[First published on this blog 6 Dec 2018; contributions plus links to later posts added.]
One of my contributors to this blog’s series on the EU and Brexit, David Chapman, has submitted the following which he’d received from a friend, after having seen material by Martin Howe QC.
(Martin Howe is a leading barrister in intellectual property and EU law and Chairman of Lawyers for Britain, as well as a contributor to Brexit Central. His articles enable us to appreciate why the hitherto secret Attorney General’s advice to the government, as explosive as it is, came as no surprise to anyone well-informed of the nuances of the Brexit negotiations; see, for example – The Withdrawal Agreement’s Northern Ireland Protocol is Neither a ‘Backstop’ or Temporary published 22nd November!)
I’m informed the following has come from social media and it isn’t easy to determine its source. Nevertheless, David writes, “After trawling through the near 600 pages of the WA this seemed to have a much more succinct analysis than I could give.”
Also, a local friend of financial rather than legal background, reports he’s pleased to find its points are similar to those he’d noted when checking to identify the Agreement’s key issues.
So with the foregoing in mind, let’s now take a look at :
40 REASONS (YES 40) WHY WE NEED TO BIN Mrs MAY’S PROPOSALS
From the offset, we should note that this is an EU text, not a UK or international text. This has one source. The Brexit agreement is written in Brussels.
- Prime Minister May says her deal means the UK leaves the EU next March. The Withdrawal Agreement makes a mockery of this. “All references to Member States and competent authorities of Member States…shall be read as including the United Kingdom.” (Art 6). Not quite what most people understand by Brexit. It goes on to spell out that the UK will be in the EU but without any MEPs, a commissioner or ECJ judges. We are effectively a Member State, but we are excused – or, more accurately, excluded – from attending summits. (Article 7)
- The European Court of Justice is decreed to be our highest court (Art. 86) both citizens and resident companies can use it.
- The UK will remain under the jurisdiction of the ECJ until eight years after the end of the transition period. (Article 158).
- The UK will still be bound by any future changes to EU law in which it will have no say, not to mention having to comply with current law. (Article 6(2))
- Any disputes under the Agreement will be decided by EU law only – one of the most dangerous provisions. (Article 168) Arbitration will be governed by the existing procedural rules of the EU law – this is not arbitration as we would commonly understand it (i.e. between two independent parties). (Article 174)
- “UNDERLINING that this Agreement is founded on an overall balance of benefits, rights and obligations for the Union and the United Kingdom” No, it should be based upon the binding legal obligations upon the EU contained within Article 50. It is wrong to suggest otherwise.
- The tampon tax clause: We obey EU laws on VAT, with no chance of losing the tampon tax even if we agree a better deal in December 2020 because we hereby agree to obey other EU VAT rules for **five years** after the transition period. Current EU rules prohibit 0-rated VAT on products (like tampons) that did not have such exemptions before the country joined the EU.
- Problems with the EU’s definitions: 3.1. “Union law” is too widely defined. “United Kingdom national” – we should not have agreed the Lisbon Treaty definition. That is giving away our right to define our citizens.
- Definitions needed to include the term “goods” and the term “services” we are promised the deal will mean ONLY EU law in relation to ‘goods’ will apply. This is a non-defined term so far. This agreement also fails to define it.
- The Mandelson Pension Clause: The UK must promise never to tax former EU officials based here – such as Peter Mandelson or Neil Kinnock – on their E.U. pensions, or tax any current ones on their salaries. The EU and its employees are immune to our tax laws. (Article 104)
- Furthermore, the UK agrees not to prosecute EU employees who are, or who might be deemed in future, criminals (Art.101)
- The pre-existing rights of EU citizens are to be extended to citizens of Iceland, Liechtenstein, Norway and Switzerland. They will be pleased. (Article 33)
- The EU’s stupidest law ever – the General Data Protection Regulation – is to be bound into UK law (Article 71 to 73). So much for escaping this madness.
- The UK is obliged to establish a ‘Joint Committee’ with EU representatives to guarantee ‘the implementation and application of this Agreement’. This does not sound like a withdrawal agreement – if it was, why would it need to be subject to continued monitoring? (Article 164). The Joint Committee will have subcommittees with jurisdiction over: (a) citizens’ rights; (b) “other separation provisions”; (c) Ireland/Northern Ireland; (d) Sovereign Base Areas in Cyprus; (e) Gibraltar; and (f) financial provisions. (Article 165)
- The agreement will last as long as the country’s youngest baby lives. “the persons covered by this Part shall enjoy the rights provided for in the relevant Titles of this Part for their lifetime”. (Article 39).
- The UK is shut out of all EU networks and databases for security – yet no such provision exists to shut the EU out of ours. (Article 8)
- The UK will tied to EU foreign policy, “bound by the obligations stemming from the international agreements concluded by the Union” but unable to influence such decisions. (Article 124)
- All EU citizens must be given permanent right of residence after five years – but what counts as residence? This will be decided by the EU, rather than UK rules. (Articles 15-16)
- Britain is granted the power to send a civil servant to Brussels to watch them pass stupid laws which will hurt our economy. (Article 34)
- The UK agrees to spend taxpayers’ money telling everyone how wonderful the agreement is. (Article 37)
- Art 40 defines Goods. It seems to includes Services and Agriculture. We may come to discover that actually ‘goods’ means everything.
- Articles 40-49 practically mandate the UK’s ongoing membership of the Customs Union in all but name.
- The UK will be charged to receive the data/information we need in order to comply with EU law. (Article 50)
- The EU will continue to set rules for UK intellectual property law (Article 54 to 61)
- The UK will effectively be bound by a non-disclosure agreement swearing us to secrecy regarding any EU developments we have paid to be part. This is not mutual. The EU is not bound by such measures. (Article 74)
- The UK is bound by EU rules on procurement rules – which effectively forbids us from seeking better deals elsewhere. (Articles 75 to 78)
- We give up all rights to any data the EU made with our money (Art. 103)
- The EU decide capital projects (too broadly defined) the UK is liable for (why on earth can’t they say now … oh yes, I remember, they’re bust) (Art. 144)
- The UK is bound by EU state aid laws until future agreement – even in the event of an agreement, this must wait four years to be valid. (Article 93)
- Similar advantages and immunities are extended to all former MEPs and to former EU official more generally. (Articles 106-116)
- The UK is forbidden from revealing anything the EU told us or tells us about the finer points of deal and its operation. (Article 105).
- Any powers the UK parliament might have had to mitigate EU law are officially removed. (Article 128)
- The UK shall be liable for any “outstanding commitments” after 2022 (Article 142(2) expressly mentions pensions, which gives you an idea as to who probably negotiated this). The amount owed will be calculated by the EU. (Articles 140-142)
- The UK will be liable for future EU lending. As anyone familiar with the EU’s financials knows, this is not good. (Article 143)
- The UK will remain liable for capital projects approved by the European Investment Bank. (Article 150).
- The UK will remain a ‘party’ (i.e. cough up money) for the European Development Fund. (Articles 152-154)
- And the EU continues to calculate how much money the UK should pay it. So thank goodness Brussels does not have any accountancy issues.
- The UK will remain bound (i.e coughing up money) to the European Union Emergency Trust Fund – which deals with irregular migration (i.e. refugees) and displaced persons heading to Europe. (Article 155)
- The agreement will be policed by ‘the Authority’ – a new UK-based body with ‘powers equivalent to those of the European Commission’. (Article 159)
- And, of course, the UK will agree to pay £40bn to receive all of these ‘privileges’. (Article 138)
Reader’s Comment – Sid Cordle remarks (6 Dec):
‘Sorry I don’t think this is right. There are a lot of things in the agreement that only refer to the transition period and taking quotes out of context causes massive problems. It is more reliable to look at the legal advice which I have analysed as follows:-
‘In areas covered by Annex 4, the UK agrees to dynamically align with EU State aid rules (Article 7(1)), to establish or maintain an independent authority with the necessary functions and powers to ensure effective enforcement of State aid obligations (Article 9), and to ensure domestic courts and tribunals have the necessary jurisdiction and powers to review and enforce compliance. P.46
The Commission may bring cases in the UK courts in respect of decisions of the independent authority and may also intervene in related cases. P.47
‘The EU and the UK commit to implement the principles of good governance in the area of taxation including recognised global and Organisation for Economic Co-operation and Development (OECD) standards, and to curb harmful tax measures (Article 1(1)). In particular, the UK commits to maintain in its domestic law those provisions transposing Union law as they stand at the end of the implementation period concerning administrative cooperation in the field of taxation. P.45
‘Article 3 requires the UK to align its tariffs with the EU’s Common Customs Tariff. If for any reason that is not possible then in any event the UK may not charge lower tariffs than the EU p.38
‘Article 4 requires the UK to harmonise its commercial policy with the EU’s common commercial policy to the extent necessary for the operation of the single customs territory p.39
‘Article 6 allows the EU to impose specific remedies, including tariffs, if the UK has not complied with its legal obligations under the Annex with respect to goods entering Great Britain from third countries p.39.
‘In other words we cannot have trade agreements with countries outside the EU that have better tarriff rates than the EU has and if we do they can impose additional tarrifs themselves on the goods and/or fines.
‘The main provisions of the Protocol come into force from the end of the implementation period (31 December 2020 – see Article 185 of the Agreement) in the event that a subsequent agreement is not in place by then, and the Protocol will continue to apply unless and until it is superseded, in whole in or part, by a subsequent agreement establishing alternative arrangements. P.35. In other words the EU can impose its will on Northern Ireland indefinitely.
‘Article 16 creates a Specialised Committee, with representatives of both the UK and the EU, whose functions include facilitating the implementation and application of the Protocol and examining proposals …or issues raised by the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland in their role overseeing the UK’s commitment to no diminution of rights under Article 4 of the Protocol. The Specialised Committee reports to the Joint Committee p.43 Aim to impose same sex marriage and abortion on demand p.43.
‘Worst of all The Agreement does not contain any provision on its termination. In the absence of such a provision, it is not possible under international law for a party to withdraw from the Agreement unilaterally.
‘This means that unlike article 50 which allows us to leave the EU we can never vote to leave this new customs union.
‘Overall this agreement is a disaster for the UK.’
PS 14 Jan: see also his Leaving the EU with No Deal is not a step into a legal vacuum, posted 13 Jan and Leaked Commons legal analysis vindicates Trump, contradicts May and adds to Brexiteers’ concerns posted 2 Dec 2018 at Brexit Central.
UPDATES 2 No:
(7.2.19) Spiritual Nature of Brexit vs EU Battle Now Exposed To The World closes with:
Telegraph’s international business editor Ambrose Evans-Pritchard’s Parliament Beware: the Backstop and EU Political Declaration are a double-trap makes essential reading for its historical background:
‘BE very wary of any EU codicil, protocol, or soft law memorandum offering assurances on the Irish backstop. Either it safeguards the UK’s sovereign prerogatives and free agency, or it locks the country into a perpetual legal arrangement as a regulatory captive without voting rights. It is one or the other. No fuzzy compromise on this legal point can exist.
‘The 1713 Treaty of Utrecht still holds force – to the eternal irritation of Madrid – because it is extremely difficult to abrogate. “You cannot get out treaties unless there is a ‘denunciation clause’ or by mutual agreement,” said Lorand Bartels, a law don at Cambridge.
‘NAFTA, NATO, or the WTO, all have escape clauses. That is why Donald Trump can threaten to tear up everything. The Withdrawal Agreement does not. It is sui generis. (ie one of a kind)
‘No large country in modern peacetime history has ever signed a treaty document of this kind yielding fundamental sovereign powers for ever. The insolvent king of Spain agreed to the Treaty of Utrecht and the loss of Gibraltar only because he had been defeated in the War of Spanish Succession.
‘We already have the hard lesson of the EU’s Charter of Fundamental Rights, the so-called Christmas tree of rights dismissed at first by one Europe minister (Keith Vaz) as “no more binding than the Beano or the Sun”.
‘The Lisbon Treaty later gave the Charter legal force under the European Court (ECJ). This created a clutch of aspirational economic and social rights that clash with Common Law practice…’
‘Brussels needs to do something because risks are rising. Europe is suddenly in a rougher predicament than anybody expected, hence Mr Tusk’s talk of dispatching Brexiteers to a “special place in Hell”.
‘The eurozone is near recession with no monetary or fiscal defences. It faces the escalating risk of an Italian debt crisis spreading to French and German banks. A no-deal Brexit has become very dangerous for the EU as well…
‘Lest we forget, the backstop is not the only landmine in the withdrawal package. The supposedly non-binding Political Declaration keeps the UK subject to the Acquis on the environment, labour law, taxation, competition, and state aid. Non-regression clauses make this law impossible to repeal even where its manifestly harmful.
‘Paragraph 132 states that the ECJ will have the final say on disputes. This extends the legal capture of the Withdrawal Agreement into the future relationship. Paragraph 135 establishes a punishment mechanism, with fines for breaches of the accord. It sets in train future fishing quotas…’
(6.3.19) ‘Insider’ info: Political Declaration Analysis by an Anonymous Civil Servant, a spreadsheet dated 8 February 2019 appended to The Political Declaration is not a Vague Wish-list, but an Attempt to Bind the UK to EU Policies and published by Brexit Central.
Bearing all this in mind, especially the point about the EU’s financial crisis and possible collapse, we’ll look at other pertinent prophecies and dealing with Tusk’s curse in the next post > > >