There is a certain irony in the legal action being pursued by the European Commission against the British Government for (allegedly) being in breach of the Withdrawal Agreement. Agreement to the Withdrawal Agreement, by the British Government, was secured by no less serious an act than a clear breach of the Lisbon Treaty.
The EU from the time of the referendum onwards, has insisted that agreement to the procedure for withdrawal must be secured before negotiations leading to any future trade agreement could begin. Both the Theresa May Administration and then the Boris Johnson Administration acquiesced in that demand. That is what led to the Withdrawal Agreement being agreed before trade talks began. However, the British Government’s acquiescence does not make it legal. The EU’s demand was in clear breach of the Lisbon Treaty.
Article 50 of the Lisbon Treaty deals with the withdrawal of a member state from the European Union. It states: “the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.” The arrangements for its withdrawal can only take account of the framework for its future relationship with the Union, if that future relationship (such as trading relationships) have already been agreed. In other words, Article 50 is prescribing, quite clearly and unambiguously, that our future trading and other relationships should have been agreed, before we proceeded to negotiate about the arrangements for withdrawal, including making promises to pay large sums of money to the EU as a sort of golden goodbye.
The British Government could argue that the whole Withdrawal Agreement is invalid, because it was secured by a clear breach of the Lisbon Treaty It could say, quite simply, “No trade deal, no money”. Why am I not confident that the Government will use that argument?