2020 is doing strange things to Whitehall. Thanks to the threat of Covid-19, parts of it are driven by the extremities of risk management to pursue nanny-statism. It does this because of some people acting as idiots rather than applying common sense, and from not trusting the public to follow the rules. Conversely, Downing Street sees the threat with Brexit lying in the European Commission not ignoring but exploiting the rules.

The Withdrawal Agreement is now admitted as being flawed, so a belated attempt is being made to weld and seal its gaps. The result has seen more people getting on their high horses than at the State Opening of Parliament. Yet Brussels has a developed track record not merely of ripping open the threads that bind loopholes but even cutting fresh puncture wounds in solid treaty texts. It is odd that knowledgeable experts are pretending that this is not so. The UK side is quite right to remove ambiguities that the counter party is only now admitting how it will seek to exploit them. And we should look honestly at the EU’s actual behaviour towards its own “sacred legal order”.

The EU’s breaches of its own purported rules, agreements and laws have been spectacular

Even before the negotiations started, the EU demonstrated that it was not interested in acting in good faith. Michel Barnier demanded an Irish backstop before any trade talks could begin. That sequencing muddied negotiations over the customs and regulatory arrangements, but then that was entirely his purpose since, as he admitted later to Guy Verhofstadt (as recorded by a documentary producer), he wanted the UK to be kept in both the customs and regulatory unions. When that ultimately didn’t happen, Barnier and the EU’s inherently bad faith negotiating teed up the current, unstable mess. Had the sequencing run the other way round, it would have considerably weakened the EU’s negotiating hand, but a border deal that was built administratively around an FTA operating to the satisfaction of all parties could then have been delivered two years ago. To be fair to Barnier, the UK position was, for three years after Brexit, driven by Remainers and minimalists pushing to reduce the amount of change. But then again, their domestic British ambitions for BRINO were enabled by the EU’s overreach in the first place.

Would that this had been an exception. Under the terms of both the Withdrawal Agreement and the Political Declaration, Barnier was also supposed to have applied best endeavours to get a deal done on fisheries months ago, and substantial movement on Services. The failure to deliver on both is a demonstrable breach of faith. From his team’s handling of the talks alone, deadlines and pledges held in international agreements the EU signs up to are not worth the paper they’re written on. But which British anti-Brexiteers ridiculously insist on pretending are holy writ, but only when applied to us. This is both childish and weirdly provincial.

The EU’s actual record

A fuller list of legal oddities in the WA and in the talks process was set out in a hundred page Centre for Brexit Policy paper in July, alongside the available remedies as permitted by international law. But let’s take a step back. For all their bluster now from pro-EU quarters that the UK is being unreasonable in wanting to safeguard itself from the loopholes in the WA, it’s the EU itself which has the disreputable track record.

Everyone knows how it has handled referenda. If you vote the wrong way, you have to vote again until you get it right. The Maastricht Treaty established the trend when it was rerun for the Danes. Then came the Nice Treaty and the Irish were told to do the same. The Norwegians held firm and said they weren’t interested both times they were asked. It comes over as gauche to even say this, but, all these referenda were preceded by solemn pieces of paper about what they meant. They did not appear out of thin air: they were embodied in lengthy and agreed texts about what they would mean. What the special words said did not happen, but only as and when the people were foolish enough to vote the wrong way.

The Norwegians, who held out against this chicanery, remembered what had happened during their accession talks, when the EEC6 reinterpreted the existing treaties through new last minute acquis in order to seize Atlantic fishing grounds from the accession countries who joined (that’s us, by the way). That was achieved through legislation, rather than by changing the agreed treaties (which were the basis why parliament had voted to enter the Community), a process the EU is now taking umbrage with when applied with lesser effect in reverse.

Give an inch, and the EU will take 1.6 kilometres

Most people have forgotten there was such a thing as the Laeken Declaration. It came from a meeting in a Belgian royal palace, where Heads of Government agreed that the EU was starting to look a bit antidemocratic and that maybe its persistent, self-serving legal shortcuts were fuelling Euroscepticism. So they set up a Convention to review the process and perhaps hand some powers back to the member states. The Convention was, of course, packed with pro-EU types, and – following form – they signed off on handing over even more power to the EU through a new constitution. In turn that was itself blocked in two referenda. Equally inevitably, the text was repackaged as the Treaty of Lisbon and those opposing electorates were sidelined. Then the ungrateful Irish voted against it. Predictably, they were told to vote on it again. No one who knows the slightest thing about the EU’s approach to even its foundational texts can believe it holds them to be inerrant, and that they should be approached literally.

Follow the money

Let’s look at the Euro. As you might expect with something as important as money, the EU’s breaches of its own purported rules, agreements and laws have been spectacular. Having set out very explicit qualifying thresholds on debt-to-GDP and annual deficit, you might expect some significant tweakery to accommodate the underlying politics. French statistics for example were questioned at the time, and even today disputes stir over whether Macron’s 2019 deficit may legitimately be fiddled to be passed over as “exceptional and temporary”; but it was a real stretch to describe Belgium’s over 100% debt-to-GDP rate as justifiable when the maximum allowed was 60%.

As for Greece, originally left out of the Eurozone in 1999 because it didn’t meet the Copenhagen Criteria, was allowed in just two years later, its government subsequently openly admitting it cooked the books in the process. The “shocked, shocked” vibe out of the Commission was especially strong on this one. Popular symbol of ethical capitalism, Goldman Sachs, who you may recall donating a half million pounds to Remain in 2016, was involved in a massive credit swaps scheme to mask the size of the national debt. Such legal elasticity did the Greeks no good in the long run, particularly if one accepts the claims by Yanis Varoufakis of Troika double dealings in their talks over their debt terms. Equally lawlessly, but much more sagaciously, despite having no legal opt out from the treaty obligation of having to join the Eurozone, fellow member state Sweden has simply declined to do so.

There is something tawdry about the domestic British debate on our dealings with the EU. Lawyers here can, for free, no fee involved, froth themselves into frenzies of pompous excitement about our “law breaking” whilst, seemingly honestly, knowing nothing about the EU’s. This is not some “nerr, nerr, nah! you’re as bad as me!” playground argument. It’s an attempt to see what it is we’re dealing with. Claims as to UK lawlessness would hold a lot more water if it could be established we were dealing with an inherently lawful entity. But we are not, and this legal blind eye turned to the EU’s actual, chronic behaviour is dismally revealing.

Rules mean what they have to mean

Bernard Connolly wrote the book on the shenanigans behind the early Eurozone – The Rotten Heart of Europe – and the narrative he charted then has remained absolutely consistent: the EU has not changed its spots. The most infamous instance was how the terms of the Lisbon Treaty were flagrantly breached by reinterpreting Article 222, the Disaster Clause. This was drafted to legally allow EU-led involvement and funding for material support like helicopters or disaster relief experts to assist a member state hit by an earthquake or a 9/11 scenario. However, it was the nearest the Commission could find to any legal cover to allow EU countries to create a bailout fund when the Eurozone was in crisis; and to add insult to injury it was then cited that non-Eurozone states had to contribute billions to it as well.

Perhaps QCs don’t think foreigners can actually be expected to follow what passes for the law abroad

One might claim these are examples of realpolitik forced on the EU against its corporate better nature. That pretence is hard to set against the reality of the persistent abuse of Health and Safety as a loophole. In the 1990s, it was used to foist the Working Time Directive on John Major, after he had successfully chased it off by citing the unambiguous UK treaty opt from the Social Chapter. The proposals were simply resubmitted as a health and safety measure, where not only was there no solemn, Treaty-based British opt-out, but texts were agreed by QMV (in other words, our then, already much diminished, ability to block Commission directives was effectively zero). Twenty years later, after repeated attempts by the Commission to get a legislative foothold on North Sea energy production, the same trick was dusted down and applied there again via the EU Offshore Safety Directive, whose wildly invasive initial draft was only mitigated after considerable lobbying by the industry and UK ministers. This actual and sustained behaviour from the EU, if it’s known about by the wailing ghouls of the Bar Council, has, for reasons we can only speculate upon, not attracted their pious denunciations. Perhaps at some deep and unalterable level of un-Britishness, QCs don’t really think foreigners can actually be expected to follow what passes for the law abroad?

The technique is repetitive because dull and unrelenting works

Give an inch, and the EU will take 1.6 kilometres. The European Scrutiny Committee in 2007 for example reviewed Article 308 of the then treaties. This was one of the three “rubber clauses”, intended to provide legal basis for any actions not permitted by the treaties but where it was felt the EU might subsequently find a requirement to legislate to deliver the Single Market. The Committee caustically noted that it had found that “We, and our predecessors, have identified some proposals for legislation for which Article 308 was cited as the legal base but which, in our opinion, had no or no substantial connection with the operation of the common market.” Tellingly this also included the first attempt to introduce the later-abused Disaster Clause. The only voices in British domestic politics who were willing to speak up about how exactly the EU’s sacred legal order was really working out? Eurosceptics, who were dismissed as being “bores” and “fanatics”.

None of this bodes well for the EU’s future handling of the Withdrawal Agreement

Let’s see if we can gauge the risk from the cases that have ended up at Luxembourg. The common default amongst member states when outvoted or outwitted in drafting legislation is to bite the bullet and hope no one in the press notices, at least until all ministers concerned have moved on to new posts or careers. In some cases, a Government has been so opposed to the effect of a law that it has challenged its legal basis in the courts, despite limited prospect of redress from within the EU system. In Case T‑496/11, HMG successfully argued that the ECB was involved in an illegal power grab over payment, clearing and settlement systems. In C‑431/11, the UK objected to an attempt to circumvent an opt out: characteristically, the reviewing advocate general agreed with the UK’s analysis but suggested another legal clause that might permit it. In Case C-106/96, the UK successfully challenged the Commission’s funding under budget line B3-4103 for combating social exclusion, which the German Government also objected to as an intrusion on national competencies, but in the UK instance was also associated with reports of food aid given to the families of terrorist prisoners.

Incidentally, the UK appealed the Working Time case at the ECJ and was rejected largely on the basis of the bland assertions in the Recitals at the start of the text, which should help explain a lack of faith in the Luxembourg Court today as a trustworthy mechanism to sort any conflict of competencies problem out. It now inspires even less confidence to see how it has mishandled an internal legal fudge, in which a UK Advocate General tried to quietly resolve contradictions over winding down her term. Eleanor Sharpston’s removal from the CJEU is exceptionally striking not merely for the way the EU’s judges have badly mishandled their own back yard, but the cack-handed way they institutionally pursued it (the background is here). The whole story seems to betray a mixture of stupidity and vindictiveness more appropriate to Procopius’ secret diatribe against Justinian’s court. When we speak of the law here we expect detachment in its rulings: who credibly expects that of the EU’s “laws” and courts?

None of this bodes well for the EU’s fair, let alone competent, future handling of the Withdrawal Agreement. It provides ample justification for the Government, in its latest Brexit Bill, to introduce a safety valve over automatic direct effect in UK law. The EU institutions, simply put, cannot be trusted.