Rumpole of the Berlaymont

The following is an exclusively obtained transcript of the summing-up by the QC for the respondents in the case Regina v. the European Commission and Others concerning the departure of the United Kingdom from the European Union.

Ladies and gentlemen of the jury:

Rarely can there have been a more vexatious case than that which is before you today. The proposed exit of the United Kingdom from the European Union has divided public opinion more than any other issue that has arisen in these islands since the Reformation, or perhaps more appositely, the Civil War. Both sides are convinced of the rightness of their cause. Neither is prepared to give ground. But my purpose today is not to persuade you of the justice of one side or the other. Rather, it is to demonstrate that the matter has effectively moved to the point at which resolution will be achieved by default following the decision of the British Government to set a date beyond which there can be only one outcome.

You have heard the Prosecution argue that my clients, Mr Jean-Claude Juncker, Mr Donald Tusk and Mr Michel Barnier, have acted in a manner prejudicial to the best interests of the people of the United Kingdom, contrary to the spirit of the Treaty of Lisbon (2007); that they have wilfully and without due consideration to the rights of the United Kingdom arrogated to themselves the ultimate power of decision; and that, having failed to secure the approval of the Westminster Parliament for the so-called Withdrawal Agreement, negotiated with a former prime minister, they now appear bent on expelling Britain from the Union at midnight on October 31st.

Ladies and gentlemen, I put it to you that right from the outset of this crisis it has been the view of the Leave faction in the United Kingdom that in the event of no settlement being found that satisfies either the British Government and/or the Parliament at Westminster, the UK will leave the EU without a deal. Indeed, the prospect of a precipitous break was widely welcomed, not least by the new prime minister, Mr Johnson, who gave the assurance that it would happen on October 31 with “no ifs” and “no buts”. It was Mr Johnson who informed the Commission in Brussels that he would only agree to open talks if the so-called Irish Backstop, negotiated and approved by his predecessor, was dropped in its entirely and on the further understanding that the rest of the withdrawal agreement should be considered, and I quote, “dead in the water”.

To my clients, this was entirely unacceptable. They had, after all, spent the previous two years negotiating with UK ministers and their designated representatives and had reached agreement only after a protracted give and take by both sides. Not only that, but they had twice extended the period for British endorsement, first from the original deadline of March 29, then again from May 22 to the end of October.

But still the UK prevaricates. It stands at the departure gate, but it refuses to board the flight. Its government, led by Mr Johnson, insists that “Brexit” will take place, come Hell or high-water, on October 31st. Yet, simultaneously, he demands that fresh talks be opened, with each of his pre-conditions met: no Backstop and an acceptance that the previous withdrawal agreement is “dead”.

But it does not end there, ladies and gentlemen. There is more. Because Mr Johnson now avers that Britain could crash out of the EU, yet somehow remain in the Single Market and Customs Union for another two years – something which in his previous utterances he denounced as a denial of the will of the British people as expressed in the referendum of June 23, 2016 . It would appear that the prime minister does indeed intend to have his cake and eat it.

But I shall not dwell on the deep inconsistences of this British government and its predecessor. For that, when all is said and done – or not done – is a political matter that must be resolved in the United Kingdom. My point here is to stress that the European Union, as represented by my clients, has not changed its stance or introduced any new complications. It has, to the contrary, remained steadfast in its pursuit of an agreement with the British Government. At a time when many other considerations required its attention – not least the economy, mass migration and the incipient revolt of several member states in the East – it allocated valuable time, money and resources over two long years to the search for an amicable settlement.

Having finally reached agreement with Mr Johnson’s predecessor in Dowing Street, the EU and the 27 awaited ratification by the British Parliament. No such ratification ensued. Instead, the House of Commons divided into those who approved the deal, those who wanted a much harder, No-Deal Brexit and those who believed passionately that Article 50 of the Lisbon Treaty should be revoked, keeping the UK a full member of the EU.

And there the matters rests. The United Kingdom appears to have no idea how to proceed, but wishes Brussels to ignore all previous understandings and to negotiate an entirely new settlement that would magically resolve all contradictions and allow the United Kingdom, having fought a second Battle of Britain, not against Naziism but against its friends and neighbours, to claim the victory.

Unsurprisingly, this is not what is going to happen. The EU has reached the limit of its patience and of its tolerance. It has factored Britain’s departure into its calculations and is ready to move on. It has done everything in its power, consistent with its constitution and its regard for the integrity of the Single Market, to accommodate a member state that wishes to leave the Union. It is not prepared to bend over backwards and to break its own foundational rules in order to placate those who wish, against all logic, to abandon their obligations within the terms of the treaty and yet to continue to enjoy the benefits of membership by way, as it were, of the side door.

The British Government says it will take the United Kingdom out of the European Union on October 31. So be it. The consequences, in the opinion of my clients, will be bad for Britain and bad for Europe. But the die has been cast and now is the time to accept the outcome. The United Kingdom has until 11.59 on October 31st to decide if it wishes to remain in the European Union on the terms it currently enjoys – absolved from membership of the single currency and the Schengen Accord on open frontiers and with its 30 per cent annual budget rebate intact – or to leave without agreement and without payment of the £39 billion “divorce deal” approved by Mr Johnson’s predecessor and her government.

Let me be clear. Brexit means Brexit. There can be no in-between settlement beyond the terms of the existing withdrawal agreement. In the event of No Deal, there will be no transition period. The United Kingdom will from the stroke of midnight on the appointed hour no longer be a member of the European Union. Rather, it will be a third country, without right of access to European markets beyond those that have yet to be confirmed by the World Trade Organisation. It will be outside the Single Market and the Customs Union. It will no longer be a member of Europol, or Euratom, or the Erasmus academic exchange scheme. It will not be party to the Galileo satellite navigation system or the European Space Agency. It will be on its own, an independent state that must henceforward negotiate its own path, including its future trading arrangements with the EU 27 and the 167 countries in the world beyond.

For that, ladies and gentlemen, is what Brexit without an agreement means. Nothing more and nothing less. I ask you now to absolve my clients of the charge that they have conspired to bring this situation about and to find instead that Britain, having instigated the break, has not only failed to understand the implications of its choice, but has throughout the entire process proved itself unequal to the task of sensible government. Members of the jury, the United Kingdom has made its bed, now it must lie on it.