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Will Britain really have a debt to the EU after Brexit?

15 June 2019

7:25 AM

15 June 2019

7:25 AM

If a lawyer advises you to pay money which you do not owe, and you do so, then you can sue that lawyer to compensate you for the loss. That’s because the lawyer owes his client a duty to not give wrong advice. Does a politician or a journalist owe that duty? Can we sue them if their advice is wrong?

We need to know an answer to this as a nation, because far too many people who should know better, are wrongly advising the British people that they owe a ‘debt’ to the EU. The people who use the word are not using it metaphorically, indeed how could they, we’ve been a net contributor to the club for years – there’s no moral debt. These people, like the MP Chris Bryant, often describe it as a ‘legal debt’, presumably to make it sound more believable.

Before giving advice a lawyer would have to consider the evidence. Does a politician? What is the evidence for a ‘legal debt’ from the UK to the EU?

A neutral committee of lawyers, assembled by the House of Lords, published a report on 4 March 2017 which considered all of the issues and concluded there was no legal debt. The less neutral, but no less able, Lawyers for Britain reached the same conclusion in September 2017.

Counter arguments are made, perhaps the best is by Michael Waibel of Cambridge University. He concludes there may be a legal obligation if Article 70 of the Vienna Convention applies, but recognises the ECJ’s jurisdiction ends when we leave. His argument has two problems: we’ve seen how the Vienna Convention does not apply generally to the issue in the problems over the backstop, and, even if he’s right, Article 70 is very vague, only giving the EU rights to money the UK owed under treaty prior to our termination.

If the two reports from 2017 are right, no debt. If the counter arguments are right, then the UK may have to pay sums it has already signed up to (and ongoing pension contributions). But as the EU treaty is vague, that’s a matter for discussion. So is that a debt? No. That’s an issue to discuss and work out.

It is true that the Withdrawal Agreement (WA) tried to settle this, and did so at a very high cost to the UK – much more than £39bn and determined not by us, but the EU. Agreement was reached in principle. Is that a debt? No. An agreement in principle is not a binding debt until you sign the contract – which parliament, wisely, refused to do.

Is it £39bn? This is even easier – no. It never was £39bn. For a start, any sum will be in €. Secondly, taking the EU case at its highest, the UK might owe money because it agreed a 2014 to 2020 budget with the EU. But in law often simple facts are crucial – it’s currently 2019. During the 3 years of our political impasse, we’ve been paying our contribution (perhaps we shouldn’t have done, but we did). There’s no debt if we’ve paid it off.

Pension commitments are often raised, but in reality the UK can and no doubt will, keep paying Lord Mandelson’s pension directly, without needing to give the EU anything. My view is that the UK should argue its best case – I’m a lawyer, that’s what we do for our clients, our politicians owe us the same care. Under our best case we owe nothing. Until the EU evidence something different, that is where we should stay. Indeed, as a net contributor, there’s an argument we are owed money instead.

But until something is agreed there is no ‘debt’ – legal or otherwise. Foreign politicians can be forgiven making misleading statements, it is in their interests, UK politicians should take more care. Boris alone seems to have a grip on this. In their desire to beat him, I hope no one else takes a position against the interests of us all.

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