European Court of Justice
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Written by Ben Habib MEP
This article was first published in BrexitCentral. We republish it here with their and the author’s kind permission
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Following my article of 13th November on the pernicious role of the European Court of Justice (ECJ) in the Withdrawal Agreement (WA) and Martin Howe QC’s comments on it in his own article a couple of days later, Martin kindly agreed to meet me to talk through our differences. We had a very good meeting on 18th November. I delayed writing this post-meeting piece so that I also had the benefit of reading the Conservative Party’s manifesto pledges on Brexit.
Reporting first on my meeting with Martin, we agreed that:
- The parts of the WA which remain from Theresa May’s negotiation are awful, though in Martin’s opinion, as now amended by Boris Johnson, it is a tolerable agreement in order to gain our freedom, while rejecting it could lead to no Brexit.
- It would afford the ECJ supremacy over that agreement and the UK while the UK is in the Transition Period and, on EU citizens’ rights and on Northern Ireland single market goods rules and customs rules, for many years thereafter.
- The language around the level playing field in paragraph 77 of the Political Declaration (PD) is less prescriptive than the language in May’s draft of the agreement, which would have required the UK to follow EU rules. It would still enable the EU to argue that the UK should adopt the EU’s position on state aid laws, competition law, employment law, environmental law and tax laws, such as they are at the end of the Transition Period. However, Martin is of the view that the words in the PD referring to “common high standards” are capable of being interpreted as maintaining the overall standards in these fields in order to prevent distortion of trade and competition and not as requiring the UK to adopt or shadow the EU’s particular rules in these fields and that, interpreted in this way, they are in line with modern free trade agreement practice.
- The provisions of paragraphs 73 (fishing rights), 102 (military inter-operability) and 131 (ECJ supremacy over the interpretation of provisions relating to EU law or concepts – arguably the entire document) of the PD are less than ideal. Paragraph 131 on the ECJ is virtually unprecedented in an international trade agreement, having been resisted by all other states who have agreements with the EU, with the only exceptions being the former Soviet republics of Ukraine, Moldova and Georgia.
Most notably we disagreed on Article 184. Whilst the terms of this Article do require the UK and EU to use best endeavours in good faith to give effect to the terms of the Political Declaration in a new treaty to be in place by the time the Transition Period ends, Martin is of the view that robust negotiation should enable the UK to comply with these terms and achieve a reasonable free trade agreement at the end of the process. He was categoric on there being no legal basis at all (whether under the WA or elsewhere) for the ECJ to have the power to order the UK to extend the Transition Period. I would very much like to defer to Martin’s views of Article 184. He is an eminent QC and one whom I know has the UK’s best interests at heart. However, I find myself in continued disagreement.
The Conservative Party’s manifesto (which was not available at the time that Martin and I met) declares unequivocally that the future trade agreement would allow the UK to take back full control of its fishing waters and its laws amongst other things. So, leaving aside a debate over the level playing field (paragraph 77), the UK would have to deviate from the terms of at least paragraphs 73 and 131 of the PD. Along with the maintenance of a level playing field, based on their rules, these are of crucial importance to the EU.
A plain reading of Article 184 requires the parties to do their best to give effect to the terms of the PD before the Transition Period ends, not some other form of trade agreement. At a very basic level it would not be possible to argue that best endeavours would have been utilised if the UK had clearly tried to deviate from the terms of that document, as the Conservative manifesto pledges it would, and had not been prepared to use extra time to reach agreement when extra time had been made available. More importantly, the ECJ is not an independent court. It is undoubtedly politicised and would side with the EU on the matter.
It is the stated aim of Michel Barnier to drag out negotiations to the end of December 2022. Given the manner in which the Conservative Party apparently wishes to deviate from the terms of the PD, I am all but certain that he would prevail in his aim.
There is perhaps only one way the Conservative Party could comply with its pledge to be out of Transition by the end of 2020 with a deal along the lines set out in its manifesto. That is if it is prepared to take the UK out of Transition without a deal. It remains as true today as it did in 2016 that, to get a good deal, the UK must be prepared to leave with no deal.
However, this would require considerable political will and is almost certainly beyond the Conservative Party. The threat of a no-deal exit does not feature in the manifesto and there are at least 136 Remain-voting Conservative candidates standing again for election in December. It is therefore likely that these Remainers would undermine the ability of a majority Conservative government making a credible No Deal threat.
Indeed, if such political will existed, the Conservative Party would have already declared that it would not sign the WA, which is an awful agreement. It would instead insist on the withdrawal and future trading arrangements all being settled at the same time, not in a sequential manner which affords the EU the whip hand throughout the negotiations and process.
So, I am still of the view that if a majority Conservative government is elected and the WA ratified, the UK would be stuck in transition beyond December 2020 and it would be well-nigh impossible to agree a genuine free trade agreement along the lines set out in the Conservative Party manifesto.
The only way to be assured that there would be sufficient political will in Parliament to get a good deal would be by the Brexit Party returning a number of MPs in December and thereby holding the balance of power. If that should happen, I would happily wager that we would get the UK out of the EU, amongst other things, without putting a border down the Irish Sea, without having to pay over £64 billion (the estimated bill to December 2022), without subjugating the UK to the ECJ, without opening our fishing waters to the EU, without making our military available to EU command, without the ongoing joint and several guarantee issued by our government for €500 billion of EIB liabilities.
It is now down to the electorate.
Photo by Gwenaël Piaser