Top legal opinion: It’s the EU which has broken international law, not the UK

For months the EU has been in material breach of its obligations under the Withdrawal Treaty

© Brexit Facts4EU.Org 2020

The EU pays scant regard to its own laws, let alone its international obligations

Facts4EU reveals the top legal advice which the UK Government has ignored

From the Editor

The following Brexit Facts4EU.Org article and report is important. The Government's actions this week have seriously damaged the reputation of the United Kingdom - at home and internationally. It is of course unsurprising that the EU have immediately started exploiting this for their own purposes. More worrying are the statements from further afield, including those from senior members of the US Congress.

The Government's handling of this is catastrophic and must be addressed urgently

It is essential - in our view and that of other serious Brexit organisations - that the Government now listen to the legal advice which they have had for months. They must immediately explain that action is being taken because the EU is in serious and material default of its obligations under the Withdrawal Treaty. It is the EU which is in breach, not the United Kingdom.

We are aware of meetings which will take place in Westminster in the coming days. We urge all MPs, and the Government, to consider the facts and the arguments carefully. An urgent and substantial refinement of the Government's message is required forthwith. We propose the following:

"The EU has been in default of its obligations under the Withdrawal Treaty since it was signed and has in effect broken international law.

"The UK Government is left with no choice but to repudiate the Withdrawal Treaty and pass legislation to mitigate the effect of the EU's breaches, for the sake of the citizens of the UK and the EU27, and to uphold the principles of international law."

On Tuesday in Parliament, during a debate on an urgent question, a Government Minister who voted Remain in the EU Referendum made an extraordinary statement.

Q: Sir Robert Neill MP (Bromley and Chislehurst, Conservative)

“…will he assure us that nothing that is proposed in this legislation does, or potentially might, breach international legal obligations or international legal arrangements that we have entered into?”

A: The Secretary of State for Northern Ireland (Rt Hon Brandon Lewis MP)

“I would say to my hon. Friend that yes, this does break international law in a very specific and limited way. We are taking the power to disapply the EU law concept of direct effect, required by article 4, in certain very tightly defined circumstances. There are clear precedents of this for the UK and, indeed, other countries needing to consider their international obligations as circumstances change. I say to hon. Members here, many of whom would have been in this House when we passed the Finance Act 2013, that that Act contains an example of treaty override. It contains provisions that expressly disapply international tax treaties to the extent that these conflict with the general anti-abuse rule…”

Hansard, 08 Sept 2020, Volume 679

Brexit Facts4EU.Org Summary

Legal arguments showing how the EU has broken its own treaty with the UK

  • Essential condition of participating in Withdrawal Agreement (WA) : to secure a free trade agreement (FTA)
  • The EU has been acting in breach of a material term of the WA by denying the UK an FTA
  • The EU has attempted to impose wholly unreasonable restrictions on the UK which no other country would accept
  • The treaty was therefore entered into by the UK on a false premise from the EU
  • The EU has breached its legal obligation to act in good faith
  • The WA breaks the terms of the Good Friday Agreement
  • The WA is in breach of the ECHR principle of the right to vote
  • The WA is in breach of the UN Charter's principle of “self-determination”, its most important tenet
  • The UK Government must now pass an Act of Parliament superseding and revoking the WA

It’s the EU which has already breached the terms of the Withdrawal Treaty

On 11 July 2020 Brexit Facts4EU.Org reviewed and published the legal arguments contained in a 102-page paper which was presented to Government. The arguments were 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.

Their conclusions were stark.

  1. The UK as a state retains its sovereign right to withdrawal from the EU, which is an international organisation
  2. 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
  3. The Protocol and other aspects of the WA are incompatible with the agreement intended for the end of 2020
  4. 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
  5. The Protocol is in breach of the ECHR principle of the right to vote
  6. The UK must exercise its right to suspend and terminate the WA obligations
  7. 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

The detail of the legal arguments are best read in full in the CBP paper [PDF], starting on page 68. Of necessity this Brexit Facts4EU.Org article can only present a summary together with key points from the document.

Right: Barnabas Reynolds, Partner at Shearman and Sterling, and one of the report's authors

Below we present key excerpts from the report

“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.”

If the EU refuses a mutually beneficial future arrangement, then the UK should:

  1. Treat the Withdrawal Agreement and Protocol as no longer having any legal force
  2. 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
  3. Cease to make payments to the EU under its provisions
  4. Treat EU citizens resident in the UK unilaterally in a manner consistent with the UK’s legal framework

It should be noted that since the above report was written the EU has continued to act in bad faith. It is our understanding that the report's authors now see little alternative but to move to revoke the Withdrawal Treaty unless there is a very rapid and fundamental shift in EU policy.

Big problem for the EU: Their signing of the Withdrawal Treaty committed them to the following:

“The Union and the United Kingdom shall use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration of 17 October 2019 and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period.”

- Article 184

Observations

The statement of Government Minister Brandon Lewis - former close ally of Theresa May - on Tuesday in Parliament is at odds with the legal advice above. We can only guess at the reasons for this catastrophic error which has damaged the reputation of the United Kingdom at home and around the world - totally unnecessarily.

It has been our considered opinion since we started researching five years ago that the EU would never act in good faith in negotiating a sensible trade deal with the United Kingdom.

On the morning of the 24th June 2016 when the result of the UK's EU Referendum was announced, the then President of the EU Commission, Jean-Claude Juncker, proclaimed "This will not be an amicable divorce." It was obvious from that moment on that the agenda of the unelected EU superstate-fanatics in Brussels would be to punish the British for voting to leave, no matter what. We have stated this so many times we are almost embarrassed now to repeat it, but we must.

We submit that the EU have not only failed to act expeditiously, but have placed every conceivable obstacle in the way of any normal agreement being reached. As such, they have not acted in good faith and we consider them to be in serious and irredeemable material breach of their obligations. The United Kingdom Government is therefore entitled to consider that the EU have de facto reneged on the Treaty they signed and that the EU are in default.

This is the message the Government should be promulgating at home and internationally, not the nonsense we heard in the Commons on Tuesday.

The EU has broken the terms of the Agreement it drafted and signed

The EU still has the option of offering the UK a 'Canada+++' agreement, which EU Council President Donald Tusk and other EU figures proffered in 2018. Since the EU does not seem interested in a genuine trade deal with the United Kingdom along the lines of trade deals they have agreed with other countries, we must assume that all of their negotiations with the UK have been conducted in bad faith.

Mr Johnson's Government must now proceed on the basis that the EU has broken international law and that the Withdrawal Agreement has no validity.

Most importantly it must get this message out there now.

Finally, we must say to the Remainer rump of holier-than-thou politicians, exemplified by Theresa May in Parliament on Tuesday, that had it not been for their crass incompetence and wilful obstruction of the democratically-expressed will of the British people to leave the EU, we would not be having to clear up their mess now.

Finally, please, please support our work. For over four years Facts4EU.Org has been the most prolific researcher and publisher of Brexit fascts in the world. Quick, secure and confidential donation methods are below. We can't keep doing this without you, and we still have so much to do to ensure a fully-free, independent and sovereign United Kingdom as soon as possible. Thank you.

[ Sources: Hansard | The lawyers from the CBP | EU Commission ] Politicians and journalists can contact us for details, as ever.

Brexit Facts4EU.Org, Thur 10 Sept 2020

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