EU Referendum

EU Referendum: not legally binding


One of the most dispiriting sights of the Wednesday last was the ranks of supine MPs crowding the Commons chamber, silent almost to a man (and woman) while their Prime Minister brazenly lied to them.

We drew attention to this in our earlier piece, observing that his address to the Commons (column 927) amounted to 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".

To his eternal shame, former Attorney General Dominic Grieve supported the lie, declaring that the Prime Minister had "achieved a quite remarkable result because of the legally binding nature of the document that he will bring back if it is accepted by the European Council".

The nearest anybody got to calling Mr Cameron out for the liar that he is was Bill Cash, who remarked that we had been "told and promised that this entire package would be both legally binding and irreversible, but now it will be stitched up by a political decision by the European Council, not by a guaranteed treaty change at the right time".

Cash is perfectly correct. 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.

Earlier, we even had that noted EU-enthusiast Andrew Duff making his own observations on Mr Cameron's core claim, which goes back many months. "If the heads of government want to placate Cameron", he wrote, "they can promise formally to change the treaty in the future, but such a promise will be neither legally-binding, nor irreversible".

Elaborating on his statement in the Commons, however, Mr Cameron is now insisting that: "If it [the settlement] is agreed it will be agreed as a legally binding treaty deposited at the United Nations".

Crucially, though, this cannot be agreed as an EU treaty. As Duff points out, Article 48 of the Treaty of the European Union (TEU) would automatically kick in, requiring a convention and a full intergovernmental conference, in a process that would take about three years, assuming that the European Parliament would consent to holding convention.

Thus, Mr Cameron is relying on is the fiction that the European Council meeting on 18-19 February will, for the purpose of this settlement, constitute itself as an intergovernmental body comprising heads of government and prime ministers of the member states, with power to make a binding agreement.

This status is confirmed by the Tusk letter, where the Council President states that: "Most of the substance of this proposal takes the form of a legally binding Decision of the Heads of State or Governments".

Notice, he does not state that this is a European Council decision. There is no such thing envisaged in the treaties in respect of this situation. He refers to "Heads of State or Governments". And like Mr Cameron, he wrongly states that it is "legally binding", although he does not say that it is irreversible.

At the very best, though, before this agreement (or "decision" as Mr Tusk would have it) could have any legal force as a "legally binding treaty", it would have to be ratified by all 28 Member States. This included the UK. The Government would need to gain parliamentary approval.

But if that is fraught, that is probably the least of the problems. There are, in fact, two insurmountable obstacles. Firstly, the settlement requires, in respect of several provisions, that the Member States agree to EU treaty amendments to give legal effect to those provisions.

The point here is that none of the signatories could guarantee the passage of treaty amendments and, even if they were to secure the amendments, none could guarantee their ratification.In this context, the Vienna Convention on the Law of Treaties (Article 61) kicks in. As we noted previously, it states:
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.
The "object indispensable for the execution of the treaty" in this case is an amended treaty which, if it does not materialise, renders Mr Cameron's settlement unenforceable. As such, it is neither legally binding nor irreversible.

As to the second obstacle, the original settlement, agreement by heads of government, etc., acting as an intergovernmental body, are outside the framework of the EU treaties. But amendments to the EU treaty require actions by the European Council, legally an entirely separate body, and the European Parliament.

Here, 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). This is translated into treaty law by Article 34 of the Vienna Convention, which states that "a treaty does not create either obligations or rights for a third State without its consent".

Put simply, 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. And then no parties to a treaty can bind a another to its provisions, without their consent (which the EU is not in a position to give).

With that, as we averred in our previous piece and again here, the Prime Minister is guilty of the most grievous of all sins – misleading the House. By any other name, he is lying to the Commons.

Now, if the serried ranks of MPs can't or won't do their job, and call him out, then in a democracy this task falls to the media. And here, as always, the fourth estate is failing in its duty. The best it seems we can expect is the likes of the Guardian conveying the views of Martin Schulz, president of the European parliament, who has said that the settlement was "reversible".

Reported in terms of a "he said – she said" argument between Schultz and Cameron, none of the media accounts dwell on who might be right. Sky News, for instance, simply says Schultz is causing the Prime Minister a "headache" because "his comments threaten to play into Eurosceptic arguments".

Thus by bovine politicians and a witless media, the public are so ill-served that a Prime Minister can quite deliberately lie through his teeth and (so far) get away with it.

But then, who really cares? What really counts is that we should not be nasty to the media, or horrid to our revered MPs. Perhaps if we write a nice, polite letter to Mr Cameron, deferentially pointing out the error of his ways, he will immediately correct himself and apologise profusely for misleading us.

I look forward to this miracle with bated breath.