Mounting a legal challenge to David Cameron

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Offline the leveller

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Mounting a legal challenge to David Cameron
« on: February 21, 2016, 07:23:31 PM »
Dear Friends at Leave.EU.

 I am a supporter and activist.  Now that a bit of the dust has settled after Mr Cameron's negotiated deal, I believe an urgent question arises and one that is prompted by Mr Cameron's own repeated assertion that any negotiation in order to be effective must be backed up by treaty change.
These pledges were numerous and cannot have been made without sound reason, but one obvious political reason for abandonment being that treaty change would be a long involved process and not possible before the preferred date for a referendum in June 2016 .  The pledges were:

1.  In his Bloomberg speech in 2013 the PM called for  "fundamental far-reaching change, and said he wanted the changes enshrined in the treaties (PM's Office 23.1.2013)

2.Before the last General Election Mr Cameron confirmed that his plans "do involve full-on treaty change. (Guardian 4.1.2015)

3. Mr Cameron had also promised a "treaty change that I'll be putting in place before the referendum" (Andrew Marr interview BBC Marr Show 5.1.2014)

Likewise the Foreign Secretary Phillip Hammond affirmed likewise on the need for treaty change as late as January 2016. (Guardian 18.1.2016)

The question arises therefore, in the light of these:  Is the current negotiated deal legal in terms of EU law and the linked question,  if not then are the member states and subsequent governments bound by this agreement?

This raises further questions about legality since it was the Prime Minister Mr Cameron himself who, through these pledges, appears to have recognised that without treaty change these negotiations cannot be legally binding.

In a carefully worded piece by Dr. R North on his blog (21.2.2016 - 'Dave's Dodgy Deal) he too makes a strong case for dismissing the legality of this deal as follows:

"as the provisions of this "decision" rely, according to the text on page 15, on their substance being "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".

 With this in mind, we again have a conditional deal. The provisions relating to economic governance can only have binding legal effect once they are "incorporated into the Treaties". Until then, this is a promissory note.

 Crucially, though, there is an issue here which is being ignored or missed (take your choice). The "decision" is not being made by the European Council – an institution of the European Union, and bound by its procedures – but by the Heads of State or Government. They are acting as an intergovernmental forum outside the EU treaty framework.

 In this, there is no room for equivocation – and there is no ambiguity in their status. In international law, there is no mechanism – and no possible allowance for – an intergovernmental body outside the EU treaty framework to make any commitment which is binding on the EU. "

Dr North ends by asserting, rightly in my view, that the PM is "perpetrating a fraud".

A similar charge of illegality is made by barrister Michael Shrimpton:

"Having studied the full text of the final agreement as released by Reuters five hours ago it is clear that the UK Government is seriously misrepresenting this agreement.

 It is not a binding international treaty and contains no provision for notification to the UN or deposition of instruments of ratification.  It takes the form of the fraudulent Danish agreement of 1992 at Edinburgh, i.e. a decision of the Heads of State and Government meeting "within" the European Council, not as the European Council.

It is not therefore a decision of an EU institution and it has no status under EU law.

 Even if it were a treaty it would not be binding until ratified.  No EU Member State is proposing to ratify before the referendum on 23rd June.

The provisions on "ever-closer union" do not and could not bind the ECJ, as they do not amend the Treaty on European Union (TEU). 

 The commitment to treaty change is legally meaningless, as none of the Heads of State or Government could have bound their respective states, which would have to ratify in accordance with their internal constitutional requirements.  The European Parliament is not a party to the agreement and had not even debated it.  It is not even arguably bound and therefore would be free to reject the proposed treaty change."

Finally, as Martin Schulz EU parliament President has himself said: “David Cameron’s package of EU reforms cannot be made legally binding before the British public vote on it… the (EU) parliament “could amend any deal done at the summit and would not necessarily rubber stamp it all”

Given these serious charges and assertions there appears to be a clear prima facie case for mounting an early challenge to Mr Cameron's deal without delay, for clearly if its legal status is challenged and proved in a British court, or in the ECJ,  then the whole rotten edifice of "the deal" with all its vacuity and empty promises fall with it.

Who will mount such a legal challenge?

Graham W (York)

« Last Edit: February 21, 2016, 07:28:30 PM by the leveller »

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