25/02/2016
Adding to the growing body of evidence calling into question the legality of "Dave's Dodgy Deal", we have written evidence submitted to the EU Scrutiny Committee by Professor Sir Francis Jacobs, who adds a further note on a "legally binding and irreversible agreement".
In the context of the promise to amend the treaties, Jacobs
states that it is "difficult to see how there could be a legally binding and irreversible agreement to amend the Treaty in the future". He continues:
Any such procedure, designed to introduce, in advance, a legally binding and irreversible commitment to amend the Treaty at a future date, however the procedure is devised, would seem questionable: it would seem to be rightly open to the objection that, if effective, it would totally subvert the constitutional and democratic guarantees provided by the treaty amendment procedure laid down in the Treaty itself.
At a different level, we have
Barrister Blogger, who also tells us that, "Not only is the agreement to amend the treaties presently unenforceable in law, it faces any number of constitutional obstacles before its terms become legally binding in the sense of being enforceable in court".
I wish, though, that the diverse pundits would climb down from their obsession with the ECJ and what it might do. Disputes on the validity of an international agreement (aka treaty) lie not with a regional court but with the
International Court in The Hague. That is where the primary jurisdiction lies in respect of the
Vienna Convention (Article 66).
The matter of jurisdiction is so basic that one wonders why senior politicians such as Michael Gove allow themselves to be led into quite obvious traps, where their interventions so easily get bogged down in a welter of irrelevant detail. The question is, and should remain, whether the "treaty" (in whole or part) is valid.
Confusion over the issues allows the agents of the EU such as
Donald Tusk to blur the margins with the disingenuous comment that the "deal" could not be reversed by the European Court of Justice. And in one sense he is right. Since it is not valid and incapable of execution, the likelihood is that there will never be anything passed in front of the Court that is capable of challenge.
Barrister Blogger puts it quite nicely, explaining that there is simply nothing of substance for the court to over-rule. Asking the ECJ to over-rule the Brussels deal would be like asking our own High Court to over-rule a White Paper.
Thus, when or if attempts are made to execute any elements of Mr Cameron's deal, they will be subject to the rules and the procedures of the EU and only if then that these are breached can the ECJ intervene. As it stands, that is no measure of whether the deal is valid. But, if it is not valid, it is not binding.
All this dishonourable piece of legerdemain is doing, therefore, is bringing out figures in the legal establishment on both sides of the Channel to lie for their masters. No more should we trust the lawyers than the politicians, when all are showing an unconstrained willingness to lie and deceive.
