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The debates regarding the worth of the UK’s potential new EU agreement package are coming in thick and fast. However, one question seems more important than any of the others…does the Prime Minister’s agreement have any legal basis and if challenged will the UK be sure to retain all of what has been negotiated?
Michael Gove, Justice Secretary, has challenged the legality of the agreement that was negotiated and made last week.
Gove is one of five lead cabinet ministers calling for Brexit and opposing the David Cameron’s EU deal. During a BBC interview, Gove stated that the European Court of Justice could ‘throw out’ some of the agreements, unless they are all put into a Treaty. Without a Treaty, Gove believes elements of the PM’s agreement could potentially be exposed to legal challenge and therefore change.
In an interview between Gove and BBC political editor Laura Kuenssberg (published on 24 February), the minister stated:
“The facts are that the European Court of Justice is not bound by this agreement until treaties are changed and we don’t know when that will be,” he said.
He said Mr Cameron was “absolutely right that this is a deal between 28 nations all of whom believe it”, adding: “But the whole point about the European Court of Justice is that it stands above the nation states.”
Mr Cameron has “not been misleading anyone”, Mr Gove went on, but he added: “I do think it’s important that people also realise that the European Court of Justice stands above every nation state, and ultimately it will decide on the basis of the treaties and this deal is not yet in the treaties.”
This has however been rebuked by others, such as Attorney General, Jeremy Wright, who stated that the deal was “irreversible”, a belief agreed by the government’s lawyers and also European lawyers. Wright justified his statement by explaining that the agreement has “very similar legal strength” to existing treaties.
Downing Street has also commented on the legality argument, citing a former director of legal services at the EU, Alan Dashwood, who said the “Decision” was a binding legal agreement reached by consensus and could only be amended or rescinded by consensus – or, “in other words, with the agreement of the UK”… “So, in that sense, it is irreversible”.
On further analysis of the agreement, Clive Coleman, BBC legal affairs correspondent, added that whilst the deal has not been set in a formal ratified treaty, it would still be regarded by many as legally binding in international law and it is this key point that has been emphasised in the Cabinet policy paper (also published this week, providing details on the agreement).
Coleman continued to explain that what he felt was most important was ‘the substance of the agreement and not the label “treaty”. As Mr Gove acknowledges, this is a “deal between 28 nations all of whom believe it”. In other words all of whom intend to be bound by it’.
The full agreement of all 28 member states has been given to the renegotiation package and this agreement also acknowledges that the package is compatible with existing EU treaties. However, facts are facts and the agreement is not in its entirety being placed into a formal Treaty. Ultimately, the agreement will be open to interpretation by the ECJ should a nation state put forward a case against the agreement in the future.
Whilst some, such as Mr Gove has focused on this possibility of challenge, it must be remembered that this is no different to all other pieces of existing EU law which are too subject to ECJ interpretation.
As Coleman clarifies ‘So, while some legal experts acknowledge that a legal challenge is theoretically possible, the ECJ would give substantial weight to the fact that all 28 member states have agreed both the deal and that it is compatible with the existing treaties. That makes the chances of a successful legal challenge slim’.