Will the Faull, Weiler, Sarmiento Brexit Plan work? What will?

Three eminent, self-confessed Remainers have published a legal plan to avoid Prime Minister Johnson’s cliff-edge of No Deal on 31 October. Law Professors Joseph Weiler, NYU and lately of Florence EUI, Daniel Sarmiento of Complutense University of Madrid and Sir Jonathan Faull, formerly head of the European Commission Legal Service, published their plan called ‘An offer the UK and EU cannot refuse‘ on the constitutional law site, Verfassungsblog.

If adopted, they hoped it could avoid the cliff edge if the UK’s rejected the Irish Backstop and the EU refused to yield. The Irish Backstop is a guarantee that the UK will respect Customs Union law for trade flows until the British introduced some technological or legal alternatives that would ensure the Irish Peace was not threatened and no customs posts would be re-established.

The proposal included features to guarantee both the integrity and autonomy of the EU’s and UK’s respective customs and their regulatory territories. It aimed to do so without a Customs Union between the two parties or a hard border between Northern Ireland and the Republic.

How?

The core of the proposal was the mutual recognition of both legal systems in the courts of both Ireland and the UK. An Irish judge would make sure the animal, product or service followed UK law if the destination was UK. A UK judge would make sure goods destined for Ireland and the EU would follow EU Regulations. The Proposal evoked considerable resonance in several media, both positive and negative; many questions were asked to which they addressed in a FAQ.

Prof Weiler writes that both legal systems must be equal and there would be no ‘outsourcing’:

“The current Backstop as it stands would already rely extensively on the integrity of the UK legal system and UK officials to collect the Common External Tariff of the projected Customs Union and to ensure that UK manufactured goods comply with the EU regulatory standards to give but two of many examples.
Is this, then, not “outsourcing”? In some cases as part of the Backstop the Union has insisted on on-site inspection and supervision by Union officials. That is included in our alternative Proposal too, albeit, importantly, on a reciprocal basis. In effect our proposal introduces all the cooperation procedures introduced in the Backstop, but it adds further instruments, as well as domestic remedies, including criminal penalties, to ensure effective enforcement.

Furthermore, the proposal incorporates a dispute settlement mechanism based on the withdrawal agreement’s enforcement mechanisms. Overall, then, this can hardly be considered to be any more “outsourcing” of the customs union than the Backstop itself envisages – in fact it is less. And, not to be forgotten, the UK under the Proposal would be “outsourcing” control of the integrity of its customs and regulatory territory to the Republic.

What is sauce for the goose is sauce for the gander. It is somewhat perverse to characterize an arrangement based on reciprocal enforcement, joint inspections, close cooperation and mutual trust as being a form of unacceptable “outsourcing” to a third state. And if the premise of any agreement is that one cannot trust the other partner, the Backstop is doomed.”

Will it work? My answer is NO.

I base that on Schuman’s own words. It fails to understand the origin, purpose and future of the supranational system of democracy and law that Robert Schuman created with the founding fathers in the 1950s. That brought peace.

But the system was not completed democratically because of the antidemocratic opposition of Charles de Gaulle, an autocrat who seized power in France throughout the 1960s. Unfortunately afterwards instead of restoring the original Community system to its full glory, subsequent politicians showed themselves to be neo-Gaullists who preferred wheeler-dealing in closed Councils to transparent democracy and proper elections.

Why won’t the professors’ scheme work?

What may be sauce for the goose may be sauce for the gander but the judicial source of decision-making for the EU-27 goose is not the same as the source for an independent, post-Brexit UK gander or any other third State.
Gaullist smoke still blows over reality. You either have a fully working, democratic Community system with its law machinery fully integrated by the people's consent or you revert to War.

1. Complexity. Take the case of the 2013 horse-meat scandal when 70,000 horses in N Ireland went missing and ended up in lasagna and other food products. It was found that the ‘beef’ was not only horse and pig meat but also chicken feathers. (https://democracy.blogactiv.eu/2013/02/21/elysee2-horsemeat-fraud-and-de-gaulle%e2%80%99s-cuckoo/) The ‘meat’ travelled across the EU through possibly half a dozen countries from Romania, Luxembourg to UK (and other) dining tables.
What would have happened if UK and/or N Ireland were not members of the same legal system whether for quality control or ’severe criminal fines’?

2. Two different levels of legal order. The Community system is based on what Schuman called an independent international judiciary, a supranational Court.
National Courts are based on judicial principles of natural law (honest analysis, fairness etc) that should be universally recognized but also on determining the material interests of the parties. Interests are determined inside a national context. Interests differ across borders and among individuals of different backgrounds. Who owned the chicken feathers? Were they sold legally? How, where and when did the pig turn to beef?
National courts are competent in analysing and judging the interests within their domains. They are not generally recognized beyond their borders.
Mutual recognition and control would have to involve not only UK with Ireland but all the other EU Member States. At each stage it would have to be identified as being for ‘UK export’ or ‘EU export’ as various, multiple -origin ingredients made their way to their final designation of UK table-ready or EU.
This sort of multiple origin and value-added is likely to be more complicated for foods and its associated criminal activities than cars and machinery.

3. Backstop guards integrity. It is not a matter of the EU not trusting the Brits but guarding the integrity of its independent supranational judiciary.
The backstop is not a bargaining chip but a guarantee of the integrity of the whole legal order.

4. Undermining Europe’s purpose. Removing the backstop is even more dangerous than letting the integrity of the European legal order go down the plughole.
The backstop is the plug to retain Europeans’ pledge for No More War inside the same Community system.
The European system was set up to make war ’not only unthinkable but materially impossible’ (Schuman Declaration).
The EEC was designed to prevent Trade War turning to hot war, and Euratom was to prevent Atomic war by having community ownership of fissile materials (www.eurdemocracy.com ).
This is why the European Court is the final authority (Luxembourg for Community matters and Strasbourg for democratic Human Rights.)

5. Governments change laws and systems fail. Legal systems are also subject to deterioration and decay. In UK the parliamentary customs of Erskine May are changed and undermined within a span of months. Inevitably the legislative process too.
The first danger signal for Europeans is in Human Rights violation by government systems. When the national system is found wanting, there is a possibility of the Council of Europe suspending the Member State. Greece was suspended under the Colonels.
When the Greek legal order changed, mutuality was impossible. Recognition of the Human Rights Convention by autocrats meant nothing. (Politicians do cheat and lie!)
That is why mutual recognition of European and third State systems is not possible. It is incompatible with a single source European Legal Order.

The Schuman Solution.

The only proven way to ensure that both sides in a dispute are content with the outcome is to make sure that their rights are respected — starting with human rights.

What is obvious to most thinking citizens but is not blindingly obvious to politicians is that citizens’ human rights and fundamental freedoms have been totally ignored ever since the Maastricht Treaty. Politicians have changed the original Community treaties designed to stop war into a power grab often against the people’s will, public opinion and opposite to what to the people say in referendums.

When the British were asked to vote on Article 50 of the Lisbon Treaty on European Union, it was totally illegal. They had never agreed to the Lisbon Treaty. They had not agreed to the European Union in the first place. They had only agreed to the European Community by referendum in 1975.

The 1975 referendum is still the people’s voice on the matter. When in 2016 Britons voted to leave the “European Union” it means that for them the Treaty on European Union is dead! Europeans want to revert to the democratic European Community.

The French and Dutch voted in referendums against the articles that were latter incorporated in the Lisbon treaty.

And the British referendum on the Constitutional treaty, that had been set for the period after this, was withdrawn. Politicians said there was no chance of UK and many other countries agreeing to it. The Constitutional Treaty had to be withdrawn. But it wasn’t.

It was re-introduced as the Lisbon Treaty against the wishes of practically all Member States!

Europe’s new constitutional arrangement –that politicians acknowledge had no public support and would be rejected in a vote — was imposed by a cartel of political parties acting as autocrats. This is a POLITBURO system. It owes its heritage both to de Gaulle and the Soviet system!

What should be done? So first, Britons have to vote on whether they agree to the Lisbon Treaty before any action can be taken about withdrawal. Governments can’t use Article 50 if the Treaty is not authorised by referendums. Governments of all colours refused to recognize this elementary human right of the citizens to vote their assent or dissent. They need a referendum on the Lisbon Treaty. Other countries should vote on it too. Politicians refused them the chance.

Britons also need to have a referendum on withdrawal from the Euratom treaty. The British government says that UK is leaving Euratom. But the Government never announced that it was part of the 2016 referendum. No publication mentioned that it was under consideration. No minister said UK would withdraw from Euratom if citizens voted to leave the EU. And no ballot paper in the Referendum of June 2016 mentioned leaving Euratom.

If Europe is to have a realistic future, the citizens must have their rights respected and leaders should be replaced with honest ones.