Top Lawyers: Strasbourg Deal Has “Significantly” Reduced Risk of Permanent Backstop

Geoffrey Cox succeeded in comprehensively spiking the Strasbourg concessions he secured on the backstop with his own legal advice stating that the “legal risk remains unchanged”. Now with the benefit of a few more days to analyse them, a group of top pro-Brexit lawyers have written a report for Policy Exchange arguing that Cox got his own advice wrong. They say: “The risk of the backstop being used as leveraging for the next phase of the negotiations to lock the EU into a backstop-like arrangement indefinitely has receded significantly”.

The paper is co-authored by Professors Guglielmo Verdirame QC and Richard Ekins, and former First Parliamentary Counsel Sir Stephen Laws. They say that the Strasbourg concessions mean that the EU would be breaching “good faith” to dismiss all alternative solutions to the Irish border, particularly in light of the fact that the “EU is fully apprised of the fact that the UK’s present objective is to leave the Single Market and the Customs Union”, concluding that:

“It would be clearly incompatible with its obligations under the Withdrawal Agreement, Protocol, and Joint Instrument, for the EU to adopt a negotiating stance that boils down to the position that only ‘backstop 2.0’ can replace the current backstop.”

Cox has now updated his legal advice to say that the UK would have the right to invoke Article 62 of the Vienna Convention to withdraw from the treaty in “exceptional circumstances”, for instance if the “the prolonged operation of the Backstop was having a socially destabilising effect in Northern Ireland.”

The Brexit ‘Star Chamber’ has rejected Cox’s latest advice, but Cox has found support from an unlikely source in Remoaner lawyer Lord Pannick QC, who led and won Gina Miller’s Article 50 legal challenge. While Pannick reiterates his support for a second referendum, he concludes that, as a matter of law:

“If the UK were therefore to be faced (against its will) with a permanent backstop arrangement, the UK would be entitled to terminate the withdrawal agreement under Article 62 of the Vienna convention on the Law of Treaties.”

Ultimately, the Government has backed Brexiteer MPs into such a tight corner that they are now facing a political choice as much as a legal one. Even if the Vienna Convention route does not hold, the UK still retains the nuclear option of unilaterally tearing up the the treaty altogether if it feels the consequences of that are preferable to a permanent backstop. If the UK fails to leave at all, the political establishment will never allow the country to even get a sniff of the exit door ever again…

UK Has Unilaterally Withdrawn From 52 Treaties

With the UK staring a long Brexit delay in the face, attention has turned back to the deal and whether there are any alternative routes for the UK to unilaterally withdraw, short of simply tearing the whole treaty up. Attorney General Geoffrey Cox is updating his legal advice to take note of Article 62 of the Vienna Convention on the Law of Treaties, which allows treaties to be terminated if there is a “fundamental change of circumstances”. Is this a likely prospect?

It turns out that the UK has unilaterally withdrawn from 52 treaties in the last 30 years, according to a written question in the Lords answered by Foreign Office Minister Lord Ahmad last November. The question was asked by former UKIP leader Lord Pearson of Rannoch. Not exactly a Government shill…

That said, a House of Commons Library briefing from December was sceptical about whether the Vienna Convention could provide a way to escape the trap of the backstop. The problem for MPs is that the alternative is increasingly looking like being indefinitely trapped in the EU altogether…

Cox on Spanking & “A Little Buttock Fondling”

The PM might feel that she took a bit of a spanking from the Attorney General this morning. Which reminds Guido of an amusing anecdote. Back in 2000 defending Robin Peverett, (66), the former headmaster of Dulwich Prep Cranbrook, his barrister Geoffrey Cox said “What’s a little buttock fondling after all? It was all such a long time ago”.

This sort of thing happened all the time in my school. It was a different era when headmasters considered themselves Gods, like barristers,” he added, dismissing a reporter who posed questions afterwards as someone who “went to a little comp somewhere.” Old school Tory…

Bryant Tickles Cox

Chris Bryant got Geoffrey Cox chuckling at the Despatch Box after regaling an unexpected anecdote…

Cox’s Legal Advice: “Legal Risk Remains Unchanged”

Attorney General Geoffrey Cox has delivered his much awaited legal advice on May’s changes to the backstop, concluding that the “legal risk remains unchanged”. This is the last thing Number 10 will have wanted to see…

In Cox’s view, May did succeed in securing some legally-binding changes, he says the provisions of the ‘Joint Instrument’ “extend beyond mere interpretation of the Withdrawal Agreement and represent materially new legal obligations and commitments, which amplify its existing terms and make time of the essence in replacing the backstop.”

Cox says it does “reduce the risk” that the UK could be “indefinitely and involuntarily” trapped in the backstop but with the key caveat “at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU”.

His final conclusion remains damning: the UK would have “no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.” Game over for May’s deal?

Cox Bollocks Snow for ‘Fake News’

When Guido saw Jon Snow’s tweet he was a bit sceptical of a single source of Snow’s gaining an insight that no one else had managed. It turns out it was, to quote the primary authority, complete “bollocks”…

The Emptiness of Cox’s Codpiece

Reports from Brussels say that the Attorney General has won nothing new from the EU and thus his codpiece is empty. He’s cancelled going to Brussels today, although James Cleverly was doing his best to talk up chances of concessions this morning and The Times finds Whitehall officials slightly more optimistic. Ultimately it’s all just speculation, there is no actual news. ERGers are concerned that this is all a bit of deliberate stage management to give them less time to scrutinise whatever assurances he eventually receives from Barnier…

Cox’s Codpiece Corker

Tory Mufasa Geoffrey Cox has enthusiastically embraced the description of his backstop alteration as a “codpiece”, telling a highly entertained House of Commons:

“What I am concerned to ensure is that what’s inside the codpiece is in full working order.”

Bercow can’t help himself from ruining the joke by spelling it out afterwards…

Onasanya’s Jail Sentence ‘Not Unduly Lenient’

Attorney General Geoffrey Cox’s office has concluded that the three months Fiona Onasanya was sentenced to for lying about speeding was not an unduly lenient sentence, after a review and “careful consideration”. A spokesperson for the office said that “The threshold [to refer the case to the Court of Appeal] is a high one, and the test was not met in this case.”

Meanwhile, Onasanya has earned almost £6,000 of her generous MPs salary for the few weeks she has been behind bars, not working. By the time she gets out in April, she will have received £20,000…

Malthouse Compromise Ditched For ‘Cox’s Codpiece’

The key message emanating from Cabinet today is that the Government has predictably abandoned any attempts to press ahead with the Malthouse Compromise, instead pinning their hopes on a tweak to the backstop being enough to get a deal through instead. This is not going down well with Tory MPs…

Nonetheless speculation is mounting that Geoffrey Cox has come up with concrete proposals to take to Brussels, with talk that a deal could even be agreed in Sharm-el-Sheikh this weekend, although a legal ‘codicil’ has already been dismissed as “Cox’s Codpiece” by unimpressed Brexiteers. Meanwhile Michel Barnier has told a Spanish audience that the EU will listen to May’s suggestions for how to “tweak” the backstop but will not reopen the Withdrawal Agreement, as May promised Parliament. How long can the Brady truce continue to hold?

Government Entitled to Ask Queen Not to Give Assent to Brexit Wreckers’ Bills

Devastating argument from Policy Exchange this morning. Sir Stephen Laws QC – who was until 2012 the Government’s most senior lawyer on legislative and constitutional matters – says don’t assume that MPs could engineer a change to the law to postpone or cancel Brexit without persuading Government to acquiesce and participate in securing the change.

Attempting to change the law without the Government’s participation, he argues, could jeopardise fundamental constitutional principles based on centuries of history, especially if the Speaker dispenses with or ignores a rule that gives Government complete control over increases to public expenditure.

Sir Stephen Writes:

“If the Speaker chose to allow this rule to be dispensed with or ignored, that could have unpredictable, and potentially horrific, constitutional consequences. It could raise a question whether the Government would be entitled or might feel required to reassert its constitutional veto by advising the Queen not to grant Royal Assent to the Bill.

How should the Monarch react to such advice? The answer is not straightforward and the prospect of it needing to be considered in a real life political crisis is unthinkably awful. It is a sacred duty of all UK politicians not to involve the Monarch in politics. They have a constitutional responsibility to resolve difficulties between themselves in accordance with the rules, and so as not to call on the ultimate referee.”

If the Speaker and Dominic Grieve are going to vandalise the constitution and overturn established parliamentary conventions, don’t expect the government to just roll over. The Attorney General Geoffrey Cox will be studying this argument closely as no doubt will the Brexit sympathetic Queen. Bercow is only the Prince of Parliament, though he might not want to believe, the Queen still outranks him constitutionally. Grieve isn’t as clever as he thinks he is…

Cox’s Case for the Defence

Attorney General Geoffrey Cox has succeeded in significantly livening up the incredibly lengthy meaningful vote debate, giving a typically eloquent and impassioned case for why MPs should support the Prime Minister’s deal while taking aim at those trying to reverse the referendum. May must wish she had a whole Cabinet of Coxes. Whether it actually changes any MPs’ minds at this stage is another matter…

Cox: Backstop Would Be An ‘Instrument of Pain’ For UK and EU

Geoffrey Cox responded to Nigel Dodds with about as compelling case as you can make for the backstop. It rests on Northern Ireland firms having unparalleled access to two giant global markets and EU firms taking the Commission to court if they hold up the progress of moving from the backstop to an FTA. Guido is unconvinced, but it is worth listening to respectable Cox’s considered opinion…

Backstop Eternal

Attorney General Geoffrey Cox’s advice on the backstop…

“The protocol would endure indefinitely.”

DD: Government Must Release “Complete” Legal Advice

David Davis has added his voice to calls for the Government to release the legal advice they have received on the Irish backstop. Davis told Today that there was “no argument whatsoever” that at the very least the Cabinet should have access to the full information before making their decision on the deal, while rejecting Matt Hancock’s suggestion on Peston last night that Geoffrey Cox answering questions in Parliament would amount to sufficient scrutiny:

“What we must see is the complete legal advice, not a summary, not something that just glides and glosses over the difficult issues, but the actual legal advice.”

Interestingly, Hancock did add that it would be a “decision in exceptional circumstances for the Prime Minister”. Under the Ministerial Code, the legal advice can be released if the “law officers” i.e. the Attorney General agree to it. May herself attacked Brown and Blair for not showing legal advice they had received on the Iraq War to the Cabinet and MPs, labelling it a breach of the ministerial code. The circumstances of Brexit are at least as exceptional as those of the Iraq War…

In any case, MPs may seek to take the decision out of her hands, with Tory rebels considering supporting a humble address motion from Keir Starmer in Labour’s opposition day debate next Tuesday which could compel the Government to release the advice. If there is nothing to hide in the advice, the Government can avoid the whole row by simply agreeing to release it in full…

May Under Pressure to Reveal Full Backstop Legal Advice

The Government is facing pressure from all sides to release the full legal advice it has received from Attorney General Geoffrey Cox on the Irish backstop, with Labour, the DUP, the Lib Dems and Tory MPs all calling for the Government to publish the advice. There is no question that this is an issue of fundamental constitutional importance – Parliament and the public have a right to know.

Even Cabinet ministers are being kept out of the loop, with Michael Gove leading the calls within Cabinet for the full legal advice to be revealed. Suspicions are high that Number 10 are trying to bounce Cabinet Brexiteers including Dominic Raab over the line without letting them review the full advice. If there is nothing contentious about it then why is it being hidden from the Cabinet?

Disgruntled Cabinet ministers are complaining that every trick in the book is being used to keep the legal advice from them, from “we’re running out of time”, “you’ll wreck Brexit” and “no deal will crash the economy” to “you’ll be spat at in the street” and, best of all, “we have to keep it ambiguous to fool the Irish”The problem is that no-one believes it’s just the Irish they’re trying to fool…

‘Tory Mufasa’ To Decide Tommy Robinson’s Fate

Tory Conference showstopper Geoffrey Cox will decide Tommy Robinson’s fate after his case was referred to the Attorney General following a short hearing at the Old Bailey this morning. After reviewing Robinson’s statement the judge concluded that a thorough cross-examination was needed, which would require a different legal procedure. Robinson’s bail has been extended on the same terms as before. Cox will have to decide whether the public interest lies in pursuing the case. Cox will be reviewing the case in a legal capacity, not a political one…

Cox Rocks Tory Conference

 

Boris may have drawn the crowds while the PM got a laugh for her Dancing Queen routine, but it was Geoffrey Cox QC who comfortably stole the show at Tory Conference this year.

He was only supposed to be May’s warm-up act, but the new Attorney General’s uproarious speech had the crowd completely enraptured as he strode around the stage booming out the benefits of Brexit. Forget Mogg Mania, now everyone is Crazy for Cox…

Cox Quits Sleaze Committee

geoffery cox

Geoffrey Cox, the highest-earning MP in the Commons who earns hundreds of thousands of pounds a year for his work as a QC, has resigned from parliament’s sleaze watchdog for doing something if not sleazy exactly, definitely slack. Cox has on at least one occasion failed to register his outside earnings within the 28 days required, compelling him to resign from the Commons Committee on Standards and refer himself to the Standards Commissioner.

The Standards Committee polices the conduct of MPs and oversees the maintenance and accessibility of the Register of Members’ Financial Interests. The very same Register of Members’ Financial Interests that Mr Cox forgot to register the £325,000 he earned for 500 hours work. What a cox up…

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