There can be little doubt that the recent draft Withdrawal Agreement is highly destabilising to the functioning of orderly government in the UK.  It could precipitate turmoil in Parliament, a constitutional crisis and the fall of the government.  It could also exacerbate the divide between the political establishment and the electorate and deepen divisions within the country. The actions of the European Union (EU) in driving the process which resulted in this agreement (and its predecessor(s)) necessitates study since any improvement will depend upon their cooperation and clear understanding of how their actions (and responsibilities) fit within international law.  

The EU largely set the direction for negotiations and resulting actions by Mrs May which ultimately resulted in the proposed agreement.  Yet their statements were sometimes disingenuous with the potential to lead to actions damaging to our country.

The Scope of Article 50 Negotiations extended by EU

Ambassador (rtd) Leonidas Chrysanthopoulos (Former Secretary General of the Black Sea Economic Cooperation Organization) was on the inside of the Article 50 negotiations to include it in the Lisbon Treaty. He has revealed that Article 50 was only intended to cover financial arrangements for a Member State leaving the EU. The rest of the stuff set out by the EU as conditions is outside its scope and can only be there to pressurise us, exact a far heavier price and coerce others into not leaving the EU.  It is one thing to freely negotiate issues that are outside the scope of Article 50 and another to be pushed into it on a dishonest claim that it must be agreed, usually beforehand and the Sword of Damocles held over Mrs May head that ‘everything must be agreed before anything is agreed’. Former Greek Finance Minister Janis Varoufakis has flamboyantly called the EU’s Article 50 behaviour a Declaration of War.

The Truth about Freedom of Movement distorted by the EU

Then there was misinformation on the Single Market, free movement of people, costs of Single Market membership and the jurisdiction of the EU’s European Court of Justice (ECJ) etc. Different arrangements are open to members of EFTA, the European Free Trade Association who are also members of the Single Market, and wider European Economic Area (EEA), but not Member States of the EU and its Customs Union. They can and do negotiate free trade agreements with other countries. Free movement can be unilaterally suspended by any country in EFTA by invoking Article 112 (the Safeguard Provisions) in the EEA Agreement. The UK as a member of EFTA would be able to do the same, if we chose to leave the EU and join this trading association of independent European countries to remain in the EEA.  Also, it costs the EFTA countries little financially to be members of the EEA although Norway, in particular, does separately contribute towards EU facilities or services used and to development funds.  The ECJ only has jurisdiction over the EU Member States and hence over part of the EEA, but not over EFTA (i.e. non-EU) countries. EFTA/EEA could have been a practical and far better option.

Clauses similar to Article 112 appear in the draft Withdrawal Agreement (in the Northern Ireland Protocols) ensuring the EU has the unilateral right to restrict immigration from the UK into the EU.

Early Deceptive EU Claims Set the Direction for Mrs May’s Decisions

Mrs May in her Lancaster House speech 17th January 2017 stated:

European leaders have said many times that membership means accepting the ‘4  freedoms’ of goods, capital, services and people. And being out of the EU but a member of the single market would mean complying with the EU’s rules and regulations that implement those freedoms, without having a vote on what those rules and regulations are. It would mean accepting a role for the European Court of Justice that would see it still having direct legal authority in our country.

It would to all intents and purposes mean not leaving the EU at all.

And that is why both sides in the referendum campaign made it clear that a vote to leave the EU would be a vote to leave the single market.

So we do not seek membership of the single market. Instead we seek the greatest possible access to it through a new, comprehensive, bold and ambitious free trade agreement.

Mrs May was being misled with reasonably foreseeable consequences that she would seek to also leave the Single Market (or wider EEA) whilst ultimately being impelled to agree to a highly destabilising Withdrawal Agreement that amounts to Brexit in Name Only. It would also seem at that stage she was under the misapprehension that near ‘frictionless’ trade could continue via a free trade agreement.  The subsequent Chequers Plan was never going to be workable, which the EU knew.

Comparison with ‘Cyber Warfare’

The legal aspects of ‘Cyber Warfare’, including information or data manipulation, are evolving to accommodate the emerging scenarios of subversive ‘soft’ warfare in times of peace. This could provide a useful (or eye-opening) comparison for the activities of the EU in respect to the UK’s withdrawal from EU.  Here ‘soft’ warfare tactics by a hostile government are intended to get another government to acquiesce where it would otherwise choose differently.

Shen Weiguang, a Chinese information-warfare specialist, has written about tactics “disrupting the enemy’s cognitive system and its trust system” and “If a population loses faith in its government or military, the adversary has won,” (see ‘The Third World War – Total Information Warfare’).  This presents real threats to a country’s well-being and is obviously hostile activity. Yet it is currently a grey area in international law (defining an act of war) because of the obvious dangers of escalation, and it can be difficult to determine if a destructive attack has been carried out.

Impact on the EU and Need for a Change of Direction

The knock-on effects of the Withdrawal Agreement could ultimately be far reaching and highly destabilising within the remaining Member States.  The EU’s role and over-reaching actions akin to those of a hostile government against a friendly neighbour cannot ultimately be kept secret. More ‘dark’ secrets are likely to emerge.  The EU, therefore, need to act responsibly and reasonably in their own interests. There is some evidence that the European Commission did look at the far better EFTA/EEA option some months ago.  Failure to pursue this option then and promptly correct previous incomplete or misinformation does not reflect well on the EU.  The draft Withdrawal Agreement is clearly a lose-lose situation that needs to be replaced by a better agreement, fast.


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