Article - hold our nerve, by Martin Howe QC

Theresa May’s deal remains “fake Brexit” – the alternatives are far less damaging

Written by
Martin Howe QC

Martin Howe is a leading barrister in the fields of intellectual property and EU law. He was called to the bar in 1978 and became a QC in 1996. He is Chairman of Lawyers for Britain.

 

The threat of an Article 50 extension is causing anxiety for some sincere and committed Brexiteers. Some say they should back Theresa May’s deal to “get Brexit over the line”.

But the deal won’t deliver Brexit. Worse than that, it’ll lock us in to not delivering Brexit for many years to come.

If the deal goes through, the next day we will not have left the EU in anything but name. For at least 21 months of “transition” – extendable up to four years – we will have to obey the EU’s laws and rules, and be subject to the Commission and the ECJ as now. The big difference is that we will no longer have a vote or voice in the EU institutions. So no vote or veto against EU law changes which damage the City, or against the Commission’s use of State Aid controls to suppress our competitiveness.

The Brexit process will not be “over”, or “done and dusted” by signing the deal. Those 21 months – or longer – will be filled with the turmoil of ongoing negotiations about our future relationship. We will be negotiating against a real “cliff edge” at the end of the transition – unlike the largely mythical and Project Fear 3.0 “cliff edge” we face now. If we do not submit to the detailed terms offered by the EU for our long-term relationship, we will automatically fall over the cliff edge into the backstop Protocol.

The threat of this happening will put huge negotiating power – blackmail power – into the EU’s hands, since the backstop locks us out of having an independent trade policy and divides the United Kingdom.

Some people say the negotiations are like a game of football where we have done badly in the first half. They hope maybe we can do better in the second half under a new captain. But these negotiations are more like a game of chess: our current leadership has sacrificed all the major pieces and left the remaining pieces in positions where check-mate is inevitable in a few moves. The most competent and Brexit-committed future Prime Minister could not magically get us out of that situation.

 

Being locked in the backstop

The Attorney General rightly reiterated his advice that if negotiations with the EU drag on or break down, then under international law the UK risks being locked indefinitely in the backstop. The key danger was spelt out in the last paragraph of his advice: if through no demonstrable failure to exercise good faith “but simply through intractable differences” the negotiations deadlock, then there would be “no internationally lawful means of exiting the Protocol’s arrangements, save by agreement”.

The fundamental problem is that there is no need for the EU to engage in bad faith conduct in order for us to be locked in indefinitely: they just need to negotiate hard for terms we can’t stomach.

But some arguments have been flying around that we might be able to get out by showing the EU is acting in “bad faith”, or because there had been a “fundamental change of circumstances” under Article 62 of the Vienna Convention on the Law of Treaties.

The “Star Chamber” group took the best public international law advice, and concluded that these arguments have little substance. Leading public international law experts such as Professor Philippe Sands QC and Sir David Edward (the former British ECJ judge) have publicly expressed similar views.

Professor Guglielmo Verdirame of King’s College London takes a different view from other experts. He says that it is “not fanciful” that the EU might be found in bad faith if it “persistently and unreasonably” refused to conclude an agreement.

Let’s assume that he is right and that other distinguished public international lawyers are wrong. After an unknown period of time stuck in the backstop, and depending on the behaviour of the EU, the UK might have a case which is “not fanciful”. That case would then go to an international arbitration panel which would take months or years to rule. Before coming to a decision that panel is required to refer any issues of EU law to the ECJ in Luxembourg for a binding ruling. If Prof Verdirame is right, it is “not fanciful” that the UK might win: but if the arbitration panel rules against the UK, then we are completely and utterly snookered.

If the best advice I can give a client about a case is that it is “not fanciful” that he might win it, the client would need to be mad to go ahead with it – particularly if the downside of losing is huge, and other lawyers thought that the chances of winning are near zero.

The upshot is that if we agree the deal, we will be locked into the backstop and there will be no way out of it which is under our own national control. These theoretical legal arguments do not change the dynamics of the negotiations in practice. We would still have to negotiate with the EU on the basis that we are certain to have to go into the backstop if no deal is agreed before then, and that we would then have no reliable way out of it except with the EU’s agreement. The prospect of hanging the whole fate of the country on the roulette wheel of presenting some novel legal arguments to an international arbitration doesn’t help in the real world.

 

But what happens if Mrs May’s deal is defeated for a third time?

What has spooked some Brexiteers is President Tusk’s talk about a possible 21-month extension to our EU membership under Article 50. Such talk is cheap – it does not commit the EU’s leaders to grant an extension. Tusk is clearly trying to influence the political process within the UK. People shouldn’t be naive and fall for it.

There are big obstacles against a long Article 50 extension actually happening. All 27 EU member states need to agree it unanimously. If the EU offer it at all, it needs to get through our Parliament with whatever conditions the EU attach to it – and these conditions could require Parliament to pass primary legislation.

The leaked ‘Room Document’ prepared by officials for the forthcoming European Council meeting makes it clear that if an extension goes past 2nd July at the latest, then the UK must as a matter of EU primary treaty law (which cannot be changed in the time available) hold European Parliament elections in May. This is a big downside for the EU, as is the prospect of the UK as a full voting member state causing trouble for the next two years.

But what if the worst happens and an extension is agreed? That would be an appalling betrayal of the referendum result by arrogant parliamentarians who would rightly be held to account for their actions.

But the actual legal consequences would be much less damaging than the May deal. We would be hugely better off than under the deal. We would have effectively the same transition period as under the deal, with the big difference that we would still have a vote and voice in the EU institutions. But the biggest difference is that we would not be locked into the backstop at the end of 2020 or into the other very damaging parts of the deal which have been overlooked in the furore over the backstop.

It is understandably difficult for people to follow the different parts of this complex deal, what is in the Withdrawal Agreement itself, what is in the backstop Protocol, and what is in the Political Declaration attached to the deal. At Lawyers for Britain we have published a master chart which shows where the main problems are and has links to more detailed explanations.

There are some very bad parts of the deal apart from the backstop Protocol. We would have to carry on paying vast sums of money after 2020 which we do not owe under international law. The EU law which the deal applies to us even after the transition period is over would carry on having direct effect and supremacy in our courts over UK law for the indefinite future – something that leaving the EU was meant to end.

And the overlooked Political Declaration contains very damaging provisions. People think that because it is not legally binding, it can just be ignored and we can negotiate with the EU afresh. That is not true. Article 182 of the Withdrawal Agreement commits the UK as well as the EU to use best endeavours to negotiate an agreement in line with the Political Declaration. This means that if we ask for something in the future agreements that contradicts the Political Declaration, the EU can legitimately say that we are not complying with our obligation to negotiate what is in the Political Declaration and therefore the EU has no obligation in turn to give us an agreement which departs from it. Result: we are locked into the backstop with no way out, and no way to complain.

Although much of the contents of the Political Declaration are mere outlines, it does contain prescriptive provisions which are contrary to UK interests. The most damaging is probably Paragraph 23 on tariffs, which is simply not compatible with us negotiating the Canada-style Free Trade Agreement with the EU favoured by most Brexiteers. Instead, it requires “ambitious customs arrangements… that build and improve on the single customs territory” in the backstop. Dominic Raab resigned over the inclusion of this wording in the Political Declaration.

Paragraph 124 of the Political Declaration pre-commits the UK to carry forward the unequal disputes procedures of the Withdrawal Agreement, under which the ECJ will maintain jurisdiction via a backdoor (but effective) mechanism under which the ECJ’s rulings on EU law issues will bind the neutral arbitration panel. This extraordinary mechanism is totally contrary to international treaty practice under which sovereign states do not submit themselves to the courts of the other treaty party, and has so far only been imposed by the EU on the desperate former Soviet republics of Ukraine, Moldova and Georgia.

Paragraph 75 states that: “Within the context of the overall economic partnership the Parties should establish a new fisheries agreement on, inter alia, access to waters and quota shares”. This does not contain detail but is a concession in principle by the UK on there being fishery quota sharing as part of the economic partnership with the EU. The EU will undoubtedly leverage this concession to demand continued access to UK fishing waters for EU boats and the UK will be in a very weak negotiating position to resist the EU’s demands.

Mrs May trumpets the end of free movement of persons as her great achievement. But Paragraphs 50 to 59 of the Political Declaration commit the parties to establish “mobility arrangements” to replace free movement, and “to consider addressing social security coordination in the light of future movement of persons”. The precise content of these arrangements is not spelt out, but in view of its weak negotiating position up against the backstop, the UK may well be hard pressed to resist pressure to expand these arrangements.

If we are subjected to an Article 50 extension instead of the deal, none of these damaging provisions or negotiating constraints would apply to us, leaving a future Prime Minister in a position to negotiate with a free hand.

 

Conclusion – the choice

The threats of an Article 50 extension have created a dilemma which worries many committed Brexit supporters. I understand those worries. An emotional response is to just grab onto the deal, even if it is horrible, in order to “get Brexit delivered”.

But at this critical time it is vital that our MPs should vote not just on emotion but after looking very carefully at the legal as well as the political consequences of the courses of action.

The deal does not deliver Brexit except in name. Not only does in not deliver Brexit, it also makes it impossible for a future Prime Minister to deliver a real Brexit as well, for many years to come or indefinitely. The momentary relief from some Leave supporters at nominally leaving the EU is sure to turn to anger, disillusionment and blame when it becomes clearer and clearer that Brexit has not been delivered, and that the Conservative Party in particular – including the Brexiteers – has failed to deliver real Brexit and has delivered a locked-in fake Brexit instead.

But if the deal is rejected, the most likely outcome is that we get out on 29th March with the referendum objectives achieved of taking back control of our laws, our borders, our trade and our money. Please see the excellent article by Christopher Howarth which explains why it is so difficult for Remainers to force through an Article 50 extension in the remaining few days if the deal is rejected again.

It was bound to get rough as we approach the point of actually leaving the EU. Now is not the time to lose our nerve and back a gravely damaging deal which would betray Brexit supporters and be very bad for the country. Contrary to the Prime Minister’s contention that it is patriotic to support her deal, the patriotic thing to do is to throw it out again.