On 10th September I posted on this blog a bare assertion that the United Kingdom could not lawfully leave the European Union before September 2020.
See
The United Kingdom cannot leave the European Union before September 2020
In this post I will put a little flesh on the bones of that assertion and give access to a Briefing Paper that seeks to explain in terms of Public International Law, European Union Law and UK domestic Law why it is that the UK cannot lawfully leave the EU before September 2020.
The Briefing Paper is intended to be intelligible to both lawyers and non-lawyers. I have tried to pitch the content to both audiences.
Basically, I reject the prevailing interpretation of the timetable for UKExit, since that is based on the "simplistic interpretation" of Article 50 TEU.
I argue that to find the "correct interpretation" of the UKExit timetable one has to interpret Article 50 of the Treaty on European Union in a wider context, as required by Article 31 of the Vienna Convention on the Law of Treaties 1969.
When one finds the "correct interpretation" of Article 50 TEU, one can see that a "No Deal" UKExit is only lawfully possible when the UK makes a conscious choice to leave without a lawful Withdrawal Agreement and gives 12 months notice of that intention.
A disorderly, last-minute "No Deal" UKExit is not lawfully possible.
The current Brexit melodrama on the (erroneous) assumption that the UK can leave the EU on 31st October 2019 is merely the current manifestation of The Brexit Farce that has been underway since David Cameron made his spectacularly stupid Bloomberg speech on 23rd January 2013:
EU speech at Bloomberg
The Briefing Paper in which I explain why the UK cannot leave the European Union before September 2020 is available online here:
Briefing Paper No.2: The United Kingdom cannot lawfully leave the European Union before September 2020
Saturday, 21 September 2019
Tuesday, 10 September 2019
The United Kingdom cannot leave the European Union before September 2020
In this post I will make a succinct, surprising and startling assertion ... The United Kingdom cannot leave the European Union before September 2020.
The legal analysis which leads to that conclusion will follow in due course.
The legal analysis which leads to that conclusion will follow in due course.
Wednesday, 9 January 2019
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.
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.
The key sentence is the second one:
The key phrases are as follows:
In plain English (my paraphrase of the Article 50 TEU text):
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.
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.
Sunday, 14 October 2018
The Brexit Farce: The Brexit Challenge
The current situation regarding Brexit is farcical.
There is no solution in view to the legal conundrum that is Brexit, whatever the Prime Minister's increasingly desperate claims about the so-called Chequers Proposal.
Why do I emphasise legal questions when most media comment is a cauldron of speculation about aspects of UK politics?
That's simple.
Brexit is, fundamentally, a legal problem.
It is of course a legal problem with daunting political tortuosities but if there is no credible legal solution then the politicians have nothing credible to discuss.
Nobody, so far as I'm aware, has produced a plan for Brexit which is legally coherent and which produces an orderly Brexit.
Is a legally coherent, orderly Brexit possible? I suspect not.
In this post I want to pose what ought to be a simple challenge, which I'm calling the Brexit Challenge.
The Brexit Challenge is open to anyone, including the Prime Minister.
The Brexit Challenge is to produce a written plan which gets the UK from its current situation to its having left the European Union which is
Any credible plan needs to take account of fundamental legal questions that are currently being ignored by both the UK and the EU27.
One important unsolved problem is the Irish Border "backstop".
The "backstop" begins, as currently envisaged, on 1st January 2021 some 21 months after the UK is anticipated to have left the EU.
How can that legitimately belong in the Withdrawal Agreement?
In the terminology of Article 50 TEU it belongs, if anywhere, in the Framework for the Future Relationship.
I am not saying the Irish Border is unimportant. I am simply saying that the so-called Irish Border "backstop" does not lawfully belong in the Withdrawal Agreement.
Another unaddressed, and largely unrecognised, question is the Transition Trap.
If the current Withdrawal Agreement is implemented in March 2019 the UK has 21 months (from 30th March 2019 to 31st December 2020) to achieve an Association Agreement with the European Union.
In my view it is impossible to negotiate, agree and ratify such an Association Agreement by 31st December 2020.
The UK will, if the Withdrawal Agreement enters into force on 29th/30th March 2019, have left the EU so Article 50 of the Treaty on European Union cannot be used in late 2020 to extend the so-called "transition period".
So as 31st December 2020 approaches the UK will face a new cliff edge with, in my assessment, absolutely no control of its future.
The UK would have no stable relationship with the European Union and, consequently, there would be no foundation on which any of the supposed new trade agreements could proceed to completion.
The UK would be in the Transition Trap.
Any credible plan also needs to take account of a multiplicity of issues other than the possible future trading relationship between the EU27 and the UK.
Other important issues which raise important legal questions include:
So, there you have it ... the Brexit Challenge.
If you are aware of any solution to the Brexit Challenge please bring it to my attention at killbrexitnow@gmail.com or post it on Twitter addressed to me, @killbrexitnow.
If you have a solution to the Brexit Challenge I feel sure that the Prime Minister would also love to hear from you!
If there is no solution which produces a legally coherent, orderly Brexit is there any sense in the United Kingdom proceeding with Brexit?
There is no solution in view to the legal conundrum that is Brexit, whatever the Prime Minister's increasingly desperate claims about the so-called Chequers Proposal.
Why do I emphasise legal questions when most media comment is a cauldron of speculation about aspects of UK politics?
That's simple.
Brexit is, fundamentally, a legal problem.
It is of course a legal problem with daunting political tortuosities but if there is no credible legal solution then the politicians have nothing credible to discuss.
Nobody, so far as I'm aware, has produced a plan for Brexit which is legally coherent and which produces an orderly Brexit.
Is a legally coherent, orderly Brexit possible? I suspect not.
In this post I want to pose what ought to be a simple challenge, which I'm calling the Brexit Challenge.
The Brexit Challenge is open to anyone, including the Prime Minister.
The Brexit Challenge is to produce a written plan which gets the UK from its current situation to its having left the European Union which is
- Legally coherent i.e. credible in EU Law and UK Law
- Produces an orderly result
- Takes account of the risks and uncertainties of all intermediate steps
Any credible plan needs to take account of fundamental legal questions that are currently being ignored by both the UK and the EU27.
One important unsolved problem is the Irish Border "backstop".
The "backstop" begins, as currently envisaged, on 1st January 2021 some 21 months after the UK is anticipated to have left the EU.
How can that legitimately belong in the Withdrawal Agreement?
In the terminology of Article 50 TEU it belongs, if anywhere, in the Framework for the Future Relationship.
I am not saying the Irish Border is unimportant. I am simply saying that the so-called Irish Border "backstop" does not lawfully belong in the Withdrawal Agreement.
Another unaddressed, and largely unrecognised, question is the Transition Trap.
If the current Withdrawal Agreement is implemented in March 2019 the UK has 21 months (from 30th March 2019 to 31st December 2020) to achieve an Association Agreement with the European Union.
In my view it is impossible to negotiate, agree and ratify such an Association Agreement by 31st December 2020.
The UK will, if the Withdrawal Agreement enters into force on 29th/30th March 2019, have left the EU so Article 50 of the Treaty on European Union cannot be used in late 2020 to extend the so-called "transition period".
So as 31st December 2020 approaches the UK will face a new cliff edge with, in my assessment, absolutely no control of its future.
The UK would have no stable relationship with the European Union and, consequently, there would be no foundation on which any of the supposed new trade agreements could proceed to completion.
The UK would be in the Transition Trap.
Any credible plan also needs to take account of a multiplicity of issues other than the possible future trading relationship between the EU27 and the UK.
Other important issues which raise important legal questions include:
- Customs
- Regulatory checks at the border
- Aviation
- Surface transport between the UK and the EU27
- Data transfers
So, there you have it ... the Brexit Challenge.
If you are aware of any solution to the Brexit Challenge please bring it to my attention at killbrexitnow@gmail.com or post it on Twitter addressed to me, @killbrexitnow.
If you have a solution to the Brexit Challenge I feel sure that the Prime Minister would also love to hear from you!
If there is no solution which produces a legally coherent, orderly Brexit is there any sense in the United Kingdom proceeding with Brexit?
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