A good deal? Really?
I read with huge amazement the article written by Martin Howe QC in the DT. He gives the game away in the title: “No, Mr Farage, Boris Johnson’s deal is not “Brexit In Name Only” (paywalled link). He lines up arguments why Johnson’s deal is not BRINO and asks Nigel Farage to ‘accept reality’. The whole article documents that Mr Howe, for whom I have had quite a lot of respect, has now adapted his stance for one reason only: to get Johnson back into No 10, an aim to which all must bow. Here are the first paragraphs:
“Nigel Farage has launched his Brexit party to fight in all constituencies in Great Britain because, he claims, Boris Johnson’s deal with the EU is “Brexit In Name Only” (BRINO).
I have been one of the fiercest and most persistent critics of Theresa May’s deal, based on detailed study of its 585 pages of Articles, Protocols and Annexes. It was undoubtedly BRINO. It would have destroyed all the key benefits of Brexit by subjecting us for the long term — and without a veto or vote, or an exit clause — to EU laws over wide areas, and ended any realistic possibility of the UK forging a future independent trade policy.
If Boris Johnson’s deal were still BRINO, then I would unhesitatingly say so. But it is not.
First, the Northern Ireland backstop Protocol in the Withdrawal Agreement (WA) has been modified to remove Great Britain from being locked into a vassal-state customs union with the EU until the EU chooses to release us.
Secondly, a word-for-word comparison of the Political Declaration (PD) which sets out the future EU-UK relationship with its previous Theresa May version reveals that it has been amended in vital respects. The PD is important because it is linked to a legal obligation on both parties to use “best endeavours in good faith” to negotiate an agreement in line with its principles.
The PD as amended now clearly foreshadows a Free Trade Agreement (FTA) with the EU and not a customs union. The difference is vital because an FTA, unlike a customs union, allows us to set our own tariffs with third countries and to operate our own independent trade policy.
Obligations in the PD for the UK to align our future rules to EU rules have been deleted, and any alignment will be optional. The so-called “level playing field” commitments in the PD have been changed. The previous commitment to shadow the EU rules on competition and state aids in Theresa May’s WA has been replaced with a more open ended commitment not to distort competition similar to that in many FTAs.” (paywalled link)
So that’s all good then, is it? Compare and contrast these paragraphs with these which Martin Howe wrote in ‘Lawyers for Britain’:
“The second way to measure whether or not it is a good deal is to test it against the alternative, which is not to have a withdrawal agreement under Article 50 at all, and instead to negotiate our future relationship with the EU after exit. Contrary to some of the misleading terrors being put about regarding a “no deal” exit, there is no legal requirement to have a withdrawal agreement in order to leave the EU, nor does not having a pre-exit agreement prevent immediate negotiations on our future relationship, coupled with short term bridging arrangements to keep trade flowing while talks take place.
On this test, and despite the marked improvements over the disastrous TM deal, the revised deal is still overall a bad deal. It lands us unconditionally with huge financial obligations for nothing concrete in return, beyond the opportunity to negotiate a trade deal which we would be able to negotiate anyway. A UK-EU FTA is one-sidedly beneficial to the EU, given the UK’s huge importation of goods from the EU concentrated in high tariff sectors such as agriculture, cars and clothing. […]
Of more concern are the longer term negatives which remain in the WA such as saddling ourselves with long term ECJ jurisdiction. I predict that we will have bitter cause to regret such concessions in future years as unpredictable and activist judgments come out from the ECJ, which the UK and our Parliament will have no choice but to obey.” (link)
When you pay attention to that last paragraph, you wonder how and why Mr Howe QC can come up with this:
“There are still serious problems left in the deal, which are the residue of Theresa May’s appalling negotiations. But they do not make the deal BRINO and do not stop us achieving the fundamental objective of Brexit which is to restore our independence and sovereignty over our laws, borders, money and international trade.” (paywalled link)
Suddenly, being under the jurisdiction of the ECJ with all that entails is negligible? Just because the PM has managed to negotiate ‘a better deal’ than Ms May, and just because there’s now a GE to fight, we should overlook this vital point – a point which was one of the main reasons so many fo us voted to Leave – and swallow this toad of a ‘deal’ which for the same reasons we mustn’t call BRINO? All right Mr Howe QC, I’ll not call it BRINO, I’ll call it “LINO” instead: Leave In Name Only. As for his ‘advice’ to Nigel Farage:
“But we must deal with the world as it is rather than the world as we would like it to be. This is something that Nigel Farage should bear in mind now. Nigel, you have spent a long time fighting the EU as a guerilla in the mountains. It is now time for you and your Party to come down from the mountains and lend your strength to Boris’s Conservative army to bring us together to ultimate victory in this war for our freedom.” (paywalled link)
For goodness’ sake! TBP and Nigel Farage ought to give up their stance and jump on Johnson’s bandwagon because “the reality”? Even though Mr Howe had this to say in his article in ‘Lawyers for Britain:
“But even if the deal is bad, and is worse than a no deal alternative, is it tolerable, in order to prevent Brexit being de-railed altogether? This question is more political than legal. […] Those changes [in Johnson’s Deal] greatly transform the negotiating dynamics for the long term relationship with the EU. The UK will have a real ability to walk away if the terms are unacceptable, which would be a powerful lever in the hands of a Johnson majority government determined to use it.” (link)
Ah – but we’ve read in the meantime that this ‘walking away’, i.e. the possibility of ‘No Deal’, is going to be taken off the table in the Tory Manifesto … so then what?
We’re being told to trust Johnson because he got a somewhat better deal that Ms May. This is the reality Nigel and TBP must acknowledge and stand down to support Johnson?
Well, Mr Howe should also get out more and ponder why so many people, Tories, former Tories and Leavers generally say ‘Never trust a Tory’ …