The British Government is only planning a small breach of international law with the United Kingdom Internal Market Bill, and it’s only community law at that. EU member states breach it all the time, not least when it comes to exports of succulent, juicy British lamb! International treaty law is founded upon consent and the UK could and should withdraw from the Withdrawal Agreement. It’s also doubtful if the extreme EU interpretation of the agreement is correct.
Part 5 of the Bill is the bit causing the most difficulty, because on the EU’s interpretation of the Northern Ireland Protocol it would be overridden. There’s no doubt that Parliament has the power to over-ride community law – Parliament may do anything it likes, including authorising torture, although it would only do so in a proper case of course.
The courts confirmed the principle as recently as the Metric Martyrs Case (Thoburn v. Sunderland City Council), where the issue was implied repeal. (As the Law Officers advised Ted Heath in 1971 a later Act of Parliament over-rides an earlier and in the event of a conflict it would be the duty of the judges to give effect to the later act.) The courts in that case departed from British constitutional practice, with respect, and gave effect to the earlier act, the European Communities Act 1972, over the later. However they confirmed that express repeal was possible.
The decision was a nonsense of course, since the Weights and Measures Act 1985 post-dated the European Communities Act and should have been applied in preference to it, but there it is. (I was leading junior counsel for the Martyrs, one of whom, Steve Thoburn, died, sadly.) There can be no question about the legality of the Internal Market Act if it’s passed.
The only real obstacle is the House of Lords, which is dominated by fossilised Remainers, no offense intended, whose instinct will be to back Brussels. However if the Lords reject the Bill the government could use the Parliament Act 1911 and force it through. The House of Lords in its judicial capacity persuaded itself that the measure calling itself the ‘Parliament Act 1949’, where the House of Commons tried to unilaterally amend the 1911 Act, is valid. The waiting period, according to the courts, is therefore only one year. (It’s two years under the 1911 Act.)
The problem for the Lords is that this has become a key part of the government’s legislative program. It won’t take kindly to having the will of the Commons thwarted.
There are unworkable suggestions that the Lords be abolished, but Britain has always had a bicameral system and there needs to be some check on the power of the Commons. The solution is simple – reverse the disastrous 1998 change (‘reform’ would be too strong a word!) and bring back the hereditary peers. They are mostly very nice people and have a fierce sense of independence. Prime Ministers are reluctant to create new hereditary peerages because they can only control the first generation.
Of course some of the hereditary peers can be a bit eccentric (the late Marquess of Bath, with his ‘wifelets’ and safari park was a real character), but very few of them believe in the EU or global warming. In other words they’re mostly sensible, far more so in fact than the superannuated party hacks, no offense intended, who make up most of the life peers. They could be left to die out, with no new life peers being created, save for law lords.
The very silly, Remainer Supreme Court, no offense intended, could usefully be abolished at the same time. The current judges could be pensioned off and sensible new Lords of Appeal in Ordinary appointed. We don’t need politicised judges.
The House of Lords would be well advised to let the bill go through. It’s very well drafted and essential in order to keep goods and services flowing freely to and from Northern Ireland.
The Northern Ireland Protocol
The problem has arisen because of the extreme interpretation the EU is seeking to place on the Northern Ireland Protocol. According to Brussels Tesco might not be able to ‘export’ food to Northern Ireland!! That’s ludicrous. Effectively the EU is proposing to treat Northern Ireland as part of the EU rather than the UK.
That was never agreed. The bill doesn’t so much over-ride the Protocol as interpret it. There’s no workable international mechanism for resolving disputes, so we’ve had to come up with a sensible solution. (There’s a dispute resolution mechanism but it’s a complete farce.)
The anti-British, pro-German Democrats are working themselves up into a lather of anxiety over the Good Friday Agreement, which was signed on the absurd assumption that both the UK and Ireland would remain Member States of the EU. Clearly that agreement has outlived its usefulness – it’s always a bad idea to negotiate with terrorists.
The sensible thing would be for the UK to denounce the Good Friday Agreement, which would upset the Pope (the Jesuit one, not the nice Catholic one) and Joe Biden at the same time, always a good idea. There will have to be a hard border between the Republic and Northern Ireland, which was always likely once Dublin decided to stay in the EU. If they resume sponsoring terrorism they can always be crushed in battle, nicely of course, because we love the Irish. (The RAF would be under strict orders to avoid hitting the Guinness Brewery.)
The Vienna Convention
There is of course a way out of the impasse under international law. The Withdrawal Agreement, like all community treaties, is governed by the Vienna Convention on International Treaty Law. That’s been confirmed by the European Court of Justice in a number of cases, including one I referred myself, when sitting an immigration judge, El-Yassini.
As I have argued before we could and should have used the Vienna Convention to pull out of the EU. It would have saved everybody a lot of trouble.
Both parties to the Withdrawal Agreement contemplated a free trade deal, of some sort. The British government is ideologically committed to free trade, regardless of cost, whilst the EU wants to hang on to the £100 billion plus a year trade deficit in goods in their favor. However the negotiations have collapsed amidst bitter acrimony.
Put shortly there has been a material change of circumstances since the Withdrawal Agreement was entered into. Either party, or both, could now invoke Article 62 of the Vienna Convention and denounce the agreement on three months’ notice.
There’s an even more fundamental problem. The EU’s interpretation of the Withdrawal Agreement violates the United Kingdom’s jus cogens rights to freedom from interference in her internal affairs, national sovereignty and territorial integrity. In accordance with Article 53 of the Vienna Convention the Withdrawal Agreement, or at any rate the purported Northern Ireland Protocol, is null and void.
Since a void treaty has no legal existence the bill doesn’t breach international law. Hysterical media comparisons with burglary (!) don’t really assist.
One positive side-effect of the hysteria is that we’ve lost a couple of liberal lawyers, no offense intended, including Sir Jonathan Jones QC, head of the government’s failing legal service, and George Clooney’s wife Amal, who’s not as good a lawyer as her husband is an actor.
There is much high-sounding talk about principles coming from these worthies, but I don’t recall any of them speaking up when I was convicted on charges the profession knew were trumpery. Very frankly no lawyer supporting my convictions could be heard to say that they had a principled regard for the Rule of Law.
It’s good to see the proper Byelorussian authorities cracking down on the foreign-backed opposition. I’ve no doubt the COREA/Correa Group are in there, backed of course by their parent agency, the DVD.
The current fuss is straight out of the German playbook – query an election result, put forward a couple of telegenic opposition leaders and rent the odd mob. Fortunately Belarus has an efficient security service, the KGB (they kept the old name). They know all about the DVD and will no doubt have been keeping a careful eye out for German interference in Belarus’s internal affairs.
President Lukashenko, who by all accounts is a nice chap, is the elected President of Belarus. There is no reason at all to query the election result, not least as there wasn’t much mail-in voting. They have higher standards in Minsk than they do in New Hampshire – I doubt they let voters cross the border to vote, for example.
I have by the way been to Minsk, or least through it, on the magnificent Moscow Express:
The West Coast Fires
These are nothing to do with global warming. Since the planet isn’t warming, how could they? Antifa activists deliberately starting them might be closer to the truth.
For over 15 years I have warned that setting bushfires is an al-Qaeda tactic, doubtless suggested by the DVD, which controls them. Since there is clearly a link between Antifa and the DVD it would not be surprising to find them starting fires. Where there’s smoke, as the saying goes!
The NSA could help here – overheads for the times the various fires started should show who was in the vicinity. Generally speaking arsonists don’t like being burnt to death in their own fires and they usually have getaway cars.
As for punishment should the fire-raisers be caught, might I respectfully suggest burning at the stake to the relevant Attorneys-General? Granted it’s a little old-fashioned, and it would require some minor modifications to the various penal codes, but it would be an elegant solution, with suitable deterrent effect. It would also make good television.
The second wave
Various officials in the UK are in panic mode over a rise in positive tests. Notice I said a rise in ‘tests’, not in those infected – a positive test doesn’t tell us when somebody became infected.
The death stats continue to be as dodgy as ever. Anyone with Coronavirus who happens to fall under a bus still gets counted as a Covid-19 statistic. The stats tell who has died with Coronavirus, not of it. The NHS still aren’t using proven treatments like Hydroxychloriquine and Remdesivir. That scandal continues to brew and may yet bring down the NHS, whose current treatments are about as effective as those used during the Great Plague of London. If they went back to using leeches I wouldn’t be surprised.
I heartily endorse the sentiments about a second national lockdown expressed today by that nice man Nigel Farage, who by the way still hasn’t been rewarded for his historic role in helping to achieve Brexit. The only people who need locking down, or preferably up, are Sir Patrick Vallance and Chris Whitty, no offense intended.
I was saddened to learn this weekend of the passing of Associate Justice of the Supreme Court Ruth Bader Ginsburg. In truth however she had been desperately unwell with cancer for years and should have resigned some time ago. A highly political judge, no offense intended, she was very obviously hanging on in the hope that a President Biden would appoint her successor.
Very properly President Trump will now appoint her successor, which will mean a sensible majority on the court. Sadly, most of Justice Ginsburg’s opinions will not stand the test of time, but even her fiercest critics would have to acknowledge that she was a woman of character, with many admirable qualities.
Dame Diana Rigg DBE (1938 – 2020)
Very sadly Diana Rigg has also passed, on September 10th. She will forever be remembered as Emma Peel in the Avengers. Steed (superbly played by the late Patrick Macnee) had two other partners but neither touched Mrs Peel.
Whilst Emma Peel was her most famous role, Diana Rigg was an accomplished actress with a highly successful career in television, film and on the stage. She was arguably the greatest of all Bond women, in On Her Majesty’s Secret Service, where her character Tracy Bond, as she became after her marriage to 007, showed real independence as well as deep love for her man. OHMSS is still my favorite Bond movie, even if I think that Sir Roger Moore was the best actor to play 007. (He was certainly the smoothest!)
Diana Rigg’s wonderful performance as Tracy is a key reason for my affection for OHMSS. This great actress will be sorely missed. May she Rest in Peace.
Michael Shrimpton was a barrister from his call to the Bar in London in 1983 until being disbarred in 2019 over a fraudulently obtained conviction. He is a specialist in National Security and Constitutional Law, Strategic Intelligence and Counter-terrorism. He is a former Adjunct Professor of Intelligence Studies at the American Military University.
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