Theresa May has tried hard to get her misnamed Withdrawal Agreement through the House of Commons. On 15th January it was defeated there by a majority of 230 votes, on 12th March by 149 votes and on 29th March by 58 votes. So she’s getting closer. She plans to try her luck again on 3rd June, before she stands down on the 7th. Rory Stewart, Mrs May’s Minister of International Development, has said that if MPs want Brexit then they should vote for her Agreement and stop quibbling over its details.
But how many MPs know what the details in the Withdrawal Agreement are? There are nearly 600 pages in the Agreement with its Articles often having clauses & subclauses which refer to EU legislation elsewhere – like Article 50 in the lengthy 2007 Treaty of Lisbon, which is the EU constitution voted down in both the French and Dutch Referendums in 2005. The total volume of words in EU laws & regulations since the European Project began must amount to many millions.
Also there are two different versions of the Withdrawal Agreement online, something I missed until Korea McLean pointed that out in her comments below my 2nd May Independence Daily article (here). The versions were published on 14th & 25th November 2018, clearly the latter must overrule the former. The 14th November WA has 585 pages and the 25th November WA has 599 pages, and Article 132 has been changed, the only significant change I know of.
The 14th November version of Article 132 contains the phrase “31st December 20XX” which enabled the Joint Committee, created in both versions from Article 164 onwards, to extend the Transition Period, during which the UK withdraws from the EU, until 31st December 2099. Whereas the 25th November version has replaced the 14th November version of Article 132 with the 14th November’s innocuous Article 126. So now the 25th November Article 132 only allows the JC to extend the transition period by “one or two years.”
So what happened to the notorious 14th November Article 132 in the 25th November Withdrawal Agreement? Has it been deleted or moved to another nook in the 25th November WA’s 599 pages? Even if the former version of Article 132 has been deleted, it did disclose an ambition to trap the UK in a transition period until 31st December 2099. And if the WA gets through the Commons on 3rd June then the Joint Committee that it creates can extend the transition period to the 31st December 2099 anyway. Why? Because the JC can do anything it wants. Clause 2 of Article 166 says that the decisions of the Joint Committee will be “binding” on the EU & UK. In other words this JC will overrule the British government.
This Joint Committee will interpret the Withdrawal Agreement’s directions as to how the Withdrawal process is to be conducted. In doing so it will control the relationship between the EU & UK in the Transition Period. The elected government of the UK will be excluded from any control over the Withdrawal process and over the relationship between the EU & UK. So only the UK side of the unelected Joint Committee can battle for Britain. Article 168 (Exclusivity) says that all disputes on this JC between the EU & UK sides must go exclusively to the Arbitration Panel set up in Articles 171 to 181.
However Clause 1 of Article 174 says that “Where a dispute submitted to arbitration in accordance with this Title raises a question of interpretation of a concept of Union law, a question of interpretation of a provision of Union law referred to in this Agreement or a question of whether the United Kingdom has complied with its obligation under Article 89(2), the arbitration panel shall not decide on any such question”. Instead, as it’s a question of EU law, the Court of Justice of the European Union will make a decision binding on the Arbitration Panel, as the CJEU is the supreme authority over interpretation of EU law.
Furthermore the Withdrawal Agreement is a legal document and the EU sees it as part of EU law not International law. That is shown by the refusal of Article 168 to allow the UK side of the Joint Committee any appeal to international courts outside the EU. Some would see the Withdrawal Agreement as part of International law, and so as a Treaty between two sovereign states, the EU & UK. But by accepting the exclusive settlement by the CJEU of any disputes arising from the WA, the Agreement accepts that the UK is no longer a sovereign state, but merely a region of the EU, subject to the Court of Justice of the EU.
Those who wrote the Withdrawal Agreement (bureaucrats not politicians) see the WA as an EU legal document, and see all disputes in the Joint Committee as over EU law, which must go to the CJEU for settlement. So why waste pages 179 to 194 in Title lll (Dispute Management) with Articles 167-173 & 175-181 on the pointless Arbitration Panel? Clause 1 of Article 174 which hands disputes on the JC over to the CJEU is the only part of those sixteen pages that matters, and it takes up only a third of page 285 (in the 25th November WA).
There are many evils in Mrs May’s misnamed Withdrawal Agreement. But creating the Joint Committee as a dictatorial junta over the UK is by far the worst. So why did Boris Johnson, Jacob Rees-Mogg and Dominic Raab vote for the WA on 29th March? The Department for Exiting the European Union (DEXEU) printed 1300 copies of the WA and sent 1100 to MPs & Peers in Parliament. BJ, JR-M & DR clearly haven’t bothered to read the copies of the Withdrawal Agreement that DEXEU sent to them.