Guglielmo Verdirame

There has been a lot of talk about how Article XXIV of GATT can provide an alternative to the Withdrawal Agreement. But here’s the deal with Article XXIV of GATT: it is a solution to a problem which is not the problem. Let me try to illustrate this with a story. Imagine a couple – let’s call them Joe and Angela – who are going through a divorce. After a long-drawn process, and hundreds of billable hours, their lawyers have at last produced a draft divorce settlement. The successful business that Joe and Angela have built will continue, but Joe will need to make a series of maintenance payments to Angela and the family home will be sold. Joe finds this difficult to accept but he is also desperate to move on with his life.

As Sir Stephen Laws QC, Richard Ekins and I explained in a paper published by Policy Exchange this Friday, the good faith and best endeavours obligations in the Withdrawal Agreement and Northern Ireland Protocol (the backstop), in addition to the Joint Instrument agreed at Strasbourg, offer the UK far greater legal comfort than seems to be appreciated. This is not enough for some sceptics in the ERG who want to be reassured that, if the worst came to worst, the UK could leave the backstop unilaterally. There has been much discussion about Article 62 the Vienna Convention on the Law of Treaties (VCLT), which deals with the right of states to terminate treaties when there is a fundamental change of circumstances.

David Cameron struggles to repatriate powers from Brussels. Yet Britain can reclaim one sovereign power without negotiation. Other EU members never relinquished the right to say ‘non’, ‘nein’, ‘oxi’ to European law that violates the constitution. Should Britain do the same? Italy and Germany’s Constitutional Courts first set constitutional limits to EU law in the 1970s. The Luxembourg-based European Court of Justice was not amused. It recently raged against the Spanish Constitutional Court which had the chutzpah to say the European Arrest Warrant might violate due process. 'Rules of national law, even of a constitutional order cannot … undermine the effectiveness of EU law,' thundered the Luxembourg judges.

Will the scrapping of the Human Rights Act make Britain a pariah in Europe? When the Human Rights Act was passed in 1998, it was presented as a moment of great liberal modernization that was to take Britain closer to liberal democracies on the continent. Yet, the European experience was quite different. In Germany, France, Spain or Italy, if you bring a human rights case, you do so mainly by reference to the distinctive bill of rights contained in each of those countries’ constitutions. The Norwegians, who also reviewed their human rights legislation recently, were clear on one thing: their Supreme Court had to continue to decide human rights cases under their own bill of rights rather than the European Convention or any other international agreement.