me that there was a failure of integrity on the part of the Attorney General.

Accordingly, in a letter dated 25th December 2018 I wrote to the Attorney General and asked him to consider whether he had misled the House of Commons on 3rd December 2018.

Given my view that the Attorney General had indeed misled the House of Commons, I asked Sir Geoffrey to resign as Attorney General, having first apologised to the House of Commons.

Back-to-front Brexit - the basics

The UK is in political turmoil.

I believe that a key factor in the causation of that chaos is what I'm calling "Back-to-front Brexit".

In other words, the United Kingdom and the European Union have attempted to carry out the Article 50 process in the wrong order.

Let me explain.

Anyone who has spent time reading Article 50 of the Treaty on European Union must acknowledge that it's not an easy read.

Here is Paragraph 2 of Article 50 which is the key to understanding what I mean by Back-to-front Brexit.

"2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament."

The key sentence is the second one:

"In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union."

 The key phrases are as follows:

"... the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union."

Again, increasing the focus on the text:

"... the Union shall negotiate ... an agreement ... taking account of the framework for its future relationship with the Union."

In plain English (my paraphrase of the Article 50 TEU text):

"The European Union shall negotiate a Withdrawal Agreement taking into account the Framework for the Future Relationship".

For the negotiation of the Withdrawal Agreement to "take account" of the Framework for the Future Relationship, the Framework for the Future Relationship must already exist.

In other words, so my argument goes, a correct application of Article 50 requires that the Framework for the Future Relationship must come FIRST.

In other words, the Article 50 TEU negotiation process that we have seen since Theresa May's letter of 29th March 2017 has been carried out in the wrong order.

Doing things in the wrong order has, in turn, led to the current political chaos in the United Kingdom.

If I'm right that the Article 50 TEU negotiation has been carried out incorrectly and therefore unlawfully, then serious questions must arise about whether the supposed Withdrawal Agreement agreed by the European Council in November 2018 can be lawfully ratified by the United Kingdom or lawfully concluded by the European Union.

Given those potential implications it seems to me that my proposition that the Article 50 negotiations have been seriously messed up requires to be examined in detail as a matter of urgency.

A host of legal and political questions arise, some of which I hope to deal with in future posts on this blog.