Richard North, 07/11/2017  

Yesterday, supposedly, was day 500 since the referendum, with another 509 days to go before Brexit day. It is a pity that there aren't a thousand days. Then we would be exactly half way. Sadly, that degree of symmetry rarely happens in real life.

Anyhow, give or take a week or so, we're as close to half way as makes no difference. From the state of the debate and the lack of progress in it, though, one might think we were still on day zero. As always, we seem locked in that grotesque version of Groundhog Day which has us endlessly recycling the same old arguments without ever reaching a conclusion.

Certainly, yesterday had that feel. It started off with the BBC (wrongly) instructing us about the status of WTO rules. It then moved on to a speech by the Prime Minister that was so devoid of content that it sounded just like every other speech that she has ever made. And we finished up with the debate in the Commons on EEA membership.

If there was a common theme, in a crowded day that had much more than these three events to occupy us, it was one word – arrogance.

The arrogance on the part of the BBC, and in particular the political correspondent, Alex Forsyth, was in setting themselves up as the supreme arbiter of a disputed question, then to get the explanation wrong, followed by a "clarification" which was also wrong.

The question, subjected to a "reality check" by the BBC, was whether, as has been variously asserted, the UK trades with "the rest of world" (non-EU countries) on WTO rules. "Leading Brexiteers", we were told, "say failing to reach a deal would not be disastrous. They have said the UK could revert to rules set by the WTO, and have claimed that's how we currently trade with the rest of the world".

Initially, as published, the "reality Check verdict" blandly informed us that the "leading Brexiteers" had got it wrong. According to Alex Forsyth, "the UK trades with only 24 countries under WTO rules only. With 68 others it has, as part of the EU, agreements either fully or partly in place which enable trade on better terms".

Amongst the 24 countries listed were the United States, China and New Zealand. And in this, of course, the BBC was wrong. These and all the other countries of the 24 have actually concluded with the EU complex networks of treaties, outside the aegis of the WTO, which enable them to trade in the absence of formal free trade agreements dealing (largely but not exclusively) with tariffs.

Even when confronted by swiftly-mounted protests, however, the BBC could not admit to error. Instead, it issued a statement saying that: "There are arrangements between the EU and 24 other countries and territories, negotiated under the WTO, which are not related to tariffs. This article was updated to make that clearer". Thus, the new "Reality Check verdict" read:
This is wrong. With regard to tariffs, the UK trades with 24 countries and territories under WTO rules alone. With 68 others it has, as part of the EU, free trade agreements, either fully or partly in place, which all enable trade on better terms.
The point which the BBC thus evades is that there is a great deal more to international trade than just tariffs. And the agreements covering such areas as between the 24 and the EU were not, as the BBC avers, "negotiated under the WTO". But the BBC in all its arrogance, cannot be wrong. After all, it exists to instruct us all in the error of our ways, so this cannot be the case.

As to the Prime Minister's arrogance, this stems from her assuming the right to waste our time with a repetitious speech to the CBI, cluttered with platitudes and trite nostrums, telling us nothing of that which we so desperately need to know.

Of Brexit, all she had to say was that she wants the UK and the EU to agree the outlines of any transitional Brexit deal soon, but – as noted by Reuters - declined to say whether she was confident the details of a full trade deal will be agreed by October next year.

"Businesses", she told the CBI, "should have the comfort of knowing they will be able to operate on the same basis as they currently can during that implementation period". And by this means, she is implying (but not overtly stating) that for the "time-limited" period, the nation will have to conform with the full EU acquis and be under the jurisdiction of the Commission and the other EU institutions, subject to the rulings of the ECJ.

This, somehow, is supposed to be better than opting for the Efta/EEA option, where we adopt less than a quarter of the acquis, where we are fully outside the EU, free from the jurisdiction of its institutions and no longer subordinate to the ECJ.

This made the back-bencher debate on UK membership of the EEA particularly apposite. It was ably led by Stephen Kinnock (pictured), moving the motion:
That this House believes that for the UK to withdraw from the European Economic Area (EEA) it will have to trigger Article 127 of the EEA Agreement; calls on the Government to provide time for a debate and decision on a substantive motion on the UK's continued membership of the EEA; and further calls on the Government to undertake to abide by the outcome of that decision.
I will need to devote a full (and probably lengthy) post to the debate, but now is not the time. Continuing the theme of arrogance, we move straight to the winding up by the Member for the Legatum Institute (Mr Steve Baker), and some time Parliamentary Under-Secretary of State for Exiting the European Union.

What struck me was the arrogance of the man in his contemptuous dismissal of Kinnock's case and, especially, his reiteration of the Government position that the UK "is only a party to the EEA agreement by virtue of our EU membership". Thus, Baker says, "the Government’s legal position is clear: Article 127 does not need to be triggered for the agreement to cease to have effect when we leave the EU".

To bolster this case, he calls in aid Jean-Claude Piris, "the man who led the European Council's legal service for 22 years", and Dr Carl Baudenbacher, the president of the EFTA court. Both assert that the UK will automatically cease to be an EEA member when leaving the EU. The UK, not being a member of Efta, and not anymore an EU member, could not be an EEA member.

This, in fact, is a classic example of the "appeal to authority" – a logical fallacy which relies solely on the authority (or prestige) of the authors for proof of rectitude. But, despite the high status of both Piris and Baudenbacher, neither are experts in international law, or the sub-speciality of treaty law.

Yet, referring to one such expert, Laurence R Helfer in a paper on "Terminating Treaties", we find the candid admission that "the structure and operation of treaty exit provisions" have been "long overlooked by most legal scholars and political scientists".

In essentially a long-vacant and under-explored field, the way is open for the pontification of the likes of Piris and Baudenbacher, but their assertions probably owe more to wishful thinking and political convenience than they do an authoritative expression of the state of art.

Turning to another paper, by Benedetto Conforti and Angelo Lobelia, respectively of the Universities of Rome and Naples, we see a discussion about whether invalidity or termination of a treaty "may only constitute the object of denunciation or of an equivalent international act" or whether a treaty (or membership) may terminate automatically. From there, we read:
The positions put forward by contemporary legal scholars with respect to customary law, that is, in areas where the Vienna Convention on the Law of Treaties does not apply, confirm that non-automaticity is the preferred course. As far as customary law is concerned, there are no disputes as to the automatic nature – apart from expiration of the time - of original impossibility of performance, the emergence of a resolutive condition, or the extinction of a contracting state (unless succeeded by a new state). Similarly, legal scholars are fairly unanimous in holding that a denunciation or an equivalent act is needed where invalidity or termination stems from error, fraud, breach by a party or fundamental change of circumstances.
On that basis, it would seem that any "invalidity" of the EEA arising from the UK's change of status does not automatically invalidate membership. It must be addressed by denunciation of the treaty. As the authors say:
... it is clear that a treaty which provides contracting states with the possibility of denunciation or withdrawal, perhaps on a set timetable, is not rendered inapplicable until a state has exercised its option in accordance with the treaty provisions.
Returning to Helfer, one then sees that the foundational principle of State consent governs the design and operation of all treaty exit clauses. At the negotiation stage, Helfer says, State representatives have free rein to choose the substantive and procedural rules that will govern the future cessation of their relationship.

Then it gets really interesting. "Once those rules have been adopted as part of the final text, however", Helfer adds, "a State that ratifies or accedes to the treaty also accepts any conditions or restrictions on termination, withdrawal, or denunciation that the treaty contains".

He goes on to state: "Unilateral exit attempts that do not comply with these conditions or restrictions are ineffective. A State that ceases performance after such an attempt remains a party to the treaty, albeit one that may be in breach of its obligations".

In other words, once an exit procedure is defined in a treaty, a State desirous of leaving must follow that procedure. Even though it may be in breach of its obligations in respect of a treaty, it remains a party to it – until or unless it has undergone the exit procedures to which it agreed.

Arguably, in order to leave the EEA, the UK has no option but to invoke Article 127. Having agreed to the procedure defined in that Article, it cannot choose to exit a different way, or rely on automaticity.

A less arrogant person than Baker might have acknowledged that the issue is subject to considerable debate between experts, but for the fact that the Government has its own concerns. Having lost the Miller case on the application of Crown Prerogative on invoking Article 50, it fears that it will need Parliamentary approval to invoke Article 127.

This, some assert would give to Parliament the power to decide whether or not we leave the Single Market – something the Government would want to resist at all costs. How typical therefore, that it fronts Legatum's bully boy to bluster his way to denying the case.

But here, the arrogance could well lead the way to another court hearing. Attempts at judicial review have so far been dismissed as premature but at some time the Government must make a formal decision as to whether to proceed with Article 127 or not. Baker's hubris may then prove to be his downfall.

So much then for a day of arrogance. Now it's our turn.

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