Richard North, 28/02/2016  
 


An insight into the extraordinary behaviour of Foreign Secretary Philip Hammond is given in the Mail on Sunday, which tells us that he launched into a tirade of "foul-mouthed abuse" at Bill Cash. This apparently arose when Cash published confidential advice from the Legal Counsel to the European Council concerning "the new settlement for the United Kingdom within the European Union".

This advice discusses the legal nature of the settlement, and addresses the question of whether it is legally binding. And in convoluted, opaque reasoning, it concludes that the provisions are "legally binding", by virtue of the Article 11 of Vienna Convention of the Law on Treaties .

Effectively, what the Counsel is saying is that the document is binding by virtue of the parties having signed it, signifying their willingness to be so bound. It does not, says the Counsel, "require any formality such as signing or notification of having accomplished a formal ratification or another procedure in accordance with constitutional requirements".

Such is the discourse that passes between high officials of state and for ordinary people, the normal response to such abstruse technicalities might be a tedium-induced coma. So, when Mr Hammond is moved to deliver a tirade of abuse when it is published (albeit on an obscure Parliament site), we need to sit up and take notice. This is the response of a man with something to hide.

And indeed, there is much to hide – not least, as we pointed out at the time the document was published, that the Counsel was confirming that Mr Cameron's treaty was an intergovernmental agreement, subject to the Vienna Convention.

This is a point of huge significance and is one which has not fully registered will all manner of pundits, amongst them being Michael Gove – whose comments on the ECJ are thus irrelevant – as pointed out by Booker is this week's column. The arbiter of international agreements is not the ECJ but the International Court of Justice at The Hague.

Once the primacy of the Vienna Convention is recognised (as is helpfully the case in the Counsel's opinion), then all manner of issues come to the fore. Amongst those are the provisions of Articles 34 and 61 which impose tests as to the validity of treaties in general, and thereby specifically to Mr Cameron's treaty.

By reference to the Convention, on two grounds - that it imposes obligations on third parties which are not party to the agreement and that the signatories are making commitments which are impossible to deliver – the treaty cannot be valid. And, despite the narrowly focused comment on the binding nature of the treaty (by virtue of Article 11), any treaty which is invalid cannot possibly be binding.

Doubtless, this is a conclusion that Mr Hammond does not want people to draw, and the Counsel's opinion takes us closer to making it. That may be the explanation for the Foreign Secretary's temper tantrum.

Certainly, Hammond – alongside his master, David Cameron – needs to hide this critical weakness. If it was more generally recognised that the Prime Minister's flagship treaty was almost totally devoid of substance, then the entire "remain" campaign would start to unravel.

It was the very fact that there is so little of substance to this settlement that we believed that Mr Cameron would not dare to put it to the country in a June referendum.

But now, it seems, we were not the only ones to hold such reservations. According to the Sunday Times, both Cameron and George Osborne ignored advice from Lynton Crosby, to dismiss what was being offered by Brussels as inadequate and to delay the referendum until 2017.

A senior Tory source is cited as saying that, "Lynton was advising Dave and George to rip up the deal in Brussels and kick it all into 2017. His advice was to go to the summit, shout that it's rubbish, then spend another year renegotiating".

That was certainly our expectation, and it does explain Mr Hammond's sensitivity. It would also explain the apparent determination of the "remain" campaign to take the deal off the agenda, and bury it in a welter of trivia – distracting the media and pundits from the fundamental weakness of their pitch.

Predictably, that includes an attack dog approach, where we learn that Mr Cameron is to publish this week a 30-page dossier accusing leavers of adopting 25 different positions on what Britain's post-Brexit relationship with the EU should look like. A senior government source is cited as saying: "They have had more positions than the Kama Sutra".

Never mind that the official Tory party is blurring the issue with their lies – admirably recounted in a piece by Lost Leonardo. We are thus confronted with the core weakness in the "leave" campaign, in what amounts to a continuing and unnecessary open goal.

To win this referendum, all we need is to focus on three things: the fragility of Mr Cameron's deal, which is even easier to debunk now we have the opinion of the European Council's counsel. We then need to offer a better deal than is available through membership of the EU, and then reassure voters that this is safe and achievable - the open DOR strategy.

Perhaps it was the disarray in the "leave" camp which convinced Mr Cameron that he could get away with an early referendum, bouncing us into a rushed contest in the hope that we would vote for the sizzle and not the sausage. For, once it is fully realised that the Prime Minister has come away from Brussels with virtually nothing, the result can only be a resounding "leave" victory.






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