Wednesday, April 24, 2024
HomeBrexit WatchWith May’s deal dead, what Boris must now put right

With May’s deal dead, what Boris must now put right


WHEN, in the course of human events,’ Jefferson wrote in the preamble of the American Declaration of Independence, ‘it becomes necessary for one people to dissolve the political bands which have connected them with another . . . a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.’

The causes which impelled the campaign and the vote for separation from the EU have been documented in great detail over many years and on numerous occasions: 500 pages on the decades of deceit by UK prime ministers and ministers about the political goals of the European Union; more than 1,000 pages on the regulatory constraints imposed by the EU on UK industry and the progressive surrender of UK sovereignty, analyses of international databases showing that the benefits of EU membership for UK exports were largely imaginary, with no discernible impact on GDP growth and comprehensive updates by sector showing the sharp contrast between rapid growth of exports to the rest of the world versus their dismal near-stagnation over the years of the Single Market.

This literature on the causes which ‘impelled separation’ far exceeds, in rigour and depth, that making a case for continued membership, though since the government and the greater part of the traditional opinion-forming apparatus of the UK, both Houses of Parliament, the press, BBC and other broadcasters, the CBI and other business groups, universities, charities and quangos, even the Church of England have preferred Remain, it has often not seemed that way. The case for remaining in the European Union, however, has not been based on the historical record, and has rested, probably to its own disadvantage, almost exclusively on speculative predictions about the adverse consequences of leaving by HM Treasury. Other Remain arguments, such as the EU contribution to the maintenance of peace in Europe, or as a support for fledgling European democracies, or any other inherent merits of the EU project, have barely been mentioned.

Leavers have not, however, been nearly as forthcoming in making the case against the 584-page draft Withdrawal Agreement negotiated by Theresa May and Michel Barnier, partly because its legal terminology and its seeming jumble of cross-referenced parts, chapters, titles, articles, annexes and protocols is not easily understood by lay readers, but also because parliamentary criticisms of it came from widely differing angles, some more concerned with toppling the Prime Minister who negotiated it, rather than the merits or demerits of the draft agreement itself. The objection to the backstop was clear enough, as was the Attorney General’s lethal blow against it in the House of Commons, that it could not be escaped without EU permission, but evaluation of the draft agreement as a whole requires informed and extensive commentaries by lawyers, and help from accountants would intermittently be useful.

Not everyone can be expected to have such commentaries to hand or to read them, and hence argument about its substance has been limited. Its opponents have sometimes been dismissed as ‘purists’, who failed to see that the perfect may be the enemy of the good, as ‘ideologues’ unwilling to make compromises, or as the ‘extreme Right’ of the Conservative Party engaged in an intra-party squabble.

Anyone who makes such arguments has first to read and respond to the most authoritative commentary to date written by Martin Howe QC, Sir Richard Aikens, former Lord Justice of Appeal, and now visiting professor at KCL and QMC, and Thomas Grant, a practising international lawyer and Fellow of the Lauterpracht Centre for International Law in Cambridge.

Once they do, they will know that the labels ‘ideological’and ‘purist’ and ‘Right-wing’ provide little insight into the numerous objectionable features of the draft agreement. Despite the claim made at its outset that ‘this Agreement is founded on an overall balance of benefits, rights and obligations for the Union and the United Kingdom’, their detailed analysis found numerous articles that were clearly not in the interests of the UK and entailed no counter-balancing obligations on the EU. UK courts will be obliged, for instance, to apply EU law and even to strike down Acts of Parliament if they are found to contradict EU law passed after the UK has left the EU, and the ECJ can impose ‘uniquely stringent financial and trade penalties’ on the UK for any breach of the agreement for many years into the future.

Even the seemingly neutral parts of the draft agreement, such as the reciprocal rights of UK and EU citizens, are heavily tilted so that the treaty may be used to uphold the rights of EU citizens in the UK as defined by the ECJ for many generations into the future. There are no such rights for UK courts on behalf of UK nationals. And the seemingly neutral arbitration clauses have a back-door mechanism whereby questions of law must be ‘interpreted’ by the ECJ long after the end of the transition period, while the UK is prohibited from recourse to truly impartial dispute settlement procedures, such as those of the WTO. The backstop attracted most attention, but it was merely one objectionable element in the draft agreement alongside many others.

‘A decent respect for the opinions of humankind’ therefore now requires that the objections to this draft agreement be stated, clearly and succinctly. Mr Barnier and other representatives of the European Union have repeatedly declared that they will not renegotiate the present agreement. If that proves to be the case, and the UK is obliged, as a result, to leave without ratifying this draft agreement, a statement of the objections to it will be doubly important since supporters of it have threatened that they will do their best to bring down the Government, and provoke a general election.

In that election the new government would be obliged to say why it has rejected the draft agreement and to declare the principles on which it would act towards the EU in the absence of any written agreement, and the principles which would inform its negotiators when the EU is willing to re-open negotiations on trade, and on the matters left unsettled by the rejection of this draft withdrawal agreement. In a sense, the new Prime Minister will have to embark on a general election campaign on his first day in office. After months of confusing parliamentary debate, it will therefore serve a useful purpose if the principles that separate those who find this draft Withdrawal Agreement acceptable from those who think that it does not honour the referendum become known well in advance of any actual election campaign.

It also important to explain to the electorates of the EU27 countries, who might otherwise depend entirely on the Commission version of events, the reasons why this draft Withdrawal Agreement was rejected, so that they too can decide whether the objections of the UK were based on principles they find acceptable, and whether the Commission was right to rule out amendment of the draft agreement and make ratification of it a precondition of further negotiations with the UK.

The first ten of the principles given below are written as if to inform a new withdrawal agreement, though the complaints against Mrs May’s draft may be readily inferred from them. The numbers that follow each entry in brackets identify the articles or protocols in the Withdrawal Agreement which ignore or contradict these principles, or raise doubts about their application under its terms. Four more principles which refer to matters which are covered only incidentally in the draft Withdrawal Agreement have been added to the list. They confirm that the UK would continue to give voluntary support and co-operation for EU policies that it has supported as a member, and which formed no part of the case for its withdrawal.

  • Expatriates of the EU27 seeking rights of residency in, or nationality of, the UK will be treated in the same manner as UK expatriates seeking rights of residency in, or citizenship of, EU member countries. Thereafter they will be subject to the law and courts of the UK, with rights and obligations no different from those of other UK residents and nationals. (127, 159)
  • UK nationals who are former or retired EU officials will enjoy no special immunities or privileges that distinguish them from their compatriots. They will be taxed in exactly the same manner as other UK nationals who have spent part of their working lives abroad. (111, 113, 116, 117)
  • From the day of its withdrawal, courts of the UK will no longer be subject to the rulings and jurisdiction of the CJEU. The rights and obligations of residents in, and nationals of, the UK will be those established in UK law not those of the TFEU. (4, 7, 24, 25, 31, 110, 127, 131, 158, 162, 163 Protocol on I&NI:14, Annex 4)
  • The UK will meet all financial commitments to the EU that it made before the day it invoked Article 50 of the Lisbon Treaty, March 29, 2017. (137, 140-6, 156)
  • To resolve disputes on the UK’s remaining financial or other obligations, both the EU and the UK agree to be bound by the decisions of independent arbitration panels from which there will be no appeal. (160, 161, 164, 168, 174)
  • The UK will not incur any future financial liabilities that result from decisions of the EU or any of its agencies in which it has not participated. (127, 132, 142, 143, 150-154)
  • The UK is committed to as much free trade with the EU as can be agreed between the parties, but will not sign any trade agreement to that end which contains special preconditions, clauses, provisions and penalties that are not replicated in other EU trade agreements. (54-61, 170-180 Protocol on I&NI: 14, 15, 16, 17 Annex 2, 4)
  • HM Government will not repeal or ignore the Act of Union of 1801 (Article VI) which is the legal basis of the present customs union and common market of Great Britain and Northern Ireland. (Protocol on I&NI passim)
  • As a co-signatory of the Belfast or Good Friday Agreement of 1998,the government of the United Kingdom will not allow any of its provisions to be altered or disturbed by any subsequent agreements. (Protocol on I&NI passim)
  • The United Kingdom will not be bound by any agreement negotiated by its representatives until it has been ratified, in accordance with its normal practice, by both Houses of Parliament, received Royal assent, and the instruments of ratification have been exchanged. The provisions of any agreement not ratified in this manner are void.(184-5)
  • HM Customs will immediately cooperate full-heartedly with Irish Tax and Customs to prevent EU Single Market rules being undermined by the trade of Northern Ireland with the rest of the world, whether directly or indirectly via Great Britain, and expects the full-hearted cooperation in return to prevent the UK’s Single Market rules being undermined by the Republic of Ireland’s trade with the rest of the world.
  • The UK remains firmly committed to the collective defence of Europe via NATO. If invited, it will participate in any EU defence and security programmes that it decides are compatible with its NATO and other commitments.
  • The UK has strongly supported the EU programmes that promote the exchange of students and scientific researchers. If invited, it will continue to participate in them enthusiastically on the same terms as other non-member countries.
  • The UK also strongly supported EU efforts to protect and improve the marine and terrestrial environment, and will continue to collaborate with the EU to that end.

This article was reproduced by kind permission of Brexit Central

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Michael Burrage
Michael Burrage
Michael Burrage is a member of Economists for Free Trade and a Senior Research Fellow at Civitas, which published his paper, It’s Quite OK to Walk Away.

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