Fight, go to law or rewrite the past?

Worrying toe-to-toe stuff in el Ghruni

The Brexit talks appear to be on the point of collapse after Britain flatly rejected an EU ultimatum over the government’s plans to break international law by reneging on key parts of the withdrawal agreement.

Germany’s ambassador to the UK, Andreas Michaelis, tweeted: “In more than 30 years as a diplomat I have not experienced such a fast, intentional and profound deterioration of a negotiation. If you believe in partnership between the UK and the EU like I do then don’t accept it.”...Gove said Downing St would not climb down. “I made it perfectly clear to the vice-president of the commission we would not be withdrawing this legislation,”

Barnier plays his familiar old song:

The bloc’s chief negotiator, Michel Barnier, separately issued a statement at the end of the eighth week of negotiations on a future trade and security deal in which he complained that London had not matched the EU’s willingness to find a compromise on the key sticking points: state aid and access to UK waters for European fishing fleets.

And m'learned friends may be in for a real bonus:

The commission has advised the 27 EU capitals that there are grounds for the bloc to take “legal remedies” through the European court of justice before the end of the transition period, potentially leading to significant fines or trade sanctions.

Elsewhere The Graun does its best to help to maintain a calm unfied front, as usual:

A behind–the–scenes rift has emerged between the government’s top legal advisers over the legality of the decision to bring legislation that overrides the EU withdrawal agreement....The revelation of a backroom disagreement over the ministerial code – which stipulates an “overarching duty on ministers to comply with the law” – could prove particularly damaging to Boris Johnson’s government.

Although, curiously:

Explaining how such a breach could be legally justified, the [leaked] letter explains: “All law officers agree that it is an established principle of international law that a state, acting through its executive government, is obliged to discharge its treaty obligations in good faith. This is, and ought to remain, the key principle in informing the UK’s approach to international relations....Keen [MoJ's spokesperson in the Lords] was vocal in his defence of the government’s position when responding to questions in the Lords about the internal market bill.

“We are not showing scant regard for our treaty obligations,” he said. “We are endeavouring to allow for a contingency that may arise very soon which will require us to ensure that we can discharge our obligations to Northern Ireland.”

He added: “From time to time tensions do occur between domestic legal obligations and international law. It’s not unprecedented for legislation passed by this parliament to cut across obligations undertaken at the level of international law. Domestic legislation does prevail.”

“However in the difficult circumstances in which we find ourselves, the attorney general and solicitor general consider it is important to remember that an established principle of international law is subordinate to the much more fundamental principle of parliamentary sovereignty.”

Another piece is equally unhelpful to the Grau's straw-clutching:

They [senior UK law officers] also agree that there is a “risky but respectable argument” that legislation could be written to be compatible with article 4 of the withdrawal agreement so that domestic law “takes precedence over article 5 of the protocol and s.7A of the European Union (Withdrawal) Act 2018 in particular in circumstances of “serious economic, societal or environmental difficulties that are liable to persist, or to a diversion of trade”.

On constitutional questions, the law officers concur that “parliament is sovereign as a matter of domestic law and can pass any legislation it sees fit, including legislation which results in the UK contravening its international obligations under treaties or customary, international law....In our view, ministers would not be acting contrary to the constitutional principle of the rule of law in proposing or supporting such legislation. Neither would parliament be acting unconstitutionally in enacting it.”

Further expensive advice includes:

Different readings of the code surface in the letter from the attorney general’s office. “The law fficers [sic] do agree that the [ministerial] code itself does not carry the force of law, is not enforceable in the courts, and does not pose a legal bar to action,” it says.

There is “strong precedent”, they claim, for the UK government passing legislation “in breach of treaty obligations”. They cite the government’s response to the European court of human rights ruling on prisoner voting.  

Not really a lifebelt then.

 O Jones opts for nostalgia and tries to rally the dear dead departed:

[The Government]  that if the airwaves are flooded with Labour’s angry reactions, their opponents can be easily portrayed, once again, as blocking Brexit altogether. They believe that their electoral coalition has little interest in international law. They want to toxify Keir Starmer in so-called red wall seats by portraying him as an aloof, establishment, metropolitan, remainer lawyer.

 Not very difficult I would have thought. Luckily:

Starmer’s team has noted the trap and sidestepped it. “Get on, negotiate, get the deal that was promised,” declares the Labour leader, while his team blames Boris Johnson for reopening the supposedly done Brexit. This seems like sound politics...this is the same dilemma faced by Starmer’s predecessor, Jeremy Corbyn, whose efforts to “sidestep” the issue of Brexit, on the basis that the referendum had been lost, were greeted with rather less charity. 

 Jones urges a rethink even if in a 'if-only' mode

Labour’s position of accepting the referendum result and negotiating a closer relationship than that offered by the Conservatives was broadly uncontroversial until the early months of 2018. Underpinning the party’s strategy were some incontrovertible facts: 41 of the top 54 Tory-held target seats Labour needed to win voted for leave..[so. in 2018]...The longer the deadlock went on, the more leading remainers became convinced they did not have to settle for a soft Brexit....

Both factions fed off each other, unleashing a culture war that was not about our relationship to a trading bloc, but about crude remain and leave identities, which divided families, communities and social classes....Such a culture war was poisonous for a leftwing political project founded on an understanding that the real division in society was between the majority and the elite...The Labour leadership was increasingly induced to accommodate them, forcing it to zigzag and perform dizzying U-turns....the party’s grassroots overwhelmingly wanted a new referendum, and Corbyn had been elected as their tribune. The leadership faced being defeated at the 2019 conference if it continued to resist. Combined with the rise of the Liberal Democrats and Greens at Labour’s expense, Corbyn’s closest parliamentary allies – John McDonnell and Diane Abbott – strongly believed Labour had no choice. 

 So now the Owl has crapped on our suit, what should we have done?

[chosen a] clearly defined soft Brexit earlier, using the political capital of its 2017 gains to make a passionate and principled case. The conflict-averse Corbyn [just Corbyn?]  left a vacuum and the stop Brexit movement filled it....We could have accepted the referendum, negotiated a close relationship [KitKat?], and pivoted back to the domestic issues that really matter. Instead, we have a hard-right Tory government with an unassailable majority that bungled the pandemic and has set Britain on course for the hardest Brexit possible.

There is still the oldest option of all, for the Gurd:

No-deal Brexit means food price rises, warns Morrisons

Storage issues could hit cost of fruit and veg as supermarket chain’s profits plunge