FOR TWO years Fishing for Leave has warned UK ministries and ministers that whatever Theresa May signs us up to will be treated as an international treaty. Under the Vienna Convention governing international treaties, and specifically Articles 30 and 70 makes it very hard, if not near impossible, to back-pedal from a treaty once signed.
Now, as reported in the Daily Telegraph, the Attorney General (pictured above) has told the Cabinet we are right.
"Geoffrey Cox, the Attorney General, has warned… Whatever Mrs May signs in Brussels, will become an international treaty – so changing it could mean a two or three year legal battle. The Brexit talks might seem easy by comparison."
Article 50 of the Treaty of the EU (TFEU) says the “treaties cease to apply”. Therefore, the EU has agreed that all the treaties – and the laws, rights and obligations upheld by them – are no longer binding on the UK upon 29tht March 2019.
Rather than prepare new British laws to be independent and take this clean slate the current government is going to sign up to re-obey all EU law the instant we leave.
This started with the Repeal Bill adopting all EU laws onto the UK statute book so the "same laws applied the day after we leave".
This beguiled the government and Brexiteers alike with a feeling that we could easily achieve leaving and going from being in the EU with lots of opt-outs to being out the EU with lots of opt-ins– 'in Europe but not run by Europe'.
Adopting EU law in itself was not a danger – it would be autonomous British law that just happened to look the same.
The danger was that in areas of law where the UK and EU interact. The only way the same laws could apply after the treaties and UK membership 'ceased to apply' was if the EU agreed.
This not only handed negotiating advantage to the EU; not only stopped the government cracking on to fully diverge from the EU; but it meant there had to be an agreement codifying the same laws could apply.
This would have to be underpinned by a new internationally legally binding treaty after exit – this is where, and what, caused Chequers and the Transition to be born.
Re-obeying all EU law and then trying to escape from the agreement exposes Britain to drawn-out legal challenge even if proved right in the end.
As the withdrawal treaty will not terminate, and as it will replicate all the same EU laws in a new treaty, the EU can argue for continuation of all the rights and obligations we will have agreed to re-create.
For fishing we would re-obey the same grossly exploitative and disadvantageous access rights and resource shares of the Common Fisheries Policy (CFP).
The EU would then argue that because we had re-agreed these, and because the Withdrawal treaty doesn't end or have a clean Article 50 termination clause, that the CFP rights continue.
Given the political establishment don’t want Brexit, any protracted legal fight would provide an excuse to backslide from Brexit and asserting the national interest even more.
As Fishing for Leave have tirelessly warned the Vienna Convention is a grey area. It presents a real danger of ensnaring the UK government in a protracted legal fight.
Therefore, a Transition and Chequers-based agreement, underpinned by a legally binding international treaty, is a grave danger.
It is not just Britain becoming a vassal state temporarily but opening us up to perpetual political purgatory.
This is why ideas of “just getting Brexit” and re-moulding the deal thereafter is a nonsense.
It shows either a deep lack of knowledge in international treaty law or a lack of diplomatic nous – why would the EU change from having Britain over a barrel?
We have a great admiration for Steve Baker, his principle and his tenacity that was instrumental in delivering Brexit. However, when the issue of a Transition presenting just the same legal problems as Chequers was raised at Conservative conference he, and other Brexiteers felt that, because the 2 years of Article 50 have been wasted, there will need to be a Transition to have time to re-set.
We therefore implore Mr Baker, MPs and the public that we need to Chuck not just Chequers but the Transition too.
Yes time may have been wasted to do a free trade deal, as Mrs May and Mr Robbins have kicked the can down the road, and will then use the lack of time to bounce Britain into a bad deal.
It is better to go to World Trade Organisation rules – taking any short-term disruption, as the preparatory work for being fully independent that criminally hasn't been done is implemented – rather than sign-up to a Transition that is a 'stop gap' we shall probably never escape.
If we do sign up to a Transition then we, our children and our children's children will regret and lament that we threw away our chance to regain national sovereignty, by signing a deal to re-obey EU law on worse terms and from which we can never escape – for questionable short term economic security from a WTO we need not fear.