In my last post in May of this year I explained why I left the Conservative Party and joined the Brexit Party, having taken the view that the Conservative Party was on course to fail to deliver Brexit.
I subsequently applied to the Brexit Party to become a parliamentary candidate, and having submitted a CV and attended an interview, I was appointed by the Brexit Party in August as their candidate for the Lichfield Constituency where I live.
On Friday 18th October I resigned from the Brexit Party and announced on Twitter my support for the Conservative Government, and in particular the new Withdrawal Agreement negotiated by Prime Minister Johnson. It is my considered view that the Johnson deal does indeed fully deliver an exit from the EU and is therefore a legitimate deal that all Brexiteers should get behind and support.
In the following paragraphs I will examine the Withdrawal Agreement and thereby justify my view that this agreement is indeed a genuine Brexit.
The Johnson deal with EU
As, with May’s deal, now defunct, Johnson’s deal has two parts:
- Withdrawal Agreement
- Political Declaration
The Withdrawal Agreement (WA), if passed, will become an international treaty between the United Kingdom and the EU. The WA would create a transition phase, from the date of coming into force of the WA, to 31st December 2020. During this time the UK and EU would negotiate a free trade agreement. The Political Declaration, in contrast, is a statement of intent, pertaining to the aforesaid negotiations. So whereas the provisions of the WA are binding on both parties, the Political Declaration is not binding. The WA is therefore much more important, and will be considered first.
The Withdrawal Agreement is perhaps most significant in what it does not say. There is no Irish backstop. There is no mention of the United Kingdom remaining in any sort of customs union with the EU or of remaining in the EU’s internal market (i.e. what is colloquially known as the “Single Market”). Indeed repeatedly the Withdrawal Agreement distinguishes between UK and EU customs territory and the UK and EU internal markets. There is a partial exception – Northern Ireland, where there will be continuing regulatory alignment to some aspects of the EU internal market. But Northern Ireland is formally recognized as being part of the UK customs territory, and in five years’ time, a simple majority vote in Stormont can ditch the alignment provisions of the Withdrawal Agreement. Moreover Northern Ireland will participate fully in all UK free trade agreements with third countries.
The WA breaks down into the following:
- Part One: Common Provisions (articles 1 to 8).
- Part Two: Citizens’ Rights (articles 9 to 39).
- Part Three: Separation Provisions (articles 40 to 125)
- Part Four: Transition (articles 126 to 132)
- Part Five: Financial Provisions (articles 133 to 157)
- Part Six: Institutional and Final Provisions (articles 158 to 185)
- Protocol on Ireland / Northern Ireland (articles 1 to 19, annexes 1 to 7)
- Protocol relating to the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus (articles 1 to 13)
- Protocol on Gibraltar (articles 1 to 6)
- Annex I: Social Security Coordination
- Annex II: Provisions of Union Law referred to in article 41(4)
- Annex III: Time Limits for the Situations or Customs Procedures referred to in article 49(1)
- Annex IV: List of Networks, Information Systems and Databases referred to articles 50, 53, 99 and 100
- Annex V: Euratom
- Annex VI: List of Administrative Co-operation Procedures referred to in article 98
- Annex VII: List of Acts/Provisions referred to in article 128(6)
- Annex VIII: Rules of Procedure of the Joint Committee and Specialized Committees
- Annex XI: Rules of Procedure
Part One: Common Provisions.
The only noteworthy provision is that the UK must have “due regard” for to relevant ECJ case law after the transition period (article 4 paragraph 5). This relates to the close-out of continuing EU programs that will remain under EU law until their completion. See article 138 under Part Five – Financial Provisions.
Part Two: Citizens Rights
The main provision is that EU citizens who are not resident in the UK shall not receive social security payments (article 23 paragraph 2).
Part Three: Separation Provisions
No notable provisions. This part of the Withdrawal Agreement is concerned with administrative provisions. An example is article 41, on the continuing circulation of goods placed on the market before the end of the transition period. Notably the article distinguishes clearly between the EU and UK markets.
Part Four: Transition
Article 126 states that the transition period ends on 31st December 2020 if it is not extended. Article 132 states that this transition period can only be extended once, for up to two years, with the decision to extend taken by 1st July 2020 at the latest. Prime Minister Johnson has publicly committed not to extending the transition period.
Article 127 states that, with exceptions, EU law will continue to apply in the UK during the transition period. Nevertheless the UK will be exempt from the following EU programs and policy areas during the transition:
- Schengen and the EU charter of Human Rights do not apply to the UK (article 127 paragraph 1)
- The UK will not participate in EU “enhanced co-operation” (article 127 paragraph 4)
- The UK is no longer bound by articles 42 and 46 of the Treaty of the EU, which set-up the EU’s Common Security and Defence Policy (article 127 paragraph 7).
- The UK shall not be a “framework nation” in EU battlegroups (article 129 paragraph 7).
Finally the UK can negotiate new international agreements outside of the EU provided they do not come into force before the end of the transition period (article 129 paragraph 4).
Part Five: Financial Provisions
The key provisions are:
- The UK is liable for its share of EU budgetary commitments as of the end of the transition, with some exceptions (article 140 paragraph 1).
- The UK is liable for its share of EU liabilities as of the end of the transition, with some exceptions (article 142 paragraph 1).
- The UK is liable for its share of the operations of the European Investment Bank at the end of the transition (article 150 paragraph 1).
- The UK remains in the 11th European Development Fund round, until its closure (article 152 paragraph 1).
- The UK will make no contributions for EU spending decided after the date of coming into force of the Withdrawal Agreement (article 135 paragraph 2).
- The EU is liable to the UK for the UK’s share of the assets of the European Coal and Steel Community at the end of the transition (article 145).
EU law will continue to apply to the financing of EU MFF programs for the period 2014 – 2020 (article 138 paragraph 1). This is what article 4 (Part One: Common Provisions) is referring to where it says that the UK must have due regard to relevant ECJ case law after the end of the transition.
The above provisions are used to calculate the UK’s financial settlement for leaving the EU, currently understood to be around £33 billion.
Part Six: Institutional and Final Provisions
Article 159 creates an authority to oversee the provisions of Part Two of the Withdrawal Agreement in respect of EU citizens in the UK. The authority is empowered to bring legal action in UK courts in respect of alleged breaches of Part Two.
Article 164 establishes a Joint Committee, co-shared by the UK and EU, to oversee the Withdrawal Agreement as a whole.
Articles 170 to 173 establish a dispute resolution mechanism based on an arbitration panel, with equal numbers of UK and EU panel members. In the event of the panel not reaching agreement, disputes are taken before the International Court of Arbitration in The Hague in the Netherlands for a final decision.
Protocol on Ireland / Northern Ireland
The introduction to the Protocol states “Nothing in this Protocol prevents the United Kingdom from ensuring unfettered market access for goods from Northern Ireland to the rest of United Kingdom internal market”.
Northern Ireland is part of the Customs Territory of the United Kingdom, and Northern Ireland will participate fully in any Free Trade Agreements negotiated by the United Kingdom with third countries (article 4).
Goods moved from Great Britain to Northern Ireland shall not be subject to customs checks unless the goods are ”at risk” of being re-exported to the EU either by itself or processed into another product (article 5). The Joint Committee shall define the applicable criteria before the end of the transition period.
Articles 5 to 10 of this Protocol are subject to democratic consent in Stormont based on a simple majority in the assembly. Thus the Assembly will be able to remove articles 5 to 10 of the Protocol by a simple majority. This mechanism is created by article 18 of the Protocol. The first opportunity for a vote will be 4 years after the end of the transition.
Protocol relating to the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus
The Sovereign Base Areas remain part of the EU customs territory (article 2 paragraph 1). Paragraph 6 of article 2 says that goods intended for military purposes can go through a port/airport under the control of the Sovereign Base Areas.
Protocol on Gibraltar
The Introduction to the Protocol recalls that the law of EU ceases to apply to the UK and Gibraltar from the date of entry into force of the Withdrawal Agreement.
In the above I have sought to pull out what I consider to be the notable provisions of the Withdrawal Agreement, which runs to 541 pages. It is not possible to comment on every article in the Withdrawal Agreement, unless one is writing a book instead of a blog. It is now apposite to look at the Political Declaration.
This document is not a treaty and is therefore non-binding. However it does set the scene for the negotiations between the UK and the EU that will begin once the UK leaves the EU in a few weeks’ time (if Johnson wins the election). The declaration seeks to set an agenda for these negotiations.
The declaration states that at the core of the new relationship between the UK and the EU there should be a “comprehensive and balanced free trade agreement”. This is the most important statement made in the declaration, and arguably sums-up the whole 18 page document.
The declaration also states that the future relationship between the UK and the EU must, for the EU:
- Ensure the autonomy of EU decision-making.
- Be consistent with the integrity of the EU internal market and Customs Union.
And for the UK the future agreement must:
- Ensure the sovereignty of the United Kingdom.
- Ensure the protection of the UK internal market.
- Respect the outcome of the 2016 referendum.
- Allow the UK to develop an independent trade policy.
- End free movement of people between the EU and UK.
The Political Declaration does not commit the United Kingdom to regulatory alignment with the EU. Section II of Part II of the declaration specifically states that both Parties will preserve regulatory autonomy. Section XIV of Part II talks about a “level playing field for open and fair competition”. However section XIV does not define what a level playing field is or what constitutes fair or unfair competition. Section XIV consistently uses the conditional form “should” instead of the directive forms “shall” or “will” in respect of the Parties i.e. the EU and UK. In other words Section XIV is an exhortation to both Parties on what they should do and should not do i.e. operate “fairly” and not distort state aid to create “unfair” competition.
The Political Declaration does not commit the UK to giving access to UK waters to EU fishermen. Section XII of Part II does enjoin the two Parties to agree a new fisheries agreement whose scope would include access to waters and quotas, with the aim of getting an agreement made by 1st July 2020. However the Parties are under no formal commitment to reach an agreement and the shape of any such agreement is undefined. Section XII recognizes the UK as an independent costal state and again restates the regulatory autonomy of the Parties. Section XII enjoins the Parties to co-operate bilaterally and internationally to preserve fish stocks.
The Political Declaration recognizes the sovereignty of the United Kingdom and the autonomy of the EU. The UK foreign policy, defence and security policy will be independent of the EU’s, as in all other policy areas. The Political Declaration envisages co-operation in foreign, defence and security where the interests of the Parties coincide. To quote directly from Section III of Part III of the declaration: “The Parties will shape and pursue their foreign policies according to their respective strategic and security interests, and their respective legal orders. When and where these interests are shared, the Parties should cooperate closely at the bilateral level and within international organizations.”
In summary, the Political Declaration is an inoffensive document that recognizes the sovereignty and independence of both Parties, the United Kingdom and the European Union. The declaration envisages a future relationship built around a new free trade agreement and co-operation on matters where the interests of both Parties align.
Under the Withdrawal Agreement and the associated Political Declaration the United Kingdom leaves the EU fully, coming out of all of the EU institutions. The Parties agree to try an negotiate a free trade agreement during the transition period that ends next December. The EU involvement in the UK’s affairs is progressively unwound, with EU regulations still applying to those EU programs in the UK that are still running at the end of the transition. Northern Ireland continues to respect some EU regulations pertaining to the EU internal market, though this is subject to a simple majority vote in Stormont in five years’ time. The United Kingdom makes a payment to the EU of around £33 billion in respect of what is deemed the UK’s share of EU spending commitments and liabilities at the end of the transition.
The Withdrawal Agreement gives Brexiteers what we all want: Exit. The only downsides are the £33 billion payment and the position in Northern Ireland. However, if we stay in the EU then we will give them net at least £33 billion in less than three years, and if the DUP get a majority in Stormont then the EU internal market provisions for Northern Ireland can be ditched. Is the Withdrawal Agreement perfect in all aspects? No it is not. But it does get us out, and this is why I support it and the Johnson government.
It is important to understand that there is no other practical plan to deliver Brexit; the Brexit Party has no plan, no policies and no prospects of getting a single MP. The Labour Party and the Liberal Democrats have both committed to ditching the 2016 referendum. The Labour Party would introduce a new referendum with Remain and remaining in the EU internal market, customs union and free movement as the options i.e. no Brexit option at all. The Liberal Democrats would simply Remain in the EU, full stop.
If you want Brexit then vote Conservative on 12th December 2019.