,
9 tweets,
3 min read
Read on Twitter
1/ A quick thread on the legality of the backstop under Article 50 TEU. In short, I agree with @killbrexitnow that this is potentially the thorniest legal issue surrounding the draft WA (an issue running for moths now - express.co.uk/news/uk/103997…).
2/ By comparison David Trimble has raised complaints about the WA, but ones which amount to very weak legal arguments (under Art 218(11) TFEU he wouldn’t be in a position to seek a CJEU opinion on this issue): theconversation.com/brexit-david-t….
3/ The limits of Article 50 have been well ventilated. It is a bit frustrating when two HerbertSmithFreehills lawyers produce a briefing which cites none of the debate (bar the AG’s opinion) and are feted by Brexiteers like they just raided the lost ark: …es-herbertsmithfreehills.vuturevx.com/20/19043/landi…
4/ Having raised the issue in para 17 of the AG’s Opinion (assets.publishing.service.gov.uk/government/upl…) back in November, the UK Government have sat on it. It isn’t surprising given the “full steam ahead with Brexit” rhetoric.
5/ If the UK Government did suddenly pop up with a request for an opinion at this late stage, the CJEU is likely going to look on it as a negotiating ploy, and no other party able to request an opinion under Art 218(11) is likely to do so.
6/ It is funny to think of the EU being hoisted on its own petard when it used the terms of Art 50 to push the UK into accepting a phased negotiation in mid 2017. That it got away with it then was a function of the strength of its negotiating position, not the terms of Art50(2).
7/ If the question did reach the CJEU, for my money, there is enough ambiguity in the Art 50 text to allow it to support the legality of the backstop.
8/ Especially since, in Wightman (curia.europa.eu/juris/document…), the Advocate General discussed Art 50's interpretation (at [90]) under the proposition that “everything which a provision does not prohibit is allowed”.
9/ If, against all of the odds, the UK did win the case, the victory would likely be pyrrhic. The backstop might be removed from the WA, but EU would refuse any substantive future relationship talks until it had been agreed under Art 8 TEU.
