On Wednesday October 2nd, Boris Johnson put forward his new proposal for an agreement with the European Union. This proposal outlined a potential replacement to the Protocol on Ireland/Northern Ireland, conventionally known as the backstop. Apart from the backstop, there were no other proposed changes to the text of the Withdrawal Agreement (WA) negotiated by Johnson’s predecessor, Theresa May. As Boris Johnson and the EU potentially enter a new round of negotiations, we set out below why the WA even without the backstop is still a bad deal for our country.
The Withdrawal Agreement is not the Brexit we voted for in 2016. Instead, our country will be reduced to non-voting member status in the European Union, whereby EU Law and the decisions of EU institutions will continue to apply here without any mechanisms for us to object. The ECJ will retain supremacy over our own courts and, in fact, will be the ultimate authority in any disputes over the WA via a ‘neutral’ arbitration panel that must defer to it. This humiliating ‘transition’ arrangement is set to last until the end of 2020 but can––and very likely will––be extended for two more years beyond that date. Some of its terms, including those regarding ECJ jurisdiction, will last well beyond the end date of the ‘transition’ period.
And transition into what? In our negotiations for our future arrangements with the EU beyond the transition period, we will be obliged to use “best endeavours in good faith,” in line with the disastrous Political Declaration. That document, accompanying the WA, contains significant major concessions on staying within the customs union, on achieving a ‘level playing field’ in accordance with EU regulations, on sharing our fisheries, on integrating our military into a new EU security framework, and more. The transition period would thus be only the beginning of an unfavourable, subservient relationship with the European Union.
Upon accepting these terms, we will have to pay the EU billions of pounds.
And what will we have to show for it?
NON-VOTING MEMBER STATUS
(ARTICLES 4.1, 4.2, 6, 7.1, 40–49, 95.1, 127, 128, 131)
In the days, weeks, and months after the WA takes effect, the laws and institutions of the European Union will still rule over our country. This arrangement is made most explicit in Articles 127 and 95.1, which respectively state:
“Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.” (Art. 127)
“Decisions adopted by institutions, bodies, offices and agencies of the Union before the end of the transition period…shall be binding on and in the United Kingdom.” (Art. 95)
As stated, EU Law, including those laws “amended or replaced” during the transition period (Article 6), will still apply here. Our country will further continue to be bound by new international treaties negotiated by the EU with third parties (Article 129) and by the complex directives of EU bureaucracies (Article 95.1). We will have no veto nor say over these changes which will affect us. Far from democracy, this would be tyranny. It would be, as Boris Johnson himself has said, “the first time since the Norman Conquest that a foreign power has passed the laws of this country.”
Our sovereignty is most explicitly given away in Articles 7 and 128, which respectively state that while we will still be considered a “Member State” of the European Union for all intents and purposes, we will be excepted from “the participation in the decision-making and governance of the bodies, offices and agencies of the Union” and that our parliament will “not be considered to be a national parliament of a Member State.” This is vassalage. When we voted to leave, we did not vote to leave our sovereignty in the hands of others. We wanted no say in the laws and directives of the European Union because we assumed such laws and directives would no longer apply here.
And what if Parliament, upon realizing its new circumstances, changed its mind on the WA and wanted to pass laws that diverge from or contradict Union law? Could we withdraw from this Withdrawal Agreement? Far from it. Article 4 states that the provisions of the WA and the Union law made applicable by the WA shall have “direct effect” over our country. As a result, EU Law retains supremacy over UK law. Article 4 spells out the implications of ‘direct effect’ in its second clause:
The United Kingdom shall ensure compliance with paragraph 1… to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation. (Art. 4.2) [Emphasis ours]
Whether Parliament can agree to a legally binding treaty that restricts the ability of future Parliaments to draft laws will likely be subject to a legal dispute. As it is, particularly without an exit clause, the WA will prevent us from drafting our own laws according to our own wishes. Direct effect thus means our courts must strike down any laws that conflict with the WA. And if our courts refuse to do so, there exists a higher court…
The WA ensures that our courts will have to defer to the rulings of the Court of Justice of the European Union. Several Articles in the WA decisively delineate ECJ jurisdiction over our courts. Article 4 states that the decisions of the UK courts must be “in conformity” with the relevant case law of the ECJ for the duration of the transition period and, more egregiously, that UK courts must continue to pay “due regard” to relevant ECJ case law after the transition period. Article 86 states unequivocally that the ECJ maintains jurisdiction over the United Kingdom during the transition, and per Article 89, their judgments will have “binding force” over our laws and courts, even when a case lasts beyond the end of the transition period. In fact, Articles 87 and 158 give further voice to the ECJ after the transition period has expired for “four years” in cases brought by the European Commission, and for “eight years” in cases concerning Citizen’s Rights. As British judges will no longer sit on the European Court, our highest court will be an entirely foreign court. Our legal disputes will be decided by judges with no prior loyalties to our institutions and traditions.
If the explicit stipulations in the WA prove insufficient to establish this supremacy, Articles 168 and 174 allow a backdoor for further control by the ECJ. Article 168 states simply that neither the EU nor the UK can defer to any international institutions for a dispute over the WA. Such a clause is not the standard for an international treaty. Instead, the WA provides for an “independent” dispute arbitration panel to resolve any disagreements. The catch, according to Article 174, is that this “independent” panel must defer to the European Court of Justice on all matters concerning Union law. What in the WA, however, does not concern Union law and its implementation? Article 174 thus means that the arbitration panel will formally resolve disputes merely by passing on the judgments of the ECJ. This is no neutral arbitration panel. It’s a façade behind which the ECJ will continue to exert its power over our courts and our laws.
THE EUROPEAN COURT OF JUSTICE
(ARTICLES 4.4, 4.5, 86, 87, 89, 95, 131, 158, 163, 168, 174)
Beyond the Transition Period: The Political Declaration
Some people will assert that the dreadful transition period will only be temporary. Yet, the substance of the WA, apart from the backstop, is this transition period. There is nothing in the WA itself that sets out what our relationship with the EU will be after the transition period has ended. The transition period is twice referred to as an ‘implementation period’ in the WA, but an implementation of what? The WA does not outline anything to be implemented. Which begs the question: why sign the WA at all? What, if anything, is in this agreement that is worth preserving?
Some parameters surrounding the terms of a future relationship are indeed laid out in the Political Declaration, which Article 184 requires the UK and the EU to use “their best endeavours in good faith” to follow. Article 184 is legally binding in nature (under Treaty law), and obliges us to keep to the specific parameters set out in the Political Declaration which constrict us in talks between the European Union and the UK concerning our future relationship. It will not be possible for either side to explicitly disavow these parameters once the WA goes into effect. Some of these parameters would pose serious problems for us. Furthermore as it is hard to prove “bad faith” in negotiations the EU would therefore be in a position politically to refuse to agree anything that didn’t conform to its vision of the UK leaving, i.e. formally leaving, but still controlled by the EU. Some of these parameters would pose us serious problems. Among others, three key concessions exist in the PD:
1) Committed to the Customs Union
The Political Declaration commits us to staying within the customs union and, in fact, to going beyond being part of the customs union. Paragraph 23 is the most explicit:
The economic partnership should ensure no tariffs, fees, charges or quantitative restrictions across all sectors, with ambitious customs arrangements that… build and improve on the single customs territory provided for in the Withdrawal Agreement which obviates the need for checks on rules of origin. [Emphasis ours]
The commitment to “build and improve” on the single customs territory contravenes the basic understanding that leaving the EU meant leaving the customs union. Without the ability to lower our own tariffs, we will find it impossible to negotiate our own Free Trade Agreements with other nations, and therefore, we will neither be able to buy products at cheaper prices than what is currently available in the EU, nor consequently be able to secure reductions in tariffs on our own exports to other countries. The requirement to eliminate any potential checks on rules of origin guarantees this restriction.
2) Level Playing Field
Furthermore, Paragraph 79 commits us to the EU’s “Level Playing Field”’ provisions, which means anything from state aid and employment standards to our taxes must be in alignment with EU regulations to “ensure open and free competition” between our businesses and the EU’s businesses. We would thus not be able to freely draft our own regulations or levy taxes, nor will we find it easy to provide extra support to our own industries. Without the ability to build our own independent, strong economy, there is no Brexit. The PD also further commits us to quotas and other concessions on our fisheries (Paragraphs 74 and 75).
The Political Declaration further outlines in Part Three a new security partnership with developing EU security institutions. In particular, Paragraph 104 envisions our collaboration with the European Defence Agency and the European Defence Fund, as well as fitting us into the framework of the Permanent Structured Cooperation (PESCO). Tying us to these new, more integrated defence institutions will be part of our commitment for a “broad, comprehensive, and balanced security partnership.” Most explicitly, Paragraph 101 specifies “close cooperation in Union-led crisis management missions and operations, both civilian and military.”
Last, but far from least, we have agreed to pay billions of euros (Art. 133) to the EU for leaving. Article 50 of the Lisbon Treaty does not specify any such pay out. We were thus originally obligated to pay nothing. Estimates for the total value of payments as outlined in the WA first arrived at £39 billion. After the extension until October 31, this estimate dropped to £33 billion (which is contingent on the end of the transition period remaining December 31, 2020), as we paid to stay in the EU these last few months. However, any disputes surrounding these payments will be overseen by the ECJ according to Article 160. If the ‘transition’ period is extended, Article 132 specifies that even more will be due, and Article 136 includes payments to the EU after the transition period has ended. The figure cited therefore can easily be much higher than the £33 or £39 billion now estimated.
And for all of these concessions, what will we get in return?
Will we be free to make our own laws? No.
Will we be free to fully rely on our own courts? No.
Will we be free to set our own tariffs and negotiate our own trade agreements? No.
Will we be free to use our own money as we see fit? No.
Will we be free to build the better Britain to which we all aspire? No.
Even without the backstop, the Withdrawal Agreement is not Brexit.
It is a surrender treaty that we could never leave without breaching international law.