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Is this Brexit deal really the best that Johnson could get?

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THE EU Referendum was won by those who wished to reclaim our sovereignty: to take back control of our money, borders, laws, seas, trade and courts. But does the Withdrawal Treaty and the UK/EU Agreement on Trade and Cooperation restore the UK sovereignty?

1 The Withdrawal Treaty:

a) pledged upwards of £30billion of UK taxpayers’ money as a divorce bill to pay for EU pensions and other liabilities, despite the House of Lords advising that in law we owed them nothing.

b) imposed EU law on Northern Ireland, which remains in the EU Single Market for goods and will apply EU customs rules at its ports, even though the region is still part of the UK customs territory. The citizens of Northern Ireland have no say in the inception of EU law until the expiration of four years when the Northern Ireland Assembly can decide if they wish to withdraw from the EU Single Market and Customs Rules.

c) Includes clauses giving wide-ranging and long-term jurisdiction over the UK to the European Court of Justice, a foreign court, in complete disregard for normal international treaty practice. The ECJ is to have jurisdiction over EU immigrants until December 2028.

2 The UK/EU Agreement on Trade and Cooperation:

a) makes provision for a transition period of five and a half years during which 25 per cent of EU fishing quota will be transferred by phasing giving the UK 66 per cent of the total fish by June 30, 2026. Thereafter our territorial waters (200 miles from our coastline and one half of the English Channel) will be ours to control. If the EU quota is less than as at June 30, 2026 the UK will be liable to pay compensation for the period from July 1, 2026 to December 31, 2026. The EU can impose economic measures, such as tariffs, against the UK, if not satisfied with its quota. It must be borne in mind that we export a substantial amount of fish to the EU.

b) makes a zero tariff and zero quota trade with the EU available in goods. This suits the EU when we currently have a £100billion a year trade deficit in goods. They sell to us more than we sell to them. Financial services, which accounts for 80 per cent of all exports, on which we have a trade surplus, are to be negotiated.

c) enables the UK Government to pursue a sovereign immigration policy independent of EU free movement.

d) makes provision for a ‘level playing field’ concerning state subsidies to industry, standards in goods, environment, labour law, social policy and climate change. We have signed up to a non-regression clause, which means that we will comply with present EU regulations. If the EU make changes to those regulations, and the UK does not comply, the EU can apply to the independent arbitration panel complaining that the non-compliance harms their industry, trade, or is unfair competition. The EU would have to prove its point and that the divergence is material and produce evidence of damage suffered. Sanctions, which could include tariffs, must be proportional. The UK can also take the EU to arbitration on the same basis.

e) makes no provision for a role of the ECJ (a judicial body bent on furthering the EU project). Instead there is independent arbitration, usual in trade agreements and treaties.

f) provides for a review every four years and termination by 12 months’ notice.

And so, ladies and gentlemen readers, it is a matter for you. Do you think our future relationship with the EU restores sovereignty? Is it the best that Boris Johnson could achieve given the poor hand he was dealt by Theresa May?  

Since 1973 the EU economy has grown in size, but the rest of the world economy has grown faster. The EU is bureaucratic and sclerotic. Its rules and regulations stifle enterprise and wealth creation. We have currently negotiated 63 trade deals outside the EU. The vibrant markets include the Commonwealth, particularly India, Japan, China, the USA and Brazil. We should apply to join the Asia Trade Bloc (TPP). If we expand our trade globally, tariffs administered by the EU would become less important, bearing in mind that tariffs can also hurt the importer with goods costing more. Since 1999 the share of UK exports to the EU has fallen from around 60 per cent to 43 per cent. Non-EU trade is rising fast and amounts to 57 per cent of our exports.

Only 5 per cent of our firms export to the EU. That means that 95 per cent should be freed from the suffocating EU red tape by UK legislation.

Outside the EU Customs Union, which is a tariff wall, imports from outside the EU will be cheaper and our negotiated trade deals will no longer be negotiated by France and Germany.

A concern is that the Trade Agreement does not deal with financial services. London pays a third of UK tax to the Exchequer. The EU has refused to reciprocate financial equivalence and is withholding co-operation that it offers to New York or Singapore in areas such as derivatives. Perhaps this is for the purpose of squeezing as much business as possible out of the City of London and into its own financial centres.

The European Union (Future Relationship) Act has been passed. Just to remind readers that the Human Rights Act 1998 is still up and running, although the Government are talking of amending it by placing more emphasis on the criminal convictions of potential deportees.

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John Hayter
John Hayter is a retired Higher Courts Solicitor-Advocate (Criminal Law).

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