Laws signed away, hands tied on trade: welcome to Mrs May’s black hole Brexit
Of this 585-page draft treaty, 175 pages consist of the so-called Northern Irish “backstop” protocol and its 10 detailed annexes. This should be called “the whole UK permanent lock-in protocol with extra lock-in for Northern Ireland”.
It contains comfort wording that it is “intended to apply temporarily”.
But the wording of the articles which govern how the protocol is replaced or reviewed give the EU a complete veto on the UK leaving the protocol.
The Government has surrendered any attempt to secure an independent mechanism permitting the UK to leave, let alone the unconditional right to leave after a period of time which it originally asked for.
The Government claims this protocol does not matter because it might not come into effect if a long-term trade agreement is concluded before the transition period ends in December 2020.
But the protocol will have a profound effect even if it never comes into force. Its very existence will mean that the EU will have no reason to offer a trade agreement with better terms than the protocol.
It includes an obligation for the whole UK slavishly to apply EUdictated tariffs to imports from outside the EU, and to follow the EU’s external trade policy. This keeps the UK a captive market for EU exports, so the EU will be able to carry on selling their £95billion-a-year surplus of goods into the UK at above world prices.
It will also kill stone dead any ability of the UK to conclude our own trade agreements with non-EU countries.
The protocol also includes so-called “level playing field” measures on the environment, state aid, workplace rights and other areas which are designed to suppress the competitiveness of UK industry.
It is obvious to a five-year old child, but not apparently to our Prime Minister, that by conceding all these rights to the EU in the so-called backstop, we ensure we will get the same terms or worse in a future trade agreement. The EU believes it can use these concessions as benchmarks for the future relationship.
All pretence of escaping from the jurisdiction of the ECJ has been abandoned. The treaty will require us to give “direct effect” and supremacy over UK law (Art. 4) to its provisions.
One of the most vexed problems of EU membership has been the way in which it required us to override our constitutional principle of Parliamentary sovereignty, and have the courts overturn Acts as a result of conflict with vaguely defined and ever-expanding rules of EU law. Under this agreement, our Parliament will not regain its sovereignty.
The ECJ’s jurisdiction will continue to apply directly to our courts on everything up to the end of the transition period, and after that to most of the provisions of the “backstop” protocol for as long as that is in force. It will continue to apply to EU citizens’ rights until around 2030.
But even where that direct jurisdiction ceases, our Government has negotiated a quite remarkable clause. Disputes which are submitted to a supposedly independent arbitration panel will be sent on to the ECJ for it to make a binding ruling, whenever the interpretation of an EU rule is involved. This will make the arbitration panel just a postbox and rubber stamp, with the ECJ taking the effective decision.
There is no precedent in any of the external trade agreements of the EU for any non-EU country to accept direct ECJ jurisdiction – until it was imposed by the EU on the former Soviet republics of Moldova, Georgia and Ukraine. As a rule, independent sovereign states simply do not allow their treaty obligations to be interpreted by a foreign court. But our Prime Minister is apparently happy to degrade our country to the level of desperate Moldova.
The protocol applies a huge range of EU single market rules to Northern Ireland which are listed out over 68 pages in Annex 5. These rules do not apply to Great Britain.
The fundamental constitutional relationship between Great Britain and Northern Ireland remains today based on the Articles of Union of 1800.
Article VI of the Articles of Union states that “in all treaties with any foreign power, his Majesty’s subjects of Ireland shall have same the privileges, and be on the same footing as his Majesty’s subjects of Great Britain”. Under the draft withdrawal treaty, the people of Northern Ireland would be on a different footing – subject to foreign laws and to the rulings of a foreign court.
Article VII of the Articles of Union states that all prohibitions on the export of products of Great Britain to Northern Ireland or vice versa should cease from 1 January 1801. The new protocol allows the UK to permit goods to be imported from Northern Ireland to Great Britain, but requires exports the other way to be banned if they do not conform with the EU rules which will apply within Northern Ireland.
Unionists – including those in other parts of the UK- can validly complain that this protocol is altering the constitutional status of Northern Ireland within the UK without Northern Ireland’s consent, in breach of the Belfast Agreement. At present, the so-called “backstop” is just a joint statement by negotiators and is not legally binding.
By contrast, if this draft agreement is ratified, the UK will be obliged under international law to comply with the protocol. Those who suggest that it’s just a treaty and can be broken or terminated are being dangerously misleading. The UK as a trading nation is dependent upon other countries honouring treaty obligations and would suffer great damage if it were to breach a treaty obligation of this kind.
What is quite remarkable about this protocol is that it is not limited in time. All trade agreements routinely contain clauses allowing the parties to terminate on notice. It is quite remarkable for this agreement not to contain such a clause.
It is also quite astonishing that the Prime Minister apparently believes she has the moral or constitutional right to tie the hands of future governments and parliaments.
At present, we are subject to the EU treaties which give us the right to withdraw on two years’ notice – a right we are currently exercising.
This draft agreement would take away our right to withdraw from the EU customs union or from the wide ranging “level playing field” rules.
We would still be subject to a wide range of EU laws and rules, and to the rulings of its courts, while no longer having any vote on the rules or representation on the courts.
This deal would destroy all the benefits that the freedom of action given by Brexit should give us – forging our own independent trade policy with the growing parts of the world and making our economy more competitive. It would not give us back control of our own laws.
This is a black hole Brexit. It is not a bad deal but an atrocious deal. Martin Howe is a QC focused on EU law and chairman of Lawyers for Britain
‘It is quite astonishing that the Prime Minister believes she has the right to tie the hands of future leaders’