The Draft Withdrawal Agreement
A legally binding draft treaty including:
- EU and UK citizens’ rights
- Transition period
- Financial settlement of c.£39bn
- A potentially permanent backstop Customs Union
- Other provisions on security cooperation etc
The Political Declaration
Not legally binding, aspirational and mutually contradictory:
- “build and improve on the single customs territory”
(para 23)
- Or is it “a free trade area” (para 22)
The Draft Withdrawal Agreement
Five failings
- It hands over £39bn for nothing in return
- The backstop could lead to a regulatory border in the Irish Sea
- The Customs Union backstop is permanent. There is no unilateral right for the UK to leave.
- UK remains a rule taker under the ECJ
UK Fish treated as outside of the Customs Union backstop leading to a probable Fish for trade deal
1. £39 billion for nothing
- The financial settlement will be in a legally binding international treaty, the future trade agreement (if not the backstop) is aspirational.
- The future financial settlement is made up of various elements; unfunded commitments (RAL); pension contributions and EU budget contributions during the transition is estimated to come to c.£39bn.
- It is perfectly possible that we could agree to pay the various elements of the £39bn yet remain in the backstop after the end of the transition with no free trade deal.
2. Border down the Irish Sea
- The Irish / Northern Ireland Protocol would, if it comes into force at the end of the Transition period, keep the UK in a Customs Union and Northern Ireland in further areas of regulatory alignment.
- If Northern Ireland is forced to accept regulatory alignment and Great Britain does not then UK goods flowing to Northern Ireland could go into the EU market. To prevent this would require an Irish Sea Border.
- For that reason Article 7 of the Protocol guarantees only NI>GB trade not GB>NI trade
3. The Backstop is permanent
- The Ireland / Northern Ireland Protocol (backstop) has no unilateral right of exit.
- The backstop includes a Customs Union, meaning the UK will have no independent trade policy. (Art 4 of Protocol)
- Article 20 of the Protocol gives the EU a veto on UK exit.
- To this the French and Spanish Governments have added new stipulations on fish and Gibraltar that make leaving the Protocol more difficult.
How we are trapped.
- Article 1 of the Protocol states ‘North South cooperation’, ‘Avoid a hard border and the ‘1998 Agreement in all its dimensions’ as the reason for the backstop.
- Article 20 states if the UK “considers that this Protocol is, in whole or in part, no longer necessary” the EU and UK may “decide jointly” within the Joint Committee.
- Therefore the EU must agree a new trade agreement and agree the criteria above have been fulfilled before the protocol can be exited. The EU can therefore veto UK exit.
4. UK remains subject to the ECJ
The ECJ will remain the final arbiter of the agreement.
- The Transition – Article 4 (1)
- On cases arising in the transition – Article 87
- On elements of the financial settlement – Article 160
- Over the interpretation of EU law used by the Arbitration panned – Article 174
- Over the backstop – Article 14 (1) of the Protocol
The EU will continue to keep EU laws during the transition and then over Northern Ireland in the backstop.
5. Fisheries at risk of being traded away
- The Withdrawal Agreement’s backstop (Art 6) treats fish differently than other goods and products. They will remain outside of the Customs Union and therefore UK fish will not gain tariff free access to the EU.
- (EU tariffs on fish are c. 9% Civitas)
- If the UK ends up in the backstop UK caught fish will therefore have less favourable access to the EU’s market putting pressure on the UK to trade access to the EU’s market for EU boats’ access to UK fish.
- The political declaration Para 75 specifically links fish to the trade deal.
- During the transition the UK will not be at the table.
What happens with the meaningful vote
- Under the European Union Withdrawal Act (s.13) there will be a ‘meaningful vote’ to approve the Withdrawal Agreement and Political declaration.
- The WA can only be ratified if they “have been approved by a resolution of the House of Commons..” A conditional approval is not approval.
- If the Commons does not approve the WA / PD the Act stipulates a HMG statement within 21 days on which HMG must bring forwards a neutral motion.
- The UK then leaves the EU on 29 March 2019.
Bad reasons to vote for the deal:
- ‘No deal’ means remain
There is no mechanism to ‘vote against no deal’
- ‘No deal means EEA’
There is no mechanism for this, and is legally complex
- ‘No deal means Corbyn’
Au contraire, where are Tory votes coming from now?
- ‘No deal means a General election’
Fixed Term Parliament Act
- ‘No deal means chaos’
Not significant if handled correctly
- ‘No deal will prevent us achieving rest of programme’
Without DUP there is no Conservative programme and potentially an election
- Art 50 cannot be the basis for permanent backstop – it will end
So just like the permanent deal on Geo Indicators under Art 50 and EU citizens rights?