This refers to the Member States meeting as the European Council on 17-19 February 2016, when they agreed a new Settlement for the United Kingdom within the European Union. The Settlement consists of seven texts: a Decision and a Statement of Heads of State or Government and five Declarations.
A central requirement for the Prime Minister, says the briefing, was that the Settlement should be legally binding and irreversible. The EU Member States have declared that the first part of the Settlement, the Decision of the EU Heads of State or Government, is legally binding. It then goes on to say:
But the combination of international law and EU law makes this a very complex issue, and there are elements capable of supporting each side of the debate. The Decision is not a binding EU treaty or EU law in itself.
This is very helpful as far as it goes, especially the statement that: "The Decision is not a binding EU treaty or EU law in itself". If cannot bind the EU institutions.
Most legal opinions consider it a binding treaty under international law, largely because the parties to it have declared that they intend it to be legally binding. If this is correct, it would bind the parties (the governments of EU Member States) but not the EU institutions.
However, the wording and form of the Decision are more like those of a non-binding agreement. Alternatively it might be somewhere in between: an agreement that is binding in a ‘weak’ sense because under both international law and EU law it must be taken into account when interpreting the EU Treaties.
But even if the Decision is accepted as legally binding under international law, it is not necessarily legally enforceable under either EU or domestic law. The Court of Justice of the EU could not enforce the Decision, although it would have to take it into consideration when interpreting the EU Treaties, and might for instance be asked to consider whether secondary EU legislation envisaged by it was compatible with the EU Treaties.
Of course if in future some provisions of the Decision were incorporated into the EU Treaties, the Court of Justice could enforce those provisions. The UK’s domestic courts could not enforce the Decision itself unless it was given direct effect in the UK, and even then they would be still bound by the EU Treaties. It could be problematic if either the Court of Justice or a domestic court found an inconsistency between the Decision and the Treaties.
The Decision probably cannot be reversed without the consent of the UK. But it cannot guarantee all of the outcomes envisaged in it. This is because some depend on factors outside the control of the parties to the Decision, such as national referendums on Treaty change.
Sadly, the briefing note displays the same myopia present in most of the pundits, in not considering whether this is a valid treaty. Yet, there can be no question that it seeks to bind third parties to its agreement – namely the EU institutions, with this phrasing in the decision that:
The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States, so as to make it clear that the references to ever closer union do not apply to the United Kingdom.
This, in respect of both economic governance (where similar phrasing is used) and in relation to "ever closer union" means that the treaty is invalidated by Article 34 of the Vienna Convention, which states that "a treaty does not create either obligations or rights for a third State without its consent", and Article 61 on the impossibility of performance.
The lack of detail on this, and the omission of any reference to the International Court of Justice at The Hague – which is the arbiter of disputes over international agreements – reflects a certain superficiality in House of Commons briefings, and their tendency to be over-influenced by persons of "prestige".
Thus, despite running to 46 pages, the briefing note is less helpful than it might have been, failing specifically to point out that the treaty is invalid (insofar as it does seek to bind third parties).
Nevertheless, it is evident that the briefing is quite firm in stating that the Decision cannot be binding on EU institutions and is equally evident that the active participation of those institutions is required in order to give effect to key elements of the treaty.
On that basis, one can rightly conclude that Mr Cameron's claims of having brought home a binding treaty cannot be justified in any material sense. His claim, for instance, that the concept of "ever closer union" no longer applies to the UK cannot be true, since it requires a change to EU treaties. There has been no change to EU treaties, and the Decision cannot require any change to be made.
In this context, we have the statement in the Government's Best of both worlds document (para 2.129), cited in the HoC briefing, that: "This Decision is legally-binding under international law and will take effect if the British people vote to remain in the EU".
The briefing – as does our own analysis - makes this out to be a lie, and while the likes of Andrew Lilico
take fright at us calling a spade a spade, there is no better or more accurate way of putting this. The Government, with Mr Cameron at its head, is perpetrating a deliberate, studied lie, in a premeditated attempt to deceive the British people.
It is perhaps not for a House of Commons briefing paper to say this, but the inference is so clear that, if Parliament was worth its salt, MPs would be calling the Prime Minister to account. Instead, we get prissy hypocrites taking us to task for calling Mr Cameron what he is – a liar.
To some this is supposedly "abuse", but there must be a limit to the circumvention that has become the norm amongst the bubble-dwellers. When the Prime Minister sets out deliberately to lie to the British people, for political effect, this should be pointed out. To avoid doing so is cowardice.
There we have it. Lying over key policy areas has now become a central part of political discourse, yet the only criticism comes when we point that out. At least, though, we now have a House of Common report that takes us a little closer to recognising that reality.
Perhaps, by the end of this campaign, more will be prepared to say it openly.