Brexiteer ‘star chamber’ snubs Cox’s attempt to beat backstop
Attorney General’s latest legal argument dismissed as erroneous by leading group of Eurosceptics
GEOFFREY COX is attempting to win over Eurosceptic Tory MPS and the DUP with new legal advice stating Britain could break from the Irish backstop under the terms of the Vienna convention, The Daily Telegraph can disclose.
In the advice, the Attorney General states Britain will be able to end the backstop if it is having a “socially destabilising effect on Northern Ireland”, which would be considered a “fundamental change” of circumstances under the terms of the Vienna treaty.
But the so-called “star chamber” of Eurosceptic Tory lawyers, which includes Nigel Dodds, the DUP’S deputy leader, has produced a five-page analysis of the advice and concluded that it is “erroneous” and “badly misconceived”.
It is a significant blow to the Prime Minister’s attempts to win support for her deal ahead of a third meaningful vote next week.
The plans, given to Eurosceptic MPS by Mr Cox earlier this week, state that the Vienna treaty would enable the UK to break off from the backstop in the event of an “unforeseen and fundamental change of circumstances”.
Mr Cox said: “Those might, for example, be that the prolonged operation of the backstop was having a socially destabilising effect on Northern Ireland, contrary to its objectives. Article 62 of the Vienna Convention on the Law of Treaties, reflective of the customary international law doctrine rebus sic stantibus, permits the termination of a treaty in such circumstances.
“It is in my view clear and undoubted in those exceptional circumstances that international law provides the [UK] with the right to terminate the Withdrawal Agreement. If that were to happen, the [UK] would no doubt offer to continue to observe the unexhausted obligations in connection, for example, with citizens’ rights.”
In its legal opinion, the star chamber argued that Article 62 could only be invoked under “extreme circumstances” and highlighted case law showing that the fall of the Soviet Union was considered insufficient.
The star chamber said: “Saying they are ‘exceptional’ does not make them so in the eyes of international law. Hungary undoubtedly thought there was something ‘exceptional’ about the collapse of Soviet tyranny and the liquidation of the other State Party with which
‘The fall of the Soviet Union and dissolution of Czechoslovakia were not sufficient to satisfy this ground’
Hungary had concluded the treaty in question. But that was not enough.”
In 1997 Hungary tried to escape a treaty it had with Czechoslovakia on the grounds of the fall of the Soviet Union. It was not deemed to be a “fundamental change or circumstances” by the International Court of Justice.
The Eurosceptic group added that under the terms of the convention, treaties could only be terminated if there was an “unforeseen” change. The lawyers pointed out that as the Government had already considered the circumstances under which the backstop could be broken off, the treaty could not be triggered.
Martin Howe, a member of the star chamber, described it as a “complete non-starter” and risked turning Mr Cox’s legal advice, referred to as a “codpiece”, into a “fig leaf ”.
Mr Howe said: “The leading case in the International Court of Justice shows this requires radical change of circumstances. The fall of the Soviet Union, disappearance of the Warsaw Pact and dissolution of Czechoslovakia were not sufficient to satisfy this ground.
“The other issue is, under Article 62, the change of circumstances has to be unforeseeable. As we are talking about this ‘change of circumstances’ now, it cannot be unforeseeable.”
There were significant divisions among Eurosceptics. A group of 20 hardliners were said to be opposed to the Prime Minister’s deal in all circumstances, with some of them prepared to vote to bring Mrs May down in a confidence motion brought by Labour.
Others tried to be more conciliatory. Conor Burns said: “I’m actively looking for reasons to support the Withdrawal Agreement. That’s why the Attorney General’s advice was so important, critical, to many of us to see whether we could be persuaded to support it.
“Clearly it is better to leave on time in an orderly way than it is to have this chaos. But the Remain-dominated House of Commons is now openly asserting itself in trying to overturn the implications of the result in 2016.
“So if you’re a Brexiteer who wants to deliver Brexit, if it turns out that a changed Withdrawal Agreement is the only way you can do that and stop a two-year extension, the urgency of the instruction clearly diminishes over time. But there still need to be changes.”
Arlene Foster, leader of the DUP, said her party was “working very hard” with the Government so that “we leave the EU with a deal”.
“The important thing is Northern Ireland is not left behind, that we leave altogether, that we have that constitutional and economic integrity for the UK. And we have long said that Stormont should play a role in this.”