Torturous deal could lock UK into servitude for a century

‘If we are to come up with a name, I would suggest it’s the deal’s Odysseus Clause. It will be a testing voyage of uncertain length’

Politics has its moments. The joy of being a forensic treaty archaeologist is that you get to dig around in all kinds of peculiar trenches, from the boiler clause in the Indian constitution to the guano article in Micronesia’s. Then there are the fancy names that arise. Take the foppishly-titled Passerelle clause from the Lisbon Treaty that allowed greater integration on the go.

It was so named after the bridges you see connecting buildings. However, the designers in their inventive exhilaration forgot that its most celebrated example is the Bridge of Sighs in Venice, named after the sad exhalations of condemned prisoners on their way to execution.

So what of this beefy 500-plus page Brexit agreement that has finally made its way out of the paddock and into the butcher’s yard? In a nutshell, the single greatest problem with this transition treaty is that it doesn’t guarantee the transit. It leaves us with the prospect of greater limbo than a Christmas special of Death in Paradise.

No Exit

The single greatest reason behind the current political flap is, ironically, because the draft settlement does not contain a neat equivalent to Article 50, the EU’s escape clause. Eurosceptics on the drafting convention that framed what would ultimately become the Lisbon Treaty challenged whether two years was too long and risked seeing a country’s decision to leave overturned by a determined establishment rearguard. That was prophetic then, and prescient now.

Instead of a secure time lock, this transition deal has Article 132 – a name that will forever live in treaty infamy. On the assumption that getting an end deal will be a tad difficult, perhaps because at least one of the two parties involved doesn’t really want it, it allows for a mutually-agreed one-off extension of the transition period. This, critically, will extend arrangements until the specified date of “December 31 20XX”.

The negotiators might at least have deployed a little unbridled optimism and suggested that the UK’s regulatory imprisonment in a second rate customs union might have been concluded a little earlier in the century. They could have added an extra decile, and with that digit confine the uncertainty merely to within the coming decade. But instead we are left with a variable that provides a potential Brexit end delivery date when everyone who voted on it is in their grave.

If we are passerelle-style to come up with a name for this, I would suggest it’s the deal’s Odysseus Clause. For it will comprise a testing voyage of uncertain length, and involves a high rate of attrition among the crew.

Its key significance lies in making a temporary deal potentially a permanent one, affecting how we view those clauses.

There are, unfortunately, a lot of problem areas in the text and any audit can only trowel the surface. So let’s briefly focus on some of the ones that haven’t hit the headlines.

No Say

Firstly, there are the clear problem areas. Article 128 covers the rights of the UK Parliament during the transition period, or more properly describes what will be stripped away. Currently, Westminster’s part in the EU system is not much more than being on the Christmas card list. Now, MPs even get removed from the consultation process, and are left with marginal engagement at the bottom of the food chain as legislative plankton. Coupled with national exclusion from other institutions, this leaves elected UK representatives with less of a voice than a local councillor from Lower Saxony.

EU judicial supremacy

EU paramountcy is extended to the court system with, under Article 162, the Commission having the right to proactively intervene and send legal opinions to UK judges to better guide them, indeed the option of seeking to turn up in person. Meanwhile, the obligation of “sincere co-operation” expressly continues to apply to UK civil servants and ministers, since Article 5 puts into the script a good faith clause. It’s precisely this principle that has been encouraging Whitehall not to cause a nuisance of itself to get the best deal. It’s also precisely that principle which conversely has seen the UK so abused in the past. Don’t think of complaining about this: Article 168 keeps any disputes in house and inside the EU systems, while

No control over fishing

Then there is the Common Fisheries Policy. It’s a bad enough pointer that the skeletal draft objective treaty state involves undefined “future shared stocks” and the prospect of joint management and shared stocks within UK waters. Meanwhile, during transition, the CFP continues. Worse, it seems quota will be set by the EU27 without the UK in the room.

Green bureaucracy

Then there are the ranging environmental protection clauses. Here, EU negotiators have packed a policy suitcase to its seams. The deal packs in potentially burdensome legislation across everything from emissions to public participation via global warming. In the most brazen approach to treaty deception I’ve seen since Soviet times, this is astonishingly justified “with the aim of ensuring the proper functioning of the single customs territory”. The Commission might at least have had the decency to admit that its motivation was to make sure the UK doesn’t become more competitive.

Locked up

Given the track record of the Home Office (and indeed of a past home secretary now in higher office), it should come as no real surprise that the UK will also remain locked into a range of texts agreed by that department, including the European Arrest Warrant, that have vexed Conservative backbenchers over many a year.

Defence integration

Considerable uncertainty litters the deal with respect to defence. The EU has now picked up the pace in the race for a Common European Defence, in which it sees the US as an emerging competitor. This policy is being pursued in several parallel strands. The UK has partially ducked out of some of them, but this draft leaves the UK at considerable risk to others, especially over some of the institutional arrangements that have yet to be finalised as one of the end “pillars”. An immediate risk is the push to integrate and slash national defence industries, since these would still come under the trade aspects of this deal. Moreover, policy here is centred on the work of the European Defence Agency that the UK will stay closely engaged with.

A miscellany of horrors

We could continue like the minstrel in the hunt for the Lionheart. There is Article 37 which authorises and encourages PR campaigns, a danger with an institution such as the Commission, which revels in its propaganda directorate. There is an absence of commitment to unglue the country from the 53 Euroquangos, with their 15,000 staff and €10billion budget. Perniciously, there is a void in settling the ongoing cases of the heroes in the fight against EU fraud.

The Telegraph was a trailblazer in covering the saga of Robert McCoy,