“EU breached Withdrawal Agreement, UK must revise or revoke,” say lawyers
How to tear up the Withdrawal Agreement and Political Declaration – the legal case
© Brexit Facts4EU.Org 2020
An important Brexit legal paper, freeing the UK from EU control,
summarised for everyday readers by Brexit Facts4EU.Org
In this report we summarise the case for revoking the Withdrawal Agreement (WA) and Political Declaration (PD) first agreed by Theresa May and her civil servant Olly Robbins in September 2018. The subsequent Withdrawal Bill was then signed by Boris Johnson on 24 January 2019, after a change to the Northern Ireland Protocol.
Brexit Facts4EU.Org has reviewed the legal arguments contained in a 102-page paper published by the new think tank named the “Centre for Brexit Policy” on 11 July 2020. The arguments are written by some of the country’s top lawyers experienced in these matters, such as Martin Howe QC, Chairman of Lawyers for Britain, and Barnabas Reynolds, a Partner at Shearman and Sterling, amongst other experienced lawyers in EU matters.
Brexit Facts4EU.Org Summary
The fundamental legal arguments for revoking the Withdrawal Agreement
and Political Declaration in a legally compliant manner
Below we quote from the legal summary contained within the CBP Paper “REPLACING THE WITHDRAWAL AGREEMENT - How to ensure the UK takes back control on exiting the transition period”
- The UK as a state retains its sovereign right to withdrawal from the EU, which is an international organisation
- When the UK exercised its right to leave, it participated in the WA process on the basis of an essential condition: agreement on a future permanent arrangement with the EU that enshrines UK sovereignty and secures an FTA
- The Protocol and other aspects of the WA are incompatible with the agreement intended for the end of 2020
- The EU has been acting in breach of a material term of the WA, meaning that the treaty was entered into on a false premise
- The Protocol is in breach of the ECHR principle of the right to vote
- The UK must exercise its right to suspend and terminate the WA obligations
- The UK must subsequently pass an Act of Parliament superseding the WA, in line with Parliamentary Sovereignty under Section 38 of the Withdrawal Agreement Act 2020
The full legal argument for tearing up the WA and PD
As for the rest of the legal arguments, they are best read in full in the CBP paper, starting on page 68. Of necessity this Brexit Facts4EU.Org article can only present a summary together with key points from the document.
Right: Barnaba Reynolds, Partner at Shearman and Sterling, and one of the report's authors
The process from now until 31 December 2020
The CBP advocates a course of action from now until the end of the year. Below we present key excerpts.
“As can be seen, the key elements of the Withdrawal Agreement including the Northern Ireland Protocol are incompatible with UK sovereignty if continued into the future and should operate merely as a steppingstone to an end of year long-term relationship between the UK and the EU.
“The EU has seriously breached the agreement, even as it stands, since it has been structurally unable to engage in meaningful negotiations (for what is now the majority of the intended negotiation period) towards a sovereign outcome for the UK.
“The UK therefore needs to prevail on the EU to agree to remove the sovereignty-incompliant elements of the WA and the Protocol or be ready to repudiate the arrangement.”
As a result, the UK’s offer should be as follows:
- A mutually beneficial long-term trade deal which respects UK sovereignty, covering both goods and services
- Suitable arrangements on security that respect the UK’s sovereignty
- Warm words on defence, preserving the UK’s ability to act in its own interests at all times
- Sovereign arrangements for EU access to UK fishing waters on the basis of reciprocity, capable of being re-calibrated and ultimately terminated at will by the UK
- Making the remaining payments under the financial provisions in the now defunct Withdrawal Agreement, but subject to a cap
- Alternative Arrangements or Mutual Enforcement, as set out above, for the North-South border on the Island of Ireland
If the EU refuses a mutually beneficial future arrangement by the end of 2020, then the UK should:
- Treat the Withdrawal Agreement and Protocol as no longer having any legal force
- Implement Alternative Arrangements for the North-South border on the Island of Ireland, indicating to the EU that the Government is prepared to negotiate Mutual Enforcement instead, if preferred, from the end of 2020
- Cease to make payments to the EU under its provisions
- Treat EU citizens resident in the UK unilaterally in a manner consistent with the UK’s legal framework
This paper, which was predominantly written by expert lawyers, in effect proposes the tearing up of the WA and PD. It pays lip service to a new agreement being negotiated with the EU, but we cannot imagine that the intelligent people who wrote it actually believe that the EU would ever agree to that.
In short, the paper provides a road map to tearing up the abomination that is the WA and PD, based on the EU being in breach of its obligations.
There is much else in the paper which we have not summarised, in order to ensure that this article is read by the widest number of people. Some of the Brexit Facts4EU.EU.Org team have now read the paper from cover to cover twice. We will be amongst the very few who have.
There is no doubt that this paper contains important legal arguments justifying a revocation of the WA and PD, and we welcome it on that basis. In the interests of remaining positive, we will not comment on certain areas in the paper with which we disagree. Neither, for the avoidance of doubt, will we comment on the fact that we, as the organisation with the largest repository of Brexit facts in the world, (the Brexit Index), has had no approach from the CBP, and nor were we given prior notification of the preparation of this paper.
© Brexit Facts4EU.Org 2018
The only change to the abomination that was Mrs May’s Withdrawal Agreement after Boris Johnson became Prime Minister was the change to the N.I. Protocol – all other appalling provisions of that Treaty remained intact. Many of those who supported Boris Johnson and the Conservative Government agreeing this Treaty in November last year and signing it in January this year are now advocating and promoting that the WA and PD be revoked.
Brexit Facts4EU.Org’s repeated repudiations and rejections of both versions of the WA and PD, starting back in September 2018 when they were first published, have now been entirely vindicated by this latest report and its legal conclusions.
Now we need the political will
We are sure that the Prime Minister and his team will be digesting this report and we very much hope that it influences policy. We must extricate ourselves from this awful treaty as soon as possible.
Finally, summaries like the one above take time. Please donate today to our work, so that we can continue to bring you information like this. Quick and secure donation links are below. The vast, vast majority of our published work is original, based on our own research. We do it as part of the fight to achieve a fully-free and independent United Kingdom. Thank you so much if you can help us. We rely 100% on donations from readers like you to keep going.
[ Sources: Centre for Brexit Policy paper 11 July 2020 | Barnabas Reynolds ] Politicians and journalists can contact us for details, as ever.
Brexit Facts4EU.Org, Sat 18 July 2020
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