Trimble: UK Has Secured ‘Substantive Changes’ That Limit Backstop Impact

Good Friday Agreement architect Lord Trimble and Northern Irish constitutional expert Lord Bew have made a fresh intervention in the backstop debate, authoring a new paper, Nothing has changed? It has actually, for Policy Exchange today. Nobel Peace Prize-winning Trimble and Bew conclude that, despite the fact that there has been no textual change to the backstop itself, the Government’s Strasbourg concessions did deliver “substantive changes that will affect and limit the impact of the Irish backstop.” They agree that “the UK Government is now correct in asserting the right, in extremis, to appeal to international law under the Vienna Convention”…

Crucially, the paper explains that the EU has accepted “that the protection of the Good Friday Agreement may be entirely independent from the functioning of the Irish backstop.” Allowing the UK to leave the backstop without breaking its Good Friday Agreement obligations…

Trimble is a committed Brexiteer and Unionist, he has even gone to the lengths of launching a legal challenge against the Government to challenge the legality of the backstop under the Good Friday Agreement. The fact that he is now satisfied that there have been enough changes to limit the potential negative consequences of the backstop may well go some way to reassuring other Unionists and Brexiteers…

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’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?

Hardline Remainers Come Out Against May’s New Deal

While Brexiteers are keeping their own counsel until the Attorney General and the Star Council of Brexit lawyers come back with their formal legal opinions on May’s latest offering, Remainers have wasted no time in coming out to batter her new deal. Despite Brexiteers being the ones always branded headbangers, as usual it’s the Remainers who kicking up a fuss while Brexiteers are open to compromise…

Dominic Grieve has said this morning that it “doesn’t make any significant difference”, digging in on his fundamental position that he won’t back any deal unless May commits to holding a second referendum on it. Sam Gyimah dismissively says “We’re being played!” while comparing Brexit to Iraq. The mercurial Damian Collins also declared that he wouldn’t be budging last night…

There are still niggling concerns over what May has secured. Most pro-Brexit lawyers Guido has spoken to so far believe that the UK’s unilateral declaration will carry weight in future legal disputes if the EU does not raise any formal objections to its inclusion alongside the rest of the Treaty, there are still doubts about what position it leaves the UK in overall. Varadkar once again displayed his ham-fisted lack of political judgement with a bullish tone at his press conference this morning…

May said last night that the changes guaranteed that the backstop would not become the “template” for the future relationship, as EU negotiators boasted after the deal was first agreed. Ultimately MPs will be making a political judgement as much as anything today. May’s changes are legally binding, but are they enough? Does the risk of an even softer Brexit or no Brexit at all justify voting for the deal as the least worst option still available? Nick Boles’ ego is now so large that he is already threatening Brexiteers to “take the win” or else “we will do whatever it takes to frustrate you.” Brexiteers are still reserving their judgement, Remainers have showed their cards and made clear their only interest now is sabotaging Brexit…

France Unveils Technological ‘Smart Border’ Solution

As any self-respecting Brexit pundit will be more than happy to remind us, smart borders featuring mythological things like remote customs declarations and automated number plate checking are simply “unicorns” which aren’t likely to be possible for hundreds, if not thousands of years. They certainly won’t be suitable for any post-Brexit border crossings…

Which is why French Customs have just unveiled a “smart border” – an “innovative technological solution” which will be implemented on 29 March 2019 “at all points of entry/exit to/from the Calais region and at border points from Channel-North Sea to maintain smooth circulation of your goods.” What are they thinking wasting their time on this? If only they’d listened to the commentariat…

The French say their system is based on three principles, which are obviously from the realms of pure fantasy:

  • The early completion of customs procedures before arriving at the border by giving the bar code of the customs declaration to the driver.
  • The identification of the mean of transport and the bar code of customs declaration of transported goods.
  • The automatic sending of the crossing notifications to the customs declarant to avoid stopping the HGV.

The bar codes are linked to the number plates of the HGVs so hauliers have no need to stop, avoiding delays to the vast quantities of goods that pass between the UK and France every day. But of course, none of this could ever possibly work to monitor the tiny quantities of agricultural products and construction materials that cross the Irish border…

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?

Trimble Serves Legal Notice on Government Over Backstop Breaking Good Friday Agreement

Lord Trimble, the Nobel Peace Prize-winning architect of the Good Friday Agreement, has formally commenced legal proceedings against the Government to challenge whether the backstop is illegal under the Good Friday Agreement. Guido can reveal the formal letter sent to the Government Legal Department ahead of the Judicial Review challenge, which the Government must respond to by 22 February. The three possible defendants are identified as Karen Bradley, David Lidington or the Prime Minister herself…

The case will argue that the backstop breaches two key laws – the Northern Ireland Act 1998 and the Union of Ireland Act 1800 – as well as the Good Friday Agreement itself. Under the Northern Ireland Act and the GFA, they say arrangements to avoid a hard border should have been negotiated bilaterally at the British-Irish intergovernmental conference. The EU has already allowed the UK and Spain to sign a bilateral agreement regarding Gibraltar, why can Northern Ireland not be resolved bilaterally as well?

The crowdfund for the challenge to the backstop is nearing its initial target. If Guido readers want to support the legal challenge too they can donate here

Top Law Firm Including Former Senior EU Lawyer Says Backstop is Illegal Under EU Law

It’s not just the legality of the backstop under UK law and the Good Friday Agreement that is being challenged, now a leading legal firm has said that the backstop is also illegal under EU law.

HerbertSmithFreehills state in their latest ‘View From Brussels’ briefing that:

“on the basis of the EU’s own view of what is legally allowed under Article 50 and on the basis of which the negotiations proceeded, the backstop in its present form is illegal as a matter of EU law. The Attorney-General of the UK came to a similar conclusion in paragraph 17 of his advice to the government of 13 November 2018. It could also be argued that the backstop is inconsistent with the aim of the Treaty on the European Union to promote peace (expressed in its Article 3) since it is inconsistent with the institutional provisions of the Belfast/Good Friday Agreement and therefore undermines it.”

There is also a formalised legal procedure in the EU for ensuring the legality of an envisaged international agreement set out under Article 218(11) of the TFEU, which could force the ECJ to give a ruling before 29th March. The backstop is only being kept alive by bluster from the EU – and the acquiescence of the UK…

h/t Henry Newman

UPDATE: One of the two co-authors of the briefing note, Eric White, was the head of the Trade and WTO Group of the European Commission’s Legal Service until two years ago. If even he thinks it’s illegal…

Trimble Taking Government to Court Over Backstop Breaking Good Friday Agreement

Lord Trimble, one of the architects of the Good Friday Agreement, has announced plans to take the Government to court over the Irish backstop contravening the terms of the Good Friday Agreement. The former Northern Ireland First Minister received the Nobel Peace Prize for his work in securing the Agreement…

Legal experts believe that the backstop could well be in violation of the Principle of Consent enshrined in the GFA. The Government will now face a judicial review seeking to ensure the backstop’s removal from the Withdrawal Agreement. The UK – and the EU – negotiators cannot simply swat this aside

EU Negotiating Intransigence Always Precedes a Flip-Flop

The British commentariat has for the past three years delighted in reporting EU negotiating position as if it is an immovable object, the revealed gospel itself. That’s not what their track record in major negotiations suggests…

In 2010 it was almost universally received wisdom in the media and markets that there would be no Greek bailout. All the top figures vigorously denied it was even a possibility, as the Maastricht Treaty specifically precluded such a rescue package. As the EU kept reminding us…

  • The European Central Bank’s chief economist Jurgen Stark said that Greece does not meet the terms for a bailout, and that “The Treaties set out a ‘no bail-out’ clause, and the rules will be respected. This is crucial for guaranteeing the future of a monetary union.”
  • European Monetary Affairs Commissioner Joaquin Almunia insisted there was “no special EU plan for Greece”
  • Angela Merkel said “We have a Treaty under which there is no possibility of paying to bail out states.”

Of course, later in 2010, Greece received €310 billion in bailout money, despite that being illegal under treaty…

Guido would gently suggest to political pundits that negotiations are negotiations, and portraying the word of one side as if it is the word of the almighty, especially in the context of a contradictory track record, is beyond daft. The EU claims that the backstop is unlikely to come into play, so a time limit on something that is unlikely to happen is not a reason for the EU to force a disorderly Brexit. The EU consistently bends the rules when they come under pressure…

How Top Tories Responded to Brady’s Victory

Top Tories gave their reaction to last night’s votes on Newsnight – Graham Brady insisted that it was the Commons that had given May a mandate, not himself. A forceful Steve Baker told people to “wake up to the reality” that “that backstop is not getting through the House of Commons, not ever.” Boris reiterated that his support for May’s deal was conditional on the backstop being removed and replaced with alternative arrangements.

Liz Truss added that yesterday’s results were a “significant way forward” that showed that “there is a majority for the PM’s deal plus some changes to the backstop.” The EU have already launched a media blitz to insist it’s not possible but behind the scenes they have no choice but to digest the significance of the result…

Meanwhile on Planet Anna Soubry, it was all “deeply concerning” as she saw her party “drifting over to the right”. Cheer up…

Bercow Selects Graham Brady’s Amendment

After much speculation as to whether he would choose to deliberately ignore it, John Bercow has decided to call Graham Brady’s amendment on modifying the Irish backstop, as well as all the other major amendments that were expected including Yvette Cooper’s Brexit blocker. Even Bercow didn’t have the temerity not to call such a pivotal amendment – and one with Government support…

This is the order the amendments will be voted on, starting at 7pm:

  • (a) Jeremy Corbyn – calls on the PM to rule out no deal while, predictably, keeping all options on the table
  • (o) Ian Blackford – notes that the SNP don’t like Brexit, calls for no deal to be ruled out and Article 50 extended
  • (g) Dominic Grieve – suspends normal Parliamentary procedure on six dates in February and March allowing MPs to hijack Brexit
  • (b) Yvette Cooper – suspends normal Parliamentary procedure on 5th February to allow MPs to bring a Brexit-blocking Bill in
  • (j) Rachel Reeves – calls on the PM to seek an extension to Article 50
  • (i) Caroline Spelman – notes that Parliament rejects leaving without a deal
  • (n) Graham Brady – calls for the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border

Labour have so far indicated that they will back Grieve, Reeves and Spelman as well as Cooper. All of which are aimed at delaying and frustrating Brexit, the People’s Vote are even running sponsored ads on Twitter promoting them…

However, of all the amendments, only Grieve and Cooper have any legal effect as they would actively change the Standing Orders of the House, upending centuries of precedent. All the others, including Brady, are only statements of the Commons’ preferences. Brexiteers are not committing to back May’s deal by voting for Brady, but they will be bolstering the country’s negotiating position…

‘The Malthouse Compromise’: Leavers and Remainers Unite Behind Brexit ‘Plan C’

In an unexpected development late last night, reports began to leak out of a secret compromise hammered out between Brexiteers including Jacob Rees-Mogg and Steve Baker and Remainers including Nicky Morgan and Stephen Hammond. Even Remain-leaning Government ministers Robert Buckland and Kit Malthouse are on board, with Baker crediting Malthouse for bringing the warring factions together as he confirmed the reports which somehow managed to remain secret until last night. Remarkable given the range of people involved…

According to the messages sent to Tory MPs by Nicky Morgan last night, The ‘Malthouse Compromise’ would’:

  • Replace the backstop with the alternative protocol from the ‘Better Deal’ report launched last month, which would be “acceptable indefinitely”.
  • Extend the transition period for up to a year until the end of 2021 to give time for a smooth transition to a new relationship (Plan A).
  • Include a “triple safety net” around exiting with no Withdrawal Agreement:
    • Continue to offer ‘Plan A’
    • Agree a standstill transition period with the UK paying its financial commitments
    • Offer a GATT 24 WTO-compliant standstill on trade with no tariffs, no quantitative restrictions and no new barriers for execution” to come into force at the end of 2021 if the future relationship has not been agreed by then

Morgan says that “this would allow time for both parties to prepare properly for WTO terms, but also provide a period in which the parties could obviate this outcome by negotiating a mutually beneficial future relationship”. EU citizens’ rights would be guaranteed in all circumstances.

The big question is how this plan relates to today’s Parliamentary action. There are no amendments specifically related to it for MPs or even the Government to get behind, but the broad coalition of support behind it makes it impossible to ignore. Guido understands that Downing Street is interested in the proposals but has concerns about technical aspects around SPS checks…

Brexiteers remain divided over whether to support Sir Graham Brady’s amendment on renegotiating the Irish backstop, despite Theresa May giving it her official backing last night. Liam Fox confirmed on Today that the Government would be seeking to reopen the legal text of the deal if the amendment passed, potentially reassuring Brexiteers that it is not simply going to be ‘Operation Figleaf Mk II’. Guido cannot see any good reason for Brexiteers not to support Brady’s amendment, it is compatible with the ‘Malthouse Compromise’ and the best chance of changing the worst aspect of May’s deal…

UK Chamber of Shipping Calls for Backstop to be Binned

The UK Chamber of Shipping has become the first major business group to come and officially call for the backstop to be binned this morning, after Guido exclusively revealed on Friday that a major industry group was planning an intervention this week. Writing in The TimesChief Executive Bob Sanguinetti says “the government and the EU must agree to reopen negotiations and remove, or at least introduce a time limit for, the Irish backstop.” He adds: “This is the only way the withdrawal agreement can succeed.”

Sanguinetti also rebuts the idea that the EU will never agree to this, highlighting Michel Barnier’s comments from last week where he undermined the whole rationale for the backstop:

Those who criticise the idea of amending the backstop will rightly question whether the EU would agree to it. However, it won’t have escaped the notice of many in the business community when, last week, Michel Barnier said that “we will have to find an operational way of carrying our checks and controls without putting back in place a border”.

He went on to say his team had studied how customs procedures and controls “could be made paperless or decentralised, which would be useful in all circumstances”. He was referring to Ireland but observers will remember how he dismissed these very same proposals when they were proposed by Britain.

It appears then that there is common ground after all. And maybe — just maybe — a sensible resolution can be found. If parliament is able to unite around this key demand it will put tremendous pressure on the EU to agree.

He is right – momentum is shifting against the backstop and the EU will not be able to carry on like it’s business as usual if Graham Brady’s amendment is passed tomorrow. The real reason why the EU won’t budge yet is because they’re still holding out hope that the Brexit-wreckers can derail the whole thing…

Brady “Hopeful” of Getting Backstop Amendment Through

Sir Graham Brady is spending today pitching his backstop amendment to MPs, telling Sky News that while he has not yet been told whether the Government will formally support the amendment, he is “hopeful” of getting “nearly all if not all” Tory MPs on board as well as some Labour moderates. He also warns against the Cooper/Boles and Grieve amendments designed to kick Brexit into the long grass. “Delay is the enemy of decision”…

Irish Government Accused of ‘Weaponising’ Good Friday Agreement

Remain voting crossbench peer Lord Bew, whose contributions to the Good Friday Agreement were acknowledged in his appointment to the Lords, has accused the Irish Government of ‘weaponising‘ the Northern Irish peace process.

“UK Government has allowed the Irish Government to weaponise the 1998 Good Friday Agreement in a way that prevents compromise on the Backstop”

Lord Bew, who voted Remain, has written a briefing note for Policy Exchange in which he argues that the Northern Irish backstop endangers the peace process and has been predicated on a “partial reading of the Good Friday Agreement” which does not take into account the consent of the Northern Ireland Assembly.

He argues that in order for the Good Friday Agreement to be respected, and peace preserved, it is crucial that “the Backstop is made temporary – in explicit and legally binding terms.” Something for MPs on all sides of the house to think about…

Now Varadkar Threatens to Put Troops on the Irish Border

The EU’s calamitous attempts to maintain even a semblance of unity on the Irish backstop have reached farcical new levels today with Leo Varadkar now threatening to put Irish troops back on the border in the event of a no-deal Brexit, despite having again dismissed the need for a hard border just three days ago. There is no way Varadkar will allow himself to become the Irish Prime Minister who put troops back on the Irish border. Momentum is starting to shift firmly against the backstop and the EU are losing the plot. This is a desperate attempt to talk tough, instead the EU just look like headless chickens…

Major Industry Group Preparing to Call for Backstop to be Time Limited or Scrapped

Guido can reveal that at least one major industry group is planning to come out early next week and call for the backstop to be scrapped or substantially amended to include a short time limit. The industry is closely linked to Brexit issues and the business group which represents it is intending to call for negotiations on the backstop to be reopened in order to get a “sensible resolution” to the Brexit process.

An industry insider told Guido:

“The withdrawal agreement without the backstop would be a good negotiating result for the U.K. It delivers the Brexit that many Leavers want, and is the only way to guarantee No Deal is taken off the table. So the removal of the backstop could be the cause that finally unites Parliament. Barnier and the Commission have accidentally shown they agreed with David Davis all along. There does not have to be a hard physical border with Ireland, and Max Fac is not ‘wishful thinking’ but a common sense approach. This is the best chance all sides have to a sensible resolution.”

After the EU’s torrid week where they fatally undermined their own rationale for needing the backstop at all, this is looking like an increasingly viable path to a workable deal. Jacob Rees-Mogg and Boris have hinted that they might be prepared to come round to the deal if the backstop was substantially altered or removed, and it has been the DUP’s main demand for months.

Significantly, Tory backbench chief Sir Graham Brady tabled a new amendment last night with the backing of Remainer May ally Damian Green, Andrew Murrison and all the officers of the 1922 Committee, which:

“requires the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border; supports leaving the European Union with a deal and would therefore support the Withdrawal Agreement subject to this change.”

There will no doubt be plenty of huffing and puffing from the EU side about how changes aren’t possible, but if this amended deal is approved by the House of Commons, the EU will inevitably come under serious pressure to modify its own position. This could finally be the route that gets the UK out of the exit door on time…

EU Cornered as Backstop Sham Starts to Unravel

The EU’s long-running duplicity over the Irish border has finally come to a head this week with the Commission wrapping itself up in knots trying to maintain its spurious position on the backstop after Commission Spokesman Margaritas Schinas caused a major fuss on Tuesday by saying that the EU would force Ireland to erect a hard border in the event of no deal.[…] Read the rest “EU Cornered as Backstop Sham Starts to Unravel”

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