The European Council Conclusions are the sum total of years of promises from the prime minister. We were promised treaty change and we were promised a reformed EU instead we have neither and we are being taken for fools. The final agreement between the EU and the UK is being purposely misrepresented by the government. The deal is a total fraud and we are being sold a lie.
“What was agreed by 28 prime ministers and presidents, every EU country on Friday evening, that is itself an international law decision, a treaty that will be deposited at the UN. It is legally binding, it is irreversible.” – David Cameron
It is not a legally binding international treaty and, despite what the prime minister has repeatedly said, it contains no provision for a formal notification to the UN. It is a fraudulent agreement specifically designed to fool the general public. It is a deception being made safe in the knowledge that most people will not be able to see through it, that much of the media will either be complicit in the lie or too lazy or distracted to properly report on it. This is a stitch up, plain and simple.
To be clear; the decision is not being made by the European Council – an institution of the EU – but by the Heads of State or Government. They were meeting within the European Council but were not acting as the European Council. This was an intergovernmental forum acting outside the EU treaty framework. Even if it were the European Council the Council does not have any authority to make treaties.
The point to remember is that because this was not the decision of an EU institution it therefore has absolutely no status under EU law.
Even if it were a treaty, it would not be legally binding until it was ratified. There is no proposal to ratify a treaty before the referendum, in-fact it is not clear when treaty revision will occur, it will likely be years away. We will then be dealing with different Heads of Government and State, and a different European Council, they will be under no obligation to honour the agreement struck by their predecessors.
This has to be spread far and wide, and communicated loudly and clearly. This is not ambiguous. Let me hammer it home.
The current Heads of State or Government cannot guarantee the passage of treaty amendments that this deal proposes to be implemented in an unspecified time in the future.
Even if the Heads of Government could guarantee the passage of the proposed amendments, they could not guarantee their ratification. The Vienna Convention on the Law of Treaties Article 61 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.
David Cameron is insisting that this agreement constitutes a treaty. Well, if that were true, there exists an “object indispensable for the execution of the treaty”. That indispensable object is the “Treaties at the time of their next revision” element. If the treaty amendments do not materialise, then this deal is unenforceable and worthless . As the heads of state or government are not in a position to guarantee these “Treaties” the deal is not legally binding or irreversible.
Then we have to come back to the fact that an intergovernmental forum acting outside of the EU treaty framework cannot make a commitment which binds the EU. Amendments to EU treaties require actions by the European Council and the European Parliament.
The law doctrine res inter alios acta vel iudicata, aliis nec nocet nec prodocet Latin for “a thing done between others does not harm or benefit others”) which holds that a contract cannot adversely affect the rights of one who is not a party to the contract. This was translated into Article 34 of the Vienna Convention, which states: “a treaty does not create either obligations or rights for a third State without its consent”
The pillar of our new settlement which apparently protects us from “ever closer union” and forms the basis of the delusion that we are not part of a Union subject to a supreme government:
It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union.
Then comes the legal basis of that statement:
The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States, so as to make it clear that the references to ever closer union do not apply to the United Kingdom.
The formal acknowledgement that the UK is not committed to any further political integration in dependent on it being “incorporated into the Treaties at the next revision”. The commitment to treaty change is legally meaningless because none of the Heads of State or Government can bind their respective states, their successors will not be bound by their decision. The European Parliament is not a party to the agreement and is not bound by it, therefore it will be free to reject the proposed treaty change if indeed it does come, though no date has been specified. Furthermore, the provisions on “ever-closer union” do not and cannot bind the European Court of Justice, as they do not amend the Treaty on European Union.
Francois Hollande’s comments have been telling, claiming it is not binding, he said there were “no deviation from the European rules” and “no exception to the rules of the single market”. He asserted that the concessions do not even require changes to existing EU treaties, but could be included in them “when there is a treaty revision procedure one day” but there are “no revision of the treaties planned”.
As for the “emergency brake”, it pales in comparison to the brake that EEA countries have, revealing our weakness as a Member State. Our “emergency brake” will be of a minuscule economic and social impact.
There was in any case no agreement reached to limit to in-work benefits for new arrivals until 2023 for up to four years with a taper, we don’t actually have an agreement that can be applied at will.
All that has been agreed thus far is that the European Council will consider an amendment to the relevant Regulation. Without that amendment the Regulation would continue to have automatic effect. Any EU migrant affected could potentially take the UK to the European Court of Justice, which could strike down the amendment for non-compliance with the Treaty of the European Union. If the Treaty of the European Union is amended, then our parliament will simply be working on a weighted majority with other national parliament, thus we will be able to force a rethink of new measures only, but not unilaterally make a decision.
Our parliament has not been newly empowered. We do not have a legally binding and irreversible deal and we are being sold fool’s gold. The truth must be told.
The views expressed in this article are that of the author and do not necessarily reflect the views of Conservatives for Liberty