Written by Ben Habib MEP
This article was first published in BrexitCentral and we republish with their and the author’s kind permission.
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There is an understandable desire amongst many Brexiteers to accept Boris Johnson’s deal. Everyone is battle weary, but it is precisely at this point that Brexiteers must be resolute. This is no time for political expediency.The EU wants the UK to remain in its union. It has, for the last three years, waged a guerrilla war to subvert the result of the referendum. The only deal it was prepared to sign with Theresa May was one which delivered the UK into vassalage – a term coined by Johnson, even though he voted for it on its third presentation.
With the passing of the Benn Act, rightly named the Surrender Act by Johnson because it took No Deal off the table, there was no incentive for the EU to agree any genuine betterment to May’s deal – and, as you would expect, the changes that Johnson achieved were not a material betterment.Indeed, Northern Ireland, from at least a regulatory and trading perspective, would be left behind in the EU. The new Northern Ireland protocol would theoretically bring Northern Ireland into the UK’s new customs area but, in all practical aspects, leaves it within the EU’s Customs Union. The net effect would be that Northern Ireland would be subject to swathes of EU laws, including full regulatory alignment and with the European Court of Justice (ECJ) as its supreme court. There would be a border down the Irish Sea. This is envisaged to be a permanent arrangement, terminable only by a democratic vote, to be taken at four year intervals in Stormont or by some other method. Whilst this might be democratic, the divisions and acrimony these ongoing votes are likely to cause would be awful for the people of Northern Ireland. The UK would not be leaving the EU whole and intact.
There are no other substantive changes to May’s Withdrawal Agreement. Everything that was bad about it before remains bad: the up-front payment of £39 billion (which in all likelihood will now be more like £64 billion plus a contingent liability of up to €500 billion under the UK’s joint and several guarantee of the European Investment Bank), the UK being stuck in the Single Market and EU’s Customs Union, subject to all its existing and new laws through the transition period with no say and no veto and no ability to enter into new trade deals – for however long the transition might last – which in all likelihood would be until at least December 2022. And some of the provisions of the Withdrawal Agreement go on for years after the transition.
Some changes have been made to the Political Declaration which sets out the framework for the UK’s future relationship with the EU. Before going into these it is important to note that Article 184 of the Withdrawal Agreement commits both the UK and EU to use best endeavours to give effect to the terms of the Political Declaration. And because the Withdrawal Agreement is subject to EU law, it is the ECJ that would determine whether or not this best endeavours undertaking had been fulfilled.
The Political Declaration is not just a wish list – it has bite. Once we sign the Withdrawal Agreement we will no doubt sign up to a new Free Trade Agreement incorporating the terms of the Political Declaration. The negotiations leading to that Free Trade Agreement are bound to be protracted and that is why I am certain the transition period would not end before December 2022 (the extended date provided in the Withdrawal Agreement).
However, most provisions of the original Political Declaration have followed through into Johnson’s Political Declaration and these are deal breakers. I have set out some of these below but this is most certainly not an exhaustive list.
- The UK is bound to operate a regulatory “level playing field” with the EU (para 77 amongst others). This, together with Northern Ireland’s commitment to regulatory alignment, would neuter the UK’s ability to compete as an independent nation and would make establishing new trade deals problematic. The President of the USA was absolutely right when he cited this difficulty.
- The UK would be bound to align itself with EU state aid, competition, employment, environmental and tax laws, to name a few other obligations. These too serve to neuter the UK’s ability to freely govern itself.
- The UK would be obliged, to the extent possible, to cooperate with EU defence projects and military inter-operability (para 102). No sovereign state could agree to such commitments, which would be made under EU law and subject to ECJ supremacy. The fact that military cooperation features in what should purely be a trade deal informs you that the Political Declaration is about a great deal more than just trade.
- Of totemic importance, the UK would have to go on making available access to its territorial waters for EU member states’ fishing (para 73). British coastal communities have been terribly badly damaged by the over-fishing of our waters by these states and the practice has to be stopped.
- There are no stated termination provisions in the Political Declaration for these future arrangements which would be implemented as a treaty. In the absence of express termination provisions, terminating treaties must be undertaken in accordance with the Vienna Convention of 1969. The grounds for doing so pursuant to that convention are extremely narrow, potentially committing the UK to this new treaty in perpetuity.
The Prime Minister did well to get the EU to reopen the Withdrawal Agreement and Political Declaration to allow some changes. But the changes made potentially sacrifice Northern Ireland, bind the UK into the orbit of the EU subject to a great many of its regulations and laws, commits our military and does not take back control of our territorial waters. It is not Brexit.
We in the Brexit Party cannot stand by while there is a risk of this treaty being signed. We have no desire to split the Leave vote but the Tories, under this deal, do not represent a Leave option. We shall fight on for Brexit through this election and beyond if needs be.