Coveney Begins No Deal Blame Game Already

The new PM hasn’t even been announced and Irish Deputy PM Simon Coveney is already trying to pass the buck on no deal, sticking to his line that the backstop is the only game in town so it’ll be the fault of the Brits if a deal doesn’t go through because of it. Never mind the fact that his government has already published plans for checks away from the border if there’s no deal…

Merkel: Backstop Can Be ‘Overwritten’

Merkel has given a strong hint that the EU could be prepared to move on the backstop, telling a German press conference that the backstop will be “overwritten” if alternative solutions can be found. This doesn’t actually change the EU’s position yet – as things stand the UK would still be signing up to the backstop in the legally-binding Withdrawal Agreement while the alternative arrangements would be in the non-binding political declaration. It’s still a significant softening of the EU’s rhetoric around the backstop after stonewalling the issue throughout the Tory leadership contest…

It’s good timing, the Alternative Arrangements Commission run by ProsperityUK, led by Greg Hands and Nicky Morgan, published their 268-page Alternative Arrangements Report and Protocols just yesterday. No solution for the Irish border is going to be perfect from day one but it does blow apart the fiction promulgated by May and the EU that the backstop is the only way to solve the border issue. The backstop remains by far the single biggest impediment to a sensible deal, no excuse for either sides’ negotiators not to be looking at alternative arrangements now…

Brady Resurfaces With Fresh Call to Bin the Backstop

Guido can shed some new light on the curious case of the disappearing 1922 Committee Chairman – Graham Brady has finally resurfaced several weeks after disappearing without trace following his bizarre decision to ‘recuse’ himself from the Committee to launch his own abortive leadership bid. Not a single MP came forward in his support, Guido can’t even remember him making the case for himself…

Now Brady has popped up in the foreword to the latest Policy Exchange paper by Lord Bew on the Irish backstop, calling for the next Tory leader to drop the backstop. As Brady points out, the only Brexit option to ever command a majority in the House of Commons was the deal with his amendment calling for alternative arrangements replacing the backstop. The EU are the ones chasing unicorns if they think a deal with the backstop is ever getting through…

EU Drawing Up Plans for Tech Solutions on Irish Border

The EU have been doing their bit to try to influence the Tory leadership race, insisting that they will not be changing any of the terms of the Brexit deal for any new Prime Minister who comes in. It doesn’t take a genius to work out why the EU would rather have a new Prime Minister who comes in and accepts everything they say rather than demanding changes…

Behind closed doors it’s a different story, The Sun revealed this morning that the EU is fact working on no deal contingency plans to use IT solutions to help goods cross the Irish border after Brexit. That wasn’t so hard after all, was it?

EU officials are still insisting that IT solutions won’t be enough to manage all the border issues. This is missing the point, of course no deal is not the optimum scenario if the EU won’t compromise on a deal then they will be the ones facing the choice of whether to respond to no deal in a pragmatic way, or a disruptive way. Taking no deal off the table is ultimately what destroyed Theresa May’s negotiation attempts and killed her premiership, if her successor does the same they will suffer the same fate…

UPDATE: It’s also good news for Sajid Javid who pledged to pay the EU “hundreds of millions” to help them develop tech solutions. He won’t need to bill the British taxpayer now the ever-generous EU are doing it for him…

Raab Accuses Lidington of Sabotaging Backstop Changes

Dominic Raab has done a lengthy interview with the Spectator’s Katy Balls covering everything from karate to feminism. However the moment that will raise Brexiteer eyebrows the most is when Raab directly blames Theresa May’s deputy David Lidington for sabotaging his attempts to renegotiate the backstop as Brexit Secretary:

‘I think there was a window of opportunity,’ he says. ‘The frustrating thing is that it was closed by our own side.’ Specifically, he suspects, by David Lidington, Theresa May’s de facto deputy, who held his own talks with the Irish and seemed to stop what No. 10 saw as Raab’s freelancing. ‘It wasn’t ruled out by Coveney, it was ruled out by Varadkar. The only thing that happened in between is that he met David Lidington. It’s clear what happened.’

This will do nothing to ease widespread Brexiteer suspicions that the backstop was just a ruse cooked up from the start by Theresa May’s inner circle of Remainer advisers…

McVey: No Hard Irish Border if There’s No Deal

As Barnier, Juncker, Varadkar, Coveney and the EU have all admitted on countless occasions…

Raab: More Legal Changes to Backstop or Prepare for No Deal

With the dust still settling from yesterday’s big developments, Dominic Raab is emerging as the most hardline of the Tory leadership contenders. Unlike Boris, Raab is still holding out, calling for a further “exchange of letters providing a legally binding exit from the backstop”. Can he outflank Boris on the Brexit wing of the Party?

If not he wants to use the next two weeks for “sensible conversations” with the EU about the “suite” of no deal preparations that have been put in place. The only problem with his plan is that May won’t be going anywhere if her deal doesn’t go through, and neither will the UK…

EU Proposes Invisible Irish Border Checks if No Deal

This morning the EU announced it has “completed” planning for the event that the UK leaves the European Union on WTO terms, saying that it is “increasingly likely” that the UK will leave without a deal in mid April. They have hired 2,000 new customs officers and built 20 new border posts. What has the UK done..?

Interestingly, when asked if there will be checkpoints at the Irish border, the EU said that they are “working very closely with Irish authorities to try and perform controls away from border”. The EU is happily talking about checks away from the border in the event of No Deal, but they refused to countenance those sort of alternative arrangements with the UK in the event of a deal. Guido can’t see this as anything other than blatant bad faith on the part of the EU…

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.[…] Read the rest

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