EU Referendum: and so back to work

04/02/2016

The one thing one cannot accuse the legacy media of doing, though, is inhabiting that real world. Unable to comprehend the core difference between an election and a referendum, the likes of the Telegraph still want to characterise this is a battle between political "giants". They end up, however, picking a lumbering dinosaur in the form of Nigel Lawson, as the champion of the leavers.

That this, stale, irascible figure has come to the fore again says much for the state of British politics and – especially – the nature of what is laughably called "euroscepticism". After his more recent performance, and generally, that anyone can think Lawson is a suitable ambassador for "leave" is, frankly, risible.

What one hopes will only be a temporary prominence of this lumbering dinosaur arises from the failure of Vote Leave to clean out its own stables, and dispense with the unwelcome services of two of the most divisive figures in the "eurosceptic" camp – Matthew Elliott and Dominic Cummings.

The fact that these two have been sacked as board members of Vote Leave, but are being kept on as staff - with Lawson drafted in to afford "greater supervision" - is akin to recruiting some aging beast to impose order on a crèche full of puppies.

Such an arrangement, though, is indeed said to be temporary, lasting only until Mr Cameron has been to Brussels for the February Council. Then, we are told, a more permanent nanny will be brought in to control the squabbling children of Vote Leave.

Meanwhile, the debate is being drowned out by the thunder of dropped balls hitting the ground. While the media go for the shallow biff-bam of personality politics – the only genre they are fit to handle – analysis of substantive issues goes begging. Not a single journalist has so far showed any sign of understanding the detail of Mr Cameron's renegotiation package.

One of the more egregious claims is that the Tusk proposal is a "legally binding document", a claim repeated by the Prime Minister yesterday (column 927) in what amounted as clear a lie as has ever been uttered from the lips of a British Prime Minister. He told the House:

Finally, let me be absolutely clear about the legal status of these changes that are now on offer. People said we would never get something that was legally binding—but this plan, if agreed, will be exactly that. These changes will be binding in international law, and will be deposited at the UN. They cannot be changed without the unanimous agreement of every EU country—and that includes Britain. So when I said I wanted change that is legally binding and irreversible, that is what I have got. And, in key areas, treaty change is envisaged in these documents.

Not only is the idea that the document is legally binding a lie, built into that statement is the essence of a contradiction which proves it to be. Says the Prime Minster, "in key areas, treaty change is envisaged in these documents".

The very fact that treaty change is necessary to cement in the provisions of this "settlement" means that they cannot be binding. And, since no one can guarantee the outcome of treaty negotiations still to be held, nothing dependent on them can be considered binding.

What Mr Cameron seems to be relying on is the fiction that the heads of government and prime ministers of the member states constitute an intergovernmental forum which has to power to make binding agreements. The Tusk "settlement" is then supposed to constitute a treaty (which will then, of course have to be ratified).

But, as the Vienna Convention on the Law of Treaties attests (Article 61):

A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.

In other words, no agreement can be binding if its execution depends on something outside the control of the parties making that agreement, rendering it impossible to deliver.

Furthermore, heads of government, etc., acting as an intergovernmental body, outside the framework of the treaties, cannot impose obligations on the European Union. As any good lawyer will tell you, the dictum res inter alios acta vel iudicata, aliis nec nocet nec prodocet applies (two or more people cannot agree amongst each other to establish an obligation for a third party who was not involved in the agreement).

The Prime Minister, in making his claims, is guilty of the most grievous sin of all – misleading the House. There is no half measure here. The claim that Tusk's "settlement" is legally binding simply isn't true.

Had we been blessed with a grown-up media, such issues would be addressed, but we are not dealing with adults. These are children let out of the crèche for a day, to play with things of which they know nothing - and with predictable results.

That leaves, as always, the grown-ups in the blogosphere to pick up the slack, which is our task over the next few days and weeks. It ain't going to come from the legacy media.