The Government must force the EU back to the negotiating table while preparing for a WTO Brexit

Last night’s votes in the House of Commons sent a clear message to the Government that it must get on with delivering Brexit. Preparing for Brexit by getting the country ready for a departure on WTO terms also presents an opportunity to force the EU back to the negotiating table to get a better deal […]

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Last night’s votes in the House of Commons sent a clear message to the Government that it must get on with delivering Brexit. Preparing for Brexit by getting the country ready for a departure on WTO terms also presents an opportunity to force the EU back to the negotiating table to get a better deal for Britain.

This means that as the dust settles the Government needs to swiftly dismiss those who want to use the defeat as an excuse to stop Brexit and keep the UK under the thumb of Brussels. For too long they have been permitted to carry influence on the Brexit process and decision-making.

Many of those now trying to unpick Brexit voted for the referendum, stood on a manifesto to deliver Brexit, voted in favour of Article 50 and agreed to our departure from the EU on 29th March 2019. The Government must therefore move forward with new purpose and get Britain ready for our freedom from the EU on 29th March.

There are many advantages to leaving the EU on 29th March under WTO terms and with careful preparation there is nothing to fear.

First, doing so gives business and the country certainty to plan for the future as it gets rid of the years of uncertainty caused by the Withdrawal Agreement.

Second, as there will be no financial settlement, the Government will have £39 billion available to invest in the economy to address concerns about volatility and to support economic growth.

Third, we can immediately work on agreeing new trade deals with the rest of the world.

Fourth, we will have taken back control and delivered the outcome of the referendum and kept our promises to the people.

As well as leaving on these terms, we can also extend the hand of friendship to the EU to continue to cooperate in areas of mutual interest and to pursue an advanced free trade deal.

But while it is imperative the Government should fully prepare for departure under WTO terms, it is still preferable that we leave with a deal, so ministers should press for the Withdrawal Agreement to be amended. The Government should put new legal text on the table which changes the worst aspects of the Agreement to make it more acceptable.

This must include replacing the backstop with a better alternative that does not threaten the integrity of the United Kingdom and removing those elements that bind the UK into a single customs territory. With £39 billion at stake, there’s every prospect that the EU will return to the table for what should be seen as modest but important revisions.

Looking to negotiate a better deal while being fully prepared to leave on 29th March is the sensible and right course of action to take with either outcome being orderly and better than the deal that has been rejected.

The Government now has a chance to ensure we leave the EU and deliver on the promises made to the British people.

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Juncker and Tusk’s letter to Theresa May changes nothing: we must vote down the draft Withdrawal Agreement

The letter sent from Jean-Claude Juncker and Donald Tusk to Theresa May in the last 24 hours shows more clearly than anything else possibly could why the draft Withdrawal Agreement is fundamentally flawed: not only the lack of substance in the letter, which adds nothing new to the sum of human knowledge, but also the […]

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The letter sent from Jean-Claude Juncker and Donald Tusk to Theresa May in the last 24 hours shows more clearly than anything else possibly could why the draft Withdrawal Agreement is fundamentally flawed: not only the lack of substance in the letter, which adds nothing new to the sum of human knowledge, but also the lack of any form of collegiate kindness or helpfulness to the Prime Minister.

When the Prime Minister addressed the 1922 Committee on 12th December, she assured colleagues that she would secure legally-binding wording to address concerns over the Northern Ireland backstop. Now we learn there will be no end date to the backstop or unilateral exit mechanism for the UK. So, yet again, the EU have let the Prime Minister down.

The lesson is clear: we need to vote down the Withdrawal Agreement by as large a majority as possible. Only then can we move on and either negotiate a new agreement (as David Davis argued at the weekend) or Leave without a deal on World Trade Organisation terms with a view to later negotiating a new relationship.

The Government and the Conservative Party must remain committed to delivering the result of the referendum, as repeated in our 2017 manifesto, which pledged to leave the Customs Union and the Single Market, accompanied by the declaration that No Deal was better than a Bad Deal. Otherwise, the credibility of our democracy will be thrown into chaos.

The draft Withdrawal Agreement does not respect the result of the referendum. The Government should be seeking to unlock the negotiations by returning to the Canada-style option offered by President Tusk, using the tried and trusted techniques and procedures so that rules of origin and customs checks are conducted away from the Northern Ireland border, to make unnecessary the hard border that everyone agrees must be avoided.

The backstop means we will be trapped under the thumb of the EU with no date to escape – and unable to strike trade deals. It means we would be trapped indefinitely as a satellite of the EU, obeying its laws without a say, unless the EU and its Member States gave permission for us to leave. The UK will be paying £39 billion – equivalent to £1,443 per household, or £60 million per constituency – and getting nothing in return. We will not take back control of our money, laws and trade. Remaining in the Customs Union is a breach of the 2017 Conservative Manifesto on which I and all my colleagues stood.

The backstop drives a regulatory barrier down the Irish Sea, severely damaging the Union and moving Great Britain and Northern Ireland further apart. This deal keeps the supremacy of the European Court over our own law and sells out the UK fishing industry, excluding them from any trade deal, and envisaging a deal where the Prime Minister trades away our fish in return for market access.

We remain effectively in the EU for an extendable ‘transition’ period, paying and accepting new laws over which we will have had no say. Unrestricted immigration of EU nationals will still be continuing for years after we leave. This commitment comes with no guarantee of a future trade agreement. Worryingly, this deal will deny the UK an independent trade policy while potentially keeping us out of existing EU trade policy. We would be cut off from the world with our trade and economy regulated from Brussels without any say.

So, let us be honest: the Withdrawal Agreement is a terrible deal – worse than Chequers, less popular than the Poll Tax and only one in five voters think it honours the referendum result. The only way to get a better deal for the UK is for Parliament to reject it and force the Government to renegotiate with the EU.

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Don’t be fooled: this Brexit deal creates a triple lock to shackle the UK to Brussels forever

Just as we thought the orchestrated fog of confusion around the Withdrawal Agreement was about to lift, there were reports that Theresa May might even postpone the meaningful vote again while she seeks “reassurance” from the EU about the Northern Ireland backstop. Whatever fudge is cooked up in Brussels to try to bolster support for […]

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Just as we thought the orchestrated fog of confusion around the Withdrawal Agreement was about to lift, there were reports that Theresa May might even postpone the meaningful vote again while she seeks “reassurance” from the EU about the Northern Ireland backstop.

Whatever fudge is cooked up in Brussels to try to bolster support for her “deal”, it is very unlikely that the EU will delete the backstop. Why? Because it is a crucial element of the Withdrawal Agreement’s “triple lock” structure designed to stop Brexit. “Withdrawal Agreement” is an Orwellian misnomer, of course. This agreement keeps Britain in chains.

Voters may believe we need it in order to leave the EU. We do not. They could be fooled by the Prime Minister’s repeated claims that there might be “no Brexit” unless it is passed – when of course Brexit will happen by default without it under the terms of the European Union (Withdrawal) Act. Voters might also be forgiven for believing that the Withdrawal Agreement settles our future trade relationship with the EU. Not in the slightest. Future trade talks remain just that – in the future – while May’s “deal” keeps the UK legally shackled to a moribund EU economy which it must attempt to revive with vast sums of British taxpayers’ money for an indeterminate number of years.

Project Fear has been in overdrive since the Withdrawal Agreement was published, with spin, misrepresentation and blatant untruths deployed to sell it to a rightly suspicious nation. But once people open the Withdrawal Agreement tin, they seem more inclined to spit out its contents than swallow them whole. It’s rather like buying a can labelled “tomato soup” and finding it contains a concoction of deadly nightshade.

But credit where it’s due: EU officials (ably abetted by their British allies) have produced a devilishly clever draft treaty which, if passed, would end Brexit and get Britain ready to board the express train to a United States of Europe. The political takeover of the UK represented by the Withdrawal Agreement is an audacious attempt to reverse a damning popular vote of discontent with the European Project and provide fresh impetus for the federal superstate that is the EU’s raison d’être.

The EU’s triple lock guarantee is so constructed that never again will Brussels be troubled by an explosion of democracy in the United Kingdom. Parliament has one last chance to escape total eclipse – and it is now, by rejecting the Withdrawal Agreement in its entirety.

The first lock: the transition period
The first lock is the transition period, which lasts until at least 2021. We must hand over an estimated £39 billion for nothing, be bound by EU law and take orders from an unelected Joint Committee operating under the jurisdiction of the European Court of Justice. Will the EU27 agree an equitable free trade agreement before the end of 2020? Unlikely, since all the goodies they want in the “future partnership” are set out in the Northern Ireland backstop, which kicks in automatically on 1st January 2021 unless superseded by a “partnership” agreement. Full ratification by all Member States is required before any such agreement can come into force. Achieving this in time to avoid entering the backstop would be nothing short of miraculous, even if the EU agrees to extend the transition period for one or two years. So it is more pay with no say and a likely doubling of the Brexit bill to £80 billion, to be paid with no reference to British MPs.

The second lock: the backstop
The backstop is intended to be inescapable. It prepares Britain for the final destination set out in the political declaration, as a permanent satellite state of the EU. By which time, of course, it is doubtless hoped that we will be so fed up with our vassalage that we decide to rejoin the EU as a full member – with greatly increased budget contributions and a whole swathe of new EU law to obey. The United States of Europe will have taken shape during our “wilderness years” using our money (“Britgeld” seems to be an appropriate term), but without our political input. No taxation without representation? What a joke.

Not only does the backstop carve out Northern Ireland as an EU province and set a border in the Irish Sea, it creates a partial “customs union” that requires us to implement EU trade tariffs and policy with no decision-making powers. Under highly restrictive “non-regression clauses”, the UK also agrees to implement all EU environmental, competition, state aid and tax harmonisation laws, with the unelected Joint Committee and the ECJ once again able to punish us for any perceived backsliding. British farmers will be locked into a subsidy regime well below support received by EU27 farmers, who nevertheless retain tariff-free access to the UK. British agriculture would be decimated. It means we could not support British businesses, give ourselves a competitive edge in new technologies where we excel, strike independent trade deals or diverge in key policy areas such as goods regulations and tax. Free EU access to UK fisheries is set down as a marker for negotiation in the future “deal”.

The third lock: the “future partnership”
Anyone expecting the EU27 to give up the immense advantages they gain under the backstop is delusional. Retaining tariff-free access to the UK market and effective control of UK trade and competition policy must be nirvana for them. To ensure they reap the full benefit, there is the third and final lock in the Withdrawal Agreement. Unless we agree to a “future partnership” as set out in the political declaration, the backstop will endure in perpetuity.

The Political Declaration replicates all the onerous “non-regression” clauses of the backstop and requires even more surrender of sovereignty via participation in and funding of the EU’s aerospace and defence programmes, free access to UK waters for EU fishermen, a full customs union and common trade policy, free movement by the backdoor under “mobility” clauses, EU control of UK agriculture via the state aid rules and in general full adherence to the acquis communautaire in all policy areas.

Thank you for your triple lock guarantee, M. Barnier. The Withdrawal Agreement cage conforms to the highest EU safety standards.

But could I have my Sovereign Tomato Soup now, please?

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It’s time for Brexiteers to hold their nerve

In the current murky confusion that envelops us, there are signs of hope for Brexit-supporters to cling to. It’s easy to imagine, after the victory of the Morgan/Cooper amendment to the Finance Bill on Tuesday evening, that leaving with No Deal is now ruled out. In fact there was little substance in the amendment and […]

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In the current murky confusion that envelops us, there are signs of hope for Brexit-supporters to cling to.

It’s easy to imagine, after the victory of the Morgan/Cooper amendment to the Finance Bill on Tuesday evening, that leaving with No Deal is now ruled out. In fact there was little substance in the amendment and the majority of seven in its favour was below what its promoters had hoped for. It will have little effect on the most immediate challenge facing the Government: getting its Withdrawal Agreement through the House of Commons.

Barring surprises, within a matter of days, that Withdrawal Agreement will have suffered a major blow, rejected by the Commons with a large majority. But it will not be dead. It will remain on the table until late in March, an option that the UK can take up until pretty well the last minute.

And that possibility is not at all negligible. It is possible that the Conservative MPs who voted against it could crack, especially those who could be won over by a modest and largely cosmetic amendment that the Government might yet secure during February or even March. It is possible that sufficient Labour MPs, appalled as a No Deal exit nears, might reach out a saving hand to Theresa May in what they would see as the national interest. It is possible that the EU could give in, agreeing the wholesale removal of the Irish backstop from the text in exchange for the money on which they have so desperately counted. None of these seems likely, but they – or a combination of them – cannot be ruled out. Since she really does seem to believe in her deal, Mrs May will wish to keep it alive as an option right until 11pm on 29th March.

But she needs to do more than that. Within a short space of time following the defeat of the Withdrawal Agreement, she will face the House of Commons, as required by statute, and set out the Government’s plan. For Brexiteers, the content of her statement will be the most crucial development between now and our exit from the EU.

That is because, for all the talk of Parliament’s being in control and for all the effort put into calculating how some 640 or so volatile MPs might vote on various combinations of options, in this country the Government remains the linchpin of effective decision-making. Only the Government has executive power; only the Government has authority over the civil service; only the Government can make things happen. So what Mrs May says she thinks should happen must be a leading contender for what will in fact come to pass.

So what will she say? She could say she has no plan – that the only course she can recommend to Parliament is to keep voting on the Withdrawal Agreement until they decide that it is better than any alternative. She meanwhile will continue to seek improvements to the text from the stony Commission and Chancellor Merkel. But this would leave the Government very exposed to the charge of recklessness in the face of a more rapid and comprehensive Brexit than the nation has been prepared for.

Much more likely is that, while still talking up the Withdrawal Agreement, she will pivot to one of the only two remaining options. She herself has correctly identified these as No Deal and No Brexit. Of these, the work being put by the civil service and, behind the scenes, by Ministers into No Deal preparation indicates that her “fallback” will be the former. She will set out a twin-track plan of preparing more vigorously and publicly for No Deal while keeping talks on the Withdrawal Agreement going so that a further vote that might adopt it can still be held.

If she does not say that, Brexit-supporters should be very worried.

But this is surely a dead end. We have been assured that there is a solid majority against No Deal in the Commons. 200 MPs have written to the Prime Minister to tell her this. Tuesday evening’s vote showed 20 Conservative MPs willing to defy the whip to make just this point. But being against No Deal isn’t quite enough. Given that our exit on 29th March is enshrined in domestic statute and international law, there needs to be a majority, a bare majority, for an alternative. And the fact is that there is not.

What’s more, many MPs and the country at large are beginning to realise that a No Deal exit is probably now the most likely course – and that it can be managed. As the Government starts to lay the necessary Statutory Instruments and bring forward other No Deal legislation – always carefully saying that it is only a contingency measure, since the hope of having the Withdrawal Agreement improved has not been abandoned – MPs and businesses will start to adjust to the reality. Not all of them of course – not even a majority – but enough to take some of the pressure off the Government.

That process will be assisted by the tactics of the hard Remainers. Now that we have it from the European Court of Justice that it lies in the UK’s power to revoke Article 50, there is nothing to stop these people proposing a motion in the Commons that the Government should be “instructed” to do that. They don’t do so for the simple reason that such a motion would fail: that’s why they need to work through the device of a second referendum in order to give them at least a chance of attaining their goal.

I have set out previously the insuperable objections to conducting a second referendum at this stage on any basis that would give it even a shard of legitimacy. But the biggest obstacle to one is that it doesn’t command sufficient support in Parliament. And even the majority of those who would vote for it know that it is a flag to wave rather than an outcome to be wished for: once the rhetorical bloodbath started, no-one would thank Parliament for having unleashed this democratic catastrophe upon the country. MPs by and large know this.

So what is the determined Remainer to do? Blocked in all paths forward, they feel the ground tilting under them as they slide down the well greased funnel that leads to a No Deal Brexit, casting about manically for a handhold. Inevitably the expedients they reach for will rise up and ebb as each is first promoted by the Remainer press and then discarded as its unworkability becomes apparent.

This is what happened to “Norway” in November. What started as “Norway for Now” got huge publicity, then became “Norway then Canada” and finally “Norway forever” as its various weaknesses were exposed. “Norway” looked dead by Christmas. But the New Year brought its ghost back to life, with a new plan from Robert Halfon that looked remarkably like “Norway”. By the next day it had slipped back into obscurity.

 With Christmas out of the way and the clock ticking, the second referendum shows signs of similarly fading, especially as the Labour Party leadership appears unmoved by the many calls from its members to change tack and support one.

Now we have frantic Tory Remainers banding together with Opposition parties to make tax collection awkward if a No Deal Brexit goes ahead – or to cut Ministers’ salaries. They are bitterly determined and they reckon they have many cards still up their sleeve.

There should be no doubt that these manoeuvres, if done with full Opposition support, will threaten to bring the Government down. A Government that can’t effectively carry its flagship policy through has little purpose. The likelihood of a General Election would rise significantly.

That in itself will help to solidify the moderate Tory vote and make a No Deal exit more acceptable, however reluctantly. There can be little criticism of the Labour Party for seeking a General Election: it’s in the Opposition’s job description. But are there really enough Tory MPs sufficiently enraged by Brexit to want to assist them to their goal? I can imagine a few. But I can also imagine a few occupants of the Opposition benches who might cancel them out.

There will be lots of other ways in which Remainers may seek to frustrate a No Deal Brexit in the Commons (and no doubt the Speaker will continue to assist them). They could seek to amend the swathe of Statutory Instruments now sitting in Whitehall waiting to be laid. They could try to block or amend the primary legislation the Government might need to be ready for leaving on 29th March without a deal.

But Labour has to be careful here. It’s one thing to vote so as to stop a No Deal Brexit. It’s quite another to mess up preparations for a No Deal Brexit so as to make it chaotic when it happens. It will not be a good look to be seen preventing the Government from building lorry parks or ensuring the supply of medicines. And those still hoping for a last-minute significant concession from the EU on the Withdrawal Agreement will see it as undermining the chance of that.

So it’s apparent what Brexit-supporters must be working for:

  • first, to secure the largest possible vote against the Withdrawal Agreement, to make its return to the Commons less and less likely
  • next, to contrive that the Prime Minister and the Cabinet fully embrace No Deal as the fallback plan and prepare for it vigorously – this may see a few long-serving Cabinet Ministers resign, which will be sad, but will only balance the several losses at the other end of the plank
  • third, to help accustom MPs and the country at large to the prospect of a No Deal Brexit – and it’s good to see the cross-party GO WTO campaign just launched to this end
  • and finally, to hope that the Government’s Whips really can count and that the wilder Tory Remainers currently canvassing dangerous expedients are confined to an irreducible handful

And at some point in this timeline, or shortly after it, a General Election cannot be ruled out. Secure your postal vote now!

Most important of all is to keep one’s nerve. A No deal Brexit was never the ideal outcome. A good, sensible and fair Withdrawal Agreement was always desirable. But it was refused by the European Commission and the result accepted by the Government is intolerable. So No Deal it is and fortunately that’s the course we are set on by statute.

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A plea to the PM from a Leave-supporting businessperson: Stop the scare stories and embrace a Sovereign Brexit

What follows is an open letter to the Prime Minister written by a businessperson who backed Leave at the referendum but who for professional reasons is currently unable to enter the political fray. Dear Prime Minister, I have watched with a sense of appalled inevitability your recent unsuccessful visit to Brussels, characterised as it was […]

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What follows is an open letter to the Prime Minister written by a businessperson who backed Leave at the referendum but who for professional reasons is currently unable to enter the political fray.

Dear Prime Minister,

I have watched with a sense of appalled inevitability your recent unsuccessful visit to Brussels, characterised as it was by a lack of ideas, an absence of combativeness and a reckless and relentless desire to cling on to every rotten element of the vassal state deal that you and your small Remainer clique of advisers in Downing Street have concocted with the EU. Harsh words? Perhaps, but they are words that are endorsed – sometimes in more polite phrases, sometimes in less polite phrases – by the vast majority in our country and even of our Parliament.

Why are you so recklessly clinging to every suspect element of this ‘Brexit in name only’ deal? Many believe the problem all began with your still-secret promises made to Nissan, the car manufacturer in Sunderland, shortly after you took power in 2016. You have never published those promises. Many of us guess that it was partly as a result of those promises that in your talks with the EU you then gave away – whether in ignorance or because you never truly meant to leave the Customs Union – every possible negotiating element that would allow the United Kingdom to pursue its own independent economic and trade policies. Was that so? Can you not come clean with the electorate and tell us what those Nissan promises were, how much they are now constraining you and how much your desire to cling to your secret agreement with one company, Nissan, has led you to all this foolishness? Because if that is the case, then the honourable thing for you to do would be to resign and let someone else – someone not burdened by that promise – create a way forward for our country that is not shackled by that apparently all-constraining Nissan cursed promise.

If there was no such promise, then I am puzzled by your insistence that a WTO-terms deal – what is most truthfully termed a ‘Sovereign Brexit’, the thing that 17.4 million people actually voted for – must be ruled out by you. Your Remainer friends who dominate the media have managed to spin non-facts into a general belief that a Sovereign Deal would be catastrophic. Your grid in Downing Street has, month after month, delivered to a credulous press and public a remorseless stream of doom-laden statements by those rent-seeking members of the business community on whom you have chosen to rely to spin your message. Yet neither you, nor the spinners, nor your business allies, actually ever credibly articulated what the specific negatives of such a deal would be (the contemptible catastrophe forecasts by your discredited Treasury modellers, and by your apparently politically motivated Governor of the Bank of England, are no longer believed by anyone – as I am sure you must know).

What could go wrong, and what would go right, in a Sovereign Brexit? The claims of your Remain-loving enablers as to what might go wrong are economic. They relate first to exports from the EU into this country and second to exports from the United Kingdom into the EU. Once even the briefest analysis is conducted, both sets of claims are quickly seen as hogwash.

Exports from the EU into the UK – no disruption threat there

There have been the most extraordinary and juvenile claims of potential (albeit very short-term) shortages in this country after 29th March 2019. Even you, lamentably, mentioned your diabetes and your desire for being sure of your supply of insulin. Who persuaded you to say that? Did you give the slightest thought to how ridiculous that scare story was? Insulin is sold under a wonderful system we call private enterprise, from one company to another. In the UK’s case, it’s mostly a Danish company selling insulin to companies in Britain. The insulin is put on a plane or a boat and comes over to our country. What, do you assert, would prevent this from happening after a Sovereign Brexit? Come on, what? Are you saying that the EU would somehow seek to prevent insulin being placed on a ship or a boat and exported to us? You aren’t saying that, are you? Such an action would be illegal. Or, OK: let’s even say that, however unlikely, the EU indeed decided on 29th March to start acting entirely illegally (again: for a short period of time only, which is all they could possibly ever do). Then the UK would get its insulin from the US, or the Danish company would sell the insulin to Norway, or some other non-EU country, which would then export it on to the UK. Businesses successfully deal with complications of this sort all the time. All that the EU’s (highly, highly unlikely) illegality would result in is the Danish company losing money, one way or another. But you and I know that the EU wouldn’t shoot itself in the foot like that.

So, were you claiming instead that Britain would somehow put up barriers against Danish insulin coming into the country after 29th March? We wouldn’t, would we? Come on, you know that, don’t you? So why did you raise a false scare story, that would have had tens or hundreds of thousands of diabetics worried that their supply of insulin was suddenly going to dry up, when you know it’s hogwash? Isn’t that the sort of rabble-rousing nonsense that we try not to do in the Conservative Party?

Insulin is just an example of any other product that comes into the UK from the EU. We would not prevent any product from arriving; the EU would have no legal locus (or indeed any physical ability) to prevent any product from being sent; can you please just stop being silly and admit that there would be no supply shortages in the UK? (And please, can we in particular try to keep our Conservative ministers from making fools of themselves, in their eagerness to support you, by escalating the level of ludicrousness of such scare stories from a possibility of momentary disruption of a day or two, through to six-week problems, through to six-month problems? The more outlandish their claims get, the less anyone believes them – though some Remainers tactically pretend to. We will actually need to have a set of ministers who are seen as competent by the UK electorate after all this settles down, if the Conservatives wish to remain in power.)

The UK’s exports to the EU – not credible to assert any long-term or even short-term disruption

Let’s turn to the second set of scare stories running against a Sovereign Brexit. We keep being warned about “lorry parks in Kent”. The idea is that Calais will somehow impose restrictions on us, so that we won’t be able to get our goods speedily into France and through to the rest of the EU. Of course, we send just 6% of the UK’s exports through Calais, and those exports can swiftly be diverted to go through other ports, were Calais were to seek to prevent the easy flow of UK goods into Europe. But we needn’t particularly worry about anything like that happening, because every local official from Calais, and the Pas de Calais region, has said that this will not happen. It would take an edict from President Macron – an edict that would be entirely illegal, whether in EU law or in the WTO agreement – to impose such a blockade (Indeed: if you really were to believe – and I for one don’t think you do – that Macron would truly seek to impose an illegal blockade, then it would be utterly abject of you, and unworthy of the Prime Minister of our sovereign nation, to bow to a perception of a threat of this sort).

In any event, let us assume that the worst happens and that Macron does indeed seek some way of blocking British exports into the EU. The French did that once before, when they for a while diverted Japanese VCRs to Poitiers, so that EU manufacturers could win in the VCR market. They were very swiftly brought to court by the WTO and made to stop. Japanese VCRs continued to dominate the world (and the EU) market. France have never tried that trick again. And what would be the result for the French, were they to try it on us? Well, within a couple of weeks, as their just-in-time-systems were affected, thousands of French and German auto workers – possibly tens of thousands, in the unlikely event that the French were successful for more than a few days – would be thrown out of work, as French and German car manufacturing plants had to shut down. Do you really think, Prime Minister, that this would be allowed to happen? Or is your assertion, that somehow the EU would inflict such a monstrous act of self-harm upon itself, just a stance that you are pretending to believe in, so as to insist on this foolish deal that you and the EU are trying to impose upon the British people?

In either case – exports or imports – the very wildest claims are of a possible disruption that would last for, even your wildest claims allege, only a few months. Why, then, should this be the dispositive consideration, when we are talking about Britain’s future for many decades to come? Why would you shackle the country permanently to a lordly EU, in order to avoid a very temporary (and, if you read my above arguments, not going to happen anyway) disruption? Why would you abandon even the threat of a WTO terms deal – and in so abandoning it, allow us to become the hapless prey of what everyone now knows are entirely ruthless EU negotiators?

The Irish Border and the Backstop – a Hoax

On the Backstop, and its claimed urgency and importance, the trick is to look at your language, where one finds your people always using the passive mood – a classic giveaway. You say you are worried about a hard border “being imposed” (passive mood). You do not offer a noun in front of the verb, to show who it is, exactly, that is predicted to be going to do this “imposing”. That’s because, in fact, nobody wants to, nor do they intend to, impose such a border. You have said that Britain will never impose a hard border. The EU has said that it will never impose a hard border. The Irish have said that they will never impose a hard border. The Revenue of the UK has said that imposing a hard border will in all circumstances be entirely unnecessary. Talk of a hard border is nonsense, and you know it. Plan after plan has been published showing how the Irish border question can easily be dealt with, away from the border. To assert that this issue might bring back the IRA, that there will be one disaster or another if we don’t have the Backstop, is irresponsible. Which brings us back to what many aver, that the Backstop is just a cover for implementing some promise you made to the auto industry in 2016, that we would be in some form of Customs Union with the EU – precisely the thing that 17.4 million people voted against.

(And by the way, could you please get your people to stop briefing the credulous media as to how the EU don’t like the Backstop? To believe that – if indeed you do – would be a colossal, monumental piece of self-delusion. The EU love this Backstop, created as it is without an exit clause, with the EU entirely in control as to when – if ever – the backstop is removed. And Leo Varadkar is of course – and rightly – terrified of a Sovereign Brexit because the Irish economy would, unlike the UK’s economy, drastically contract as soon as we stopped buying Irish agricultural products and started buying cheaper, alternative produce from New Zealand and Argentina, were the EU to fail immediately to agree a free trade deal with the UK.)

As constituted in your proposed deal, the Backstop turns Britain into a permanent, shackled vassal state of the EU, subject to all its laws, on which we’d have no say; gradually reduced to a pathetic vestigial outcropping of the EU, with German goods and French produce increasingly defined under EU laws as the only sources that we will be allowed to accept. If the EU wishes – and why should they not? – that Backstop would be for good. Our manufacturing, already half destroyed by our membership of the EU, would continue to shrink, and our farmers and fishers would continue to be at a disadvantage – forever.

The positives of a Sovereign Brexit

So much for the specious arguments that a Sovereign Brexit would be problematic, and that your surrender deal is therefore necessary. But what about the positives for a Sovereign Brexit? I sometimes wonder what Downing Street’s grasp of numbers is like. Do you have any true feel for what £39 billion, so insouciantly promised to the EU in return for illusory favours, could do for this country were we to spend it on ourselves, as we could if we opted for a Sovereign Brexit, rather than giving it away?

For a start, were there any sector (including your much-loved auto sector), but let us say, for example, the agricultural or the fisheries sector, that indeed for some (unlikely) reason suffered during any years of further negotiations, then just a small fraction of this £39bn would be enough to keep those industries whole, for the (in the scheme of things) short period it took to get a free trade deal with the EU. We do not owe this £39bn to the EU. It’s possible that the EU could make an argument for us paying over a small fraction of that amount as one or another obligation, that we might eventually agree, but we certainly wouldn’t pay it any time soon, were the EU to keep on playing the sort of hardball with us that they have adopted so far as their negotiating posture; it would take them years, possibly decades, to establish legally that we owed the money.

Regardless, there is no way that the UK would ever have to pay anything but a small fraction of the full sum. Don’t you think, Prime Minister, that the EU are rather keen to have that money? Do you not see that by ruling out a Sovereign Brexit, and by promising to pay the money before you have agreed a trade deal with the EU, you have taken two enormous bargaining chips off the table? Wouldn’t keeping that money in a Sovereign Brexit scenario make a huge positive impact for the UK?

So, for a start, we’ll have that £39 billion (a sum that in your deal, as we pay it to the EU, will massively and worryingly increase this country’s debt – for no clear return). But a Sovereign Brexit will give us so much more than just that money; we’ll retain our ability to do free trade deals with that part of the global economy from which 90% of future global growth will be coming (you may know this as the ‘not the EU’ world. I hope you sometimes think about it?); we’ll keep our ability to unshackle our entrepreneurs from EU regulation (so that, as just one random example, we can regain the 12% of the global clinical trials industry that we used to have, until EU regulations in 2002 suddenly collapsed our share to around 2%); and above all, the clothing, food and other essentials that the people of the United Kingdom buy in the future being far cheaper as we move outside the protectionist barriers of the EU’s Customs Union and Internal Market.

You know very well, Prime Minister, how all of your allegedly neutral and objective advisers have ostentatiously ignored all of these benefits. You know they have failed to seriously review the many analyses that show that far from a Sovereign Brexit being negative for the British economy, it is likely instead to have a significant positive effect. You know that the insistence of your Treasury officials on publishing neither their models, nor the assumptions they put into those models, make an absolute nonsense of the credibility of those models and a mockery of the alleged impartiality of those officials. Please, Prime Minister: you are juggling with the future of this country. At the very least, you should be honest with the people of this country – both in acknowledging the above points, and in forcing your officials to own up to the way they have jammed their thumb onto one side of the scales of public opinion.

Prime Minister, you are offering us a deal where you propose to break up the Union and hand Northern Ireland over to the EU. You intend to hand over money ahead of any trade deal, thus assuring that whatever is agreed in that deal will be even more horrendous than what you have come up with so far – Gibraltar threatened, our fisheries destroyed, our people deprived of their chance for the benefits of free trade and subjected to semi-permanent, quite likely perpetual, enshacklement to the EU. You have gone back on every single promise you made when the Conservative Party made you their leader, when you gave your Lancaster House speech, when you said “Brexit means Brexit”.

The sorry band around you are desperate for your deal to go through because if we went for a Sovereign Brexit instead, they, and their enablers in the media and big businesses, would be exposed as the complete charlatans that they are, when a WTO terms Leave is implemented (the Leave that those 17.4 million voters expected to happen). This is why your myrmidons are fighting so hard, because all of them – your advisers, the civil servants involved, the Treasury forecasters, your small clique of Remain ministers, The Economist, the FT, the BBC, and on and on – would have no choice but permanently to disappear from public life once we implemented a Sovereign Brexit and all their egregious negative spinning and outrageous scare stories were proved as false as their original 2016 Project Fear was.

You, however, Prime Minister, have a glorious chance to escape their fate, by doing one thing: you can still, now, and energised by Juncker’s utterly disrespectful behaviour to you in this past week, turn around to the European Union and say, finally:

“Fine. I understand you don’t want to do a deal. We’re now going to go full bore for a Sovereign-terms Brexit. Let’s sort out some administrative things like us allowing you to fly your planes over the UK, but other than that, let’s see each other in Geneva at the WTO. Do come back to us if you want to discuss some kind of Canada-plus deal, but otherwise, let’s all spend our time constructively in the next three months preparing for Britain’s Sovereign Exit from the EU.”

For the sake of our country Prime Minister, please take this chance. Now.

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Here’s how to solve the Irish border issue and make the Withdrawal Agreement acceptable

It is now clear that there is very little support in Parliament for the Prime Minister’s Withdrawal Agreement. The most important objection is the so-called Irish backstop in Protocol 9 which essentially keeps Northern Ireland in the EU indefinitely and binds the UK into a customs union from which there is no release unless the […]

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It is now clear that there is very little support in Parliament for the Prime Minister’s Withdrawal Agreement. The most important objection is the so-called Irish backstop in Protocol 9 which essentially keeps Northern Ireland in the EU indefinitely and binds the UK into a customs union from which there is no release unless the EU says so – which it would have little incentive to do. Even under our present terms, we can leave if we choose.

Other options such as another referendum, or some version of “Norway” are for various reasons unworkable. It is equally clear that neither side wants a “no deal” scenario. However, if a solution could be found that preserves the transition period and most of the Withdrawal Agreement, it must be considered, for the sake of continuity, good relations with the EU and the island of Ireland.

This week, I – along with Robert MacLean and Hans Maessen – have laid before policy-makers an alternative that we believe would remove those aspects of the Withdrawal Agreement which are unacceptable, and yet retain the genuine progress achieved to date. This is not to say that there is nothing else in the Withdrawal Agreement which is objectionable, including its one-sided structure. However, in the spirit of compromise, we do not pursue those matters, but offer a solution to the heart of the problem. This, we believe, solves the Irish border issue on a permanent basis, enables a backstop to exist on a basis acceptable to all reasonable stakeholders and builds on the EU’s offer to the UK of an advanced Free Trade Agreement with regulatory cooperation, customs facilitations and Irish border facilitations. This is part of a bigger project to propose the real legal text of a Free Trade Agreement between the UK and EU.

First, the proposed backstop needs to be replaced, with an alternative based on a basic Free Trade Agreement in goods and agri-food, with a chapter on Customs and Trade Facilitation, and Irish Border Facilitations, which would in due course become part of the ultimate comprehensive Free Trade Agreement which the UK and EU will seek to negotiate, with some additional provisions for regulatory cooperation, and stand-alone dispute settlement mechanisms. Our proposed backstop could last for a fixed period, say ten years – on any view long enough for a comprehensive Free Trade Agreement to be negotiated between the UK and EU. In other words, our backstop can function as a front-stop, should the need arise, unlike the EU’s, which gives them no incentive to release the UK from de facto EU control. Since the backstop is the ultimate permanent arrangement, there is no loss of negotiating leverage for the UK to remain in it, nor is it a threat.

Contrary to what the Government has claimed, this does not involve the use of “magical” new technology but existing customs facilitation procedures already in use across the world. It avoids a hard border – which in any event all sides have pledged to do – respects the Good Friday Agreement and removes the challenge to the territorial integrity of the UK posed by the creation of “UKNI” in the existing Withdrawal Agreement, aptly described as “a new country”. From the EU point of view, it enables a smooth UK withdrawal and avoids an attempt to exercise jurisdiction in the territory of a non-Member State.

We also believe that, if the current flawed and legalistic process is allowed to hit the buffers, there is an opening for a more political solution driven by European heads of state, since neither side wants a no-deal outcome. Naturally, the UK Government must prepare for no deal, since there is always the possibility of no deal, through no fault of the UK. The UK Parliament cannot control the actions of the EU and therefore for the UK Parliament to decree that there shall be no deal is pointless; it is also extremely damaging, as it tells the EU that the UK will accept any deal. We must become serious negotiators and understand that being prepared for no deal is a way of ensuring a better deal for both the UK and the EU.

We must also be prepared to push back against the fear and risk-aversion, and ask for what we want, presenting a draft Withdrawal Agreement to back it up. We have done altogether too much negotiating with ourselves.

From an EU point of view, any failure by the EU to reach a deal acceptable to its nearest neighbour, closest ally and largest third-country market will have enormously adverse political and economic consequences, within the EU and around the world. There are significant and powerful economic forces at play, and not all are in the EU’s favour. For example, one aspect of the EU’s very large favourable balance of trade with the UK – now seriously at risk – is the EU’s need to maintain its high market share in UK markets for its agricultural exports. The farm lobby is the most powerful in Brussels, and in Member States. The EU must know that no responsible UK government could, or would need to, allow no deal to mean food price inflation, and that we would have to either apply a third-country tariff of zero for certain agri-foods, or open the relevant trade quotas to other countries (on a first come, first served basis). Irish beef farmers, French beef and dairy, and Bavarian dairy farmers would lose market share almost instantly and this will have a massive impact on them. For the UK, lower food prices could well be the unexpected bonus of the rejection of the present Withdrawal Agreement.

While there will no doubt be those who say that what we are offering is not enough to save a very bad deal, there will also be those who say it is too much for the EU to accept. But our aims are straightforward: to put on the table the necessary changes to the Withdrawal Agreement, a concrete future framework for a trade agreement that builds on their offer to us and, shortly, the full text of such an agreement, specifically noting what the EU has already agreed in other contexts. Let us lift our eyes to a higher vision of what this relationship should look like, instead of the myopic approach all sides have adopted thus far. Let us also recognise that it is impossible to determine the full conditions of our withdrawal, without knowing much more about the future relationship. Indeed, that is the inherent illogic of the EU’s negotiating mandate, which is partly responsible for the current predicament, but that cannot politically bind us at this late stage.

Nonetheless, we have produced a concept of what the Alternative to the Withdrawal Agreement might look like. We strongly advise the Government to present this to the EU immediately, along with a clear framework of a Trade Agreement, the full legal text of which we will also shortly table. Since this builds on what has already been offered, there is very little reason for the EU to reject it. We badly need to show our peoples on both sides of the Channel and the Irish Sea that we have momentum and are moving towards a good resolution. We have a huge responsibility: future generations will not forgive us if we fail them.

As explained, the text we will shortly circulate essentially replaces the proposed common customs territory with a Free Trade Agreement and comprehensive customs and trade arrangements that can serve as the backstop, or if you prefer, front stop, in Ireland. Some changes may be necessary to the Political Declaration, in order to conform to our changes to the Withdrawal Agreement, but most of it can stand, as can much of the Withdrawal Agreement, for example citizens’ rights and financial matters, subject to the money being based on benchmarks and milestones related to progress on the free trade agreement. Some issues, such as Geographical Indications, belong in the future trading arrangements, rather than the Withdrawal Agreement. The UK must also be able to negotiate its WTO modification by itself without having to consult with the EU, and then be free to operate in the WTO as an independent player. We have also turned the non-regression clauses into the sorts of mutual disciplines you would see in a typical Free Trade Agreement and ensured that they are mutual. We have provided that the transition period may be extended by agreement but there is no need to provide for extension now. Deadlines in trade negotiations are important, and concentrate negotiators’ minds. We see no reason to prolong business uncertainty for years.

The changes we have outlined allow a deal to the benefit of all European citizens to be reached before 29th March 2019.

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Without a major rewrite – which she’s not demanding – Theresa May’s Brexit deal will remain unacceptable

Yet again, Brexit produced unprecedented scenes in Parliament yesterday. Using a little known provision of parliamentary procedure, the Government cancelled the planned MPs’ vote on the draft EU Withdrawal Agreement. This latest turn of events will leave many people outside the political bubble feeling bemused and worried about yet another twist in the Brexit saga. […]

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Yet again, Brexit produced unprecedented scenes in Parliament yesterday. Using a little known provision of parliamentary procedure, the Government cancelled the planned MPs’ vote on the draft EU Withdrawal Agreement.

This latest turn of events will leave many people outside the political bubble feeling bemused and worried about yet another twist in the Brexit saga.

Even more disappointing than the cancellation of the vote was the announcement on what the Government plans to do next.

I have been calling on the Prime Minister to seek better terms from the EU. But in her statement in Parliament, it became clear that Mrs May is not going to ask for the major rewrite of the withdrawal deal which is needed. It seems that all she will seek is ‘reassurance’ on the so-called ‘backstop’. What form that reassurance will take is not clear, but it seems unlikely that it would involve altering even one word of the 585 pages of the agreement.

The draft Withdrawal Agreement is not the national interest and does not respect the vote to Leave. Even if the Government is successful in achieving some kind of side letter or declaration on matters relating to the backstop, that is not enough to make the deal acceptable.

I recognise the need for compromise as we settle a new relationship with our European neighbours. I strongly believe we need to listen to views of people on all sides, whichever way they voted in the referendum. But right across the spectrum of views on Brexit, there are many who believe that this draft agreement is not the right one for our country.

A legal obligation to pay in the region of £38 billion to the EU without any certainty on our future trading relationship will significantly undermine our negotiating position. We would be giving up a key advantage in the negotiations for little in return.

The so-called ‘backstop’ would do even greater harm. It is not acceptable for the United Kingdom to become a satellite of EU, locked permanently into their regulatory and customs orbit, without a vote or a voice or even an exit door. Even the EU’s trade agreement with tiny Moldova has a break clause allowing them to make a unilateral decision to leave.

Northern Ireland would have an even greater proportion of its laws determined by institutions in which they have no say than would be the case in the rest of the UK. Even listing the titles of those laws takes over 60 pages of the draft agreement.

As the Attorney General’s legal advice confirmed, Northern Ireland would be required to treat Great Britain as a third country in relation to goods coming across the Irish Sea. According to Martin Howe QC, the backstop is arguably inconsistent with the 1800 Articles of the Acts of Union, a core part of our constitution. These state that:

“in all treaties with any foreign power, his Majesty’s subjects of Ireland shall have the same privileges and be on the same footing as his Majesty’s subjects of Great Britain”.

The Articles also stipulate that all prohibitions on the export of products from Great Britain to Northern Ireland, or vice versa, should cease from 1st January 1801.

Even if the backstop were to be entirely removed (and this is not something the Government has said it will ask for), there would still be unacceptable flaws in the draft agreement. In particular, the significant continuing role for the European Court of Justice would prevent us from restoring democratic control over making our laws. Yet when I appealed to the Prime Minister in Parliament yesterday to try to get the role of the ECJ scaled back, she declined to do so.

If Parliament ratifies this treaty, it will be legally binding and it will apply regardless of any warm words or declarations that might be secured from EU leaders over the next few days.

More people voted to Leave in June 2016 than have voted for anything else ever in the history of British democracy. This was a legitimate expression of the natural desire to be an independent self-governing democracy, the basis on which most countries around the world operate their systems of government.

EU membership means vesting supreme law-making power in people we do not elect and cannot remove, people who in this negotiation process have shown clearly that they do not have our best interests at heart and are prepared to try to inflict punishment on us for the democratic choice we have made.

Brexit is an issue which has divided the country. We need to try find a way to bridge the divisions which the referendum has exposed. But I do not believe that the draft Withdrawal Agreement is the right way forward for my constituency or my country.

I will continue to press the Government to seek changes from the EU to remedy the deal’s fundamental flaws. If the EU refuse. then we must be prepared to walk away without a deal and step up preparation for a clean break Brexit on 29th March on WTO terms.

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Exposed: the legal myths being promoted about the backstop and the Withdrawal Agreement

As the vote on Theresa May’s deal grows near, some people seem to be looking desperately for means of escape from the backstop Protocol – or worse still, persuading themselves that means of escape exist or can be invented which will prove to be a mirage. The Attorney General’s advice to the Cabinet explained the […]

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As the vote on Theresa May’s deal grows near, some people seem to be looking desperately for means of escape from the backstop Protocol – or worse still, persuading themselves that means of escape exist or can be invented which will prove to be a mirage.

The Attorney General’s advice to the Cabinet explained the position with stark clarity. If the UK ratifies the Withdrawal Agreement, we cannot prevent the backstop coming into force, nor escape from it once it is in force, except with the agreement of the EU – and if there is a breakdown in negotiations then it will “endure indefinitely” with no legal route of escape.

Despite the clarity of the advice, some Members of Parliament seem to be convincing themselves – or maybe are being convinced by others – that there could be other routes out of the backstop if only the right amendment is framed in Parliament. It is vital that Parliament should not vote based on a mistaken understanding or wishful thinking about the legal situation. So some of these ideas need to be examined very carefully.

We can get out of the backstop Protocol by arbitration

There is a clause in the Withdrawal Agreement which commits the UK and the EU to use “best endeavours” and “good faith” to agree a future trade treaty which would replace the backstop. 10 Downing Street were publicly arguing that this could be enforced against the EU by arbitration. Conservative Party Chairman Brandon Lewis described the “best endeavours” obligation as a “very high legal bar” in a teleconference call with Conservative Party activists.

But the Attorney General’s advice to Cabinet explains with great clarity why it is “highly unlikely” that the EU would conduct themselves in such a way as to be vulnerable to an adverse arbitration finding. The clause does not require the EU to set aside its own interests or propose terms which the UK would like or find acceptable; “all they would have to do to show good faith would be to consider the UK’s proposals, even if they ultimately rejected them. This could go on repeatedly without such conduct giving rise to bad faith or failure to use best endeavours”.

So the Government and Party machines have been pushing in public legal arguments which the Government’s internal advice reveals they know to be rubbish. It is regrettable that Theresa May’s desperate political struggle to sell her deal to a sceptical Parliament, Party and country has gone beyond the realms of normal political spin and exaggeration into the territory of relying on misrepresentation of the legal consequences of the deal.

Now that this illusion about good faith arbitration has been put to bed by the publication of the Attorney’s advice, it is worrying that credence is apparently being given to other mistaken legal perceptions.

Vienna Convention and fundamental change of circumstances

An amendment to the Government’s motion has been tabled by Sir Edward Leigh. This “notes that the Vienna Convention on the Law of Treaties makes it absolutely clear that a sovereign state can abrogate any part of a treaty with an international body in case of a fundamental change of circumstances since the Treaty was agreed; notes that making the Northern Ireland backstop permanent would constitute such a fundamental change of circumstances; and therefore calls for an assurance from the Government that, if it becomes clear by the end of 2021 that the European Union will not agree to remove the Northern Ireland backstop, the United Kingdom will treat the indefinite continuation of the backstop as a fundamental change of circumstances and will accordingly give notice on 1 January 2022 to terminate the Withdrawal Treaty …

In fact Article 62 of the Vienna Convention makes it absolutely clear that a fundamental change of circumstances cannot be used to excuse a State from complying with its treaty obligations, except in the most limited and extreme circumstances which certainly do not apply here. If the negotiations between the UK and the EU deadlock in the way envisaged in the Attorney General’s advice, that doesn’t even count as “a change of circumstances”: it is just one possible way in which the terms of the treaty pan out, not a change in circumstances external to the treaty. Even if you call it a change of circumstances, it cannot be relied upon to excuse non-compliance with the treaty because it is “foreseen by the parties” at the time of conclusion of the treaty.

The Attorney General’s advice (rightly) does not even mention this Vienna Convention argument as a possible route out of the deadlock, because it is a complete non-starter. It is a matter of puzzlement and considerable concern that Sir Edward Leigh and his colleagues have somehow been given the impression that a notice of termination could be given on this ground on 1 January 2022 as suggested by the text of their amendment.

Can there be a Parliamentary lock on the UK entering the backstop Protocol?

This suggestion arises from remarks by the Prime Minister on the BBC Today programme on 6th December, and the tabling of an amendment by Sir Hugo Swire and others which is billed as giving Parliament control over the coming into force of the backstop Protocol.

The wording of this amendment is long and involved, but the fundamental problem is that the United Kingdom under the treaty has no “lock” against the backstop coming into force. For international law purposes, Parliament is an organ of the United Kingdom and therefore cannot exercise any greater powers than are allocated to the UK under the treaty.

Confusion is caused on this point by the domestic law doctrine that Parliament can make or unmake any law, including in cases where that would cause the UK to be in breach of its international treaty obligations. But breaching international treaty obligations is a grave matter and it is therefore extremely doubtful if Parliament were given a theoretical right to block the Protocol that it would ever be exercised.

The amendment asks that Parliament be able to approve the commencement of the powers implementing the backstop. Parliament has that power anyway, since an Act of Parliament will be required to give effect to the Protocol inside the United Kingdom. In theory as a matter of UK law, Parliament could refuse to pass that Act. But if the backstop comes into force as a matter of international law, Parliament would have no choice but to legislate and to approve commencement of the powers, unless it were willing to put the UK into overt breach of its obligations under international law.

The amendment also calls for a legal duty on the UK Government “to have an agreed future relationship” or other replacement arrangements for the Protocol one year after it comes into force, and an assurance by the EU that “both parties intend to agree” by that date.

That is an assurance which the EU can easily give, and no doubt will give in a stage-managed and choreographed way, but which is completely meaningless in practice. Saying that they intend to agree does nothing to stop the EU from holding out for terms which are totally unacceptable to the UK, and blaming the failure to reach agreement on the UK’s intransigence in not submitting to their demands. Likewise, a legal duty on the UK Government to agree a future relationship by a certain date is completely meaningless, since it would only be possible to reach an agreement if the EU were to offer acceptable terms.

Unfortunately what this amendment contains is a mixture of legal nonsense in the form of meaningless or unenforceable legal duties and assurances, coupled it would appear with a good dose of wishful thinking or even self-delusion.

The UK has a ‘choice’ about whether to enter the backstop

The Prime Minister claimed in her interview on BBC Radio 4’s Today on 6th December that it was “not automatic” for the backstop to come into effect, and that the UK has a “choice”. This is only true in the sense that the backstop will indeed automatically come into effect, unless the EU is willing to do an acceptable deal with us before the end of the transition period, or unless the transition period is extended.

The limited element of “choice” which the UK has is whether to extend the transition period in order avoid the backstop coming into force for a time. That defers but does not solve the problem of the backstop automatically kicking in, at great cost in terms of money and greater cost in terms of keeping the UK under EU laws in a state of vassalage for a longer period. The UK would have no vote or veto on regulatory changes to EU rules which could cause severe damage to the UK financial services industry, and the risk of this kind of damaging regulatory attack against UK interests would go up and up the longer the transition period is extended.

Even the choice to extend the transition period is not unfettered. Under Article 132, a decision to extend the transition period is by the Joint Committee. This means that the EU and the UK must both agree to the extension within that Committee. Under Art.132(3) that decision must deal with a number of matters including establishing the amount of the UK’s contribution to the EU budget.

That is rather like having an “option” to buy a house which does not specify the price, allowing the seller to charge what it likes if the option is exercised. If the UK were for whatever reason desperate to extend the transition period and so defer (but not avoid) the backstop, the EU would have us completely over a barrel on the financial payments.

The UK now has a “choice” to avoid the backstop, by a very simple means. That is to reject Theresa May’s deal.

The Grieve amendment allows Parliament to take control of Brexit

It has been widely reported in the media that Dominic Grieve’s amendment would allow Parliament to take control of the negotiations with the EU after Theresa May’s deal is rejected, or even “stop Brexit”. This is not the case and these suggestions may be attempts to induce Brexit-supporting MPs to back the deal out of misplaced fears of what a Remain-dominated Parliament might do.

The amendment does not change any law. It simply waives a rule in the Standing Orders of the House of Commons which would prevent amendments being made to motions before the House when the Government reports its future intentions. But a resolution of the House of Commons does not, except where specified by statute or in very special circumstances, have any legal force. It cannot amend any law. It cannot direct the Government in the exercise of its foreign relations powers as a matter of law. Any effect it has in that context is political only.

Leaving on 29th March 2019 without a deal is the default course of action which is now hard-coded into the law. Any alternative route – whether a different deal with the EU, an extension of the Article 50 period, a referendum, or (most radically) a withdrawal of the Article 50 notice – would require the active cooperation of the Government in all cases, and in almost all eventualities the passage of a Bill through both Houses to Royal Assent between now and 29th March 2019.

Therefore Brexit-supporting MPs who do not think that this deal is in the national interest should not be deterred from voting against it by the Grieve amendment, or by implausible claims by the Prime Minister that rejection of her deal might lead to “no Brexit.”

Conclusion

Members of Parliament would be well advised not to accept any assertions about the legalities of the deal which emerge directly or indirectly from the government machine, without first obtaining independent legal advice.

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Why I, a staunch Brexiteer, support the Prime Minister’s Withdrawal Agreement

In the face of a rigidly ideological, hard-left Labour Party, it is the duty of all Conservatives to embrace pragmatic political thinking in order to maximise real-world policy benefits. When it comes to Brexit, I believe that means backing the Prime Minister’s proposed Withdrawal Agreement in the Commons vote this week. Put simply, there is […]

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In the face of a rigidly ideological, hard-left Labour Party, it is the duty of all Conservatives to embrace pragmatic political thinking in order to maximise real-world policy benefits. When it comes to Brexit, I believe that means backing the Prime Minister’s proposed Withdrawal Agreement in the Commons vote this week. Put simply, there is no viable alternative; voting down May’s deal could throw the entire Brexit project wildly off course.

No Deal is not a plausible option. I do not make that statement as a Remainer who professes through gritted teeth to have accepted the referendum result as ‘the will of the British people’ but will lurch towards any opportunity to keep the UK as closely aligned to the EU as possible. Rather, I have long touted the benefits of an independent trade policy, unilateral immigration controls and true parliamentary sovereignty. Had I been of age in June 2016, I would have voted to leave the EU. I truly believe that the best way to grasp the opportunities presented by Brexit is by implementing the terms of Theresa May’s Agreement.

It seems to me that the key arguments presented by proponents of No Deal tend to wither under scrutiny. Whilst the notion of a ‘clean break’ might sound attractive in theory, when it comes to politics – “the art of the possible” – clean breaks are almost never desirable. If we were to leave the EU without a deal next March, British business would suffer immensely in the short term because of chaos at the ports and the instantaneous evaporation of any and all frictionless trade, thereby infringing on our ability to do trade deals elsewhere. Perhaps most devastatingly, a destructive hard border of one form or another would wreak havoc in Ireland. As much as one might resent the legacy of Tony Blair, tearing up the Good Friday Agreement would be like putting a hard border behind the nose to spite the face, to misquote Saint Ebba.

The most common rebuttal to this argument is that temporary measures could be put in place to ease the transition. Economist Ruth Lea, for instance, insists that deals would be done to avert chaos in the short term. Similarly, Dominic Raab talks enthusiastically of a so-called ‘managed No Deal’. The rhetoric of No Deal is loud and proud until it comes to inconvenient realities, when it seems that its feasibility suddenly comes to rest on the implementation of deals, which rather defeats the point. One is inclined to suggest that these deals could be agreed in advance and combined into some form of Withdrawal Agreement that could be put to a vote in the Commons.

The idea of a managed No Deal is a contradiction in terms. No Deal is, by its very definition, unmanaged, and that is precisely why it cannot work. It goes against every fibre of my political being to side with the Europhiles against the Brexiteers on this, but it seems that Corbyn’s ideological politics has had such a momentous effect on the climate of our discourse that even hardline Conservatives have become so idealistic that, having spent their entire careers campaigning for Brexit, they now find themselves denouncing it as it sits in front of them.

The consequences of No Deal, if it were to happen (which appears increasingly unlikely), will rest on the heads of those who voted down the proposed Agreement. Of course, some preliminary mitigating measures have been taken on both the British and European sides but, as the Government’s incessant PR machine has been saying repeatedly for the past eighteen months, nothing is agreed until everything is agreed.

If it turns out that, in the end, nothing is agreed (i.e. No Deal comes to the fore) the Conservative Party risks consigning itself to electoral oblivion for the foreseeable future. Barely three years ago, the UK’s third biggest party signed its own death warrant via an innocuous policy on tuition fees. If the Tory Party suddenly decides that it disagrees with itself on Brexit and causes us to crash out of Europe as a result, the consequences would be unimaginably grave, in the long term as well as the short.

If No Deal is out of the picture, what are the alternatives? Super Canada? Norway plus? Iceland minus? Lapland squared? The bandying about of totally unattainable hypothetical alternative deals is counter-productive and farcical. The Prime Minister’s Agreement is the only one that achieves all the required outcomes from Britain’s withdrawal from the EU. It is a remarkable exercise in pragmatism.

Renegotiation of the Agreement is clearly a fantasy best left to those on the Opposition benches. Even so, there is no other course of action that solves the Irish border problem. As the Prime Minister has pointed out time and time again, every conceivable withdrawal agreement must have a backstop element. I was fascinated by a remark from a Remain-voting Tory MP recently that Brexiteers’ apparent shock and horror when the draft Agreement was published last month seemed almost entirely artificial. For anyone who had been following Brexit, there were no major unexpected concessions at all.

The backstop solution is ingeniously designed for the mutual benefit of us and the EU (though mainly us) so that we essentially have access to the Customs Union that is free from both cost and Single Market immigration, an arrangement undoubtedly much coveted by many of our neighbours. It is not in Brussels’ interest to ‘trap’ us in the backstop for that reason, as well as the fact that their bad faith would be visible to the whole world and their trading reputation would be irreparably damaged.

The other major achievement of the backstop is that it negates the ludicrous ‘backstop to the backstop’ scenario. If a backstop needs a backstop, it is not a backstop. Calls for the insertion of a unilateral withdrawal clause are fatuous; I struggle to believe that all the Brexiteers who lament the lack of such a clause fail to understand that its presence would defeat the very point of the backstop. A safety net is of no significance if it can be yanked away at any moment. There is no feasible backstop-less withdrawal agreement, real or hypothetical. The inevitable conclusion is that many of the Prime Minister’s critics had already made up their minds to resolutely oppose her deal and latched onto the backstop as a means of doing that, despite it being cataclysmically unwise (assuming one actually wants Brexit to happen).

Somebody commented to me recently that the language surrounding the Withdrawal Agreement is highly misleading; it is just that, an agreement, not a ‘deal’ as it is so often called. Given the uproar it has provoked, one would be forgiven for thinking that it pertained to Britain’s long-term relationship with the EU, rather than merely the terms of our departure. The doomsday predictions of an impending government collapse which seem to re-emerge with a renewed vigour almost hourly make the Agreement seem much more consequential than it truly is. Canada+++ is a very good post-Brexit option. The Political Declaration is evidently mere bluster; the true negotiations for the future relationship have not yet got underway in earnest. They have nothing to do with the Withdrawal Agreement.

History will look back on Theresa May’s Withdrawal Agreement as an impressive political feat: she has emerged against all odds bearing an Agreement that is not only workable but ticks all the necessary boxes. That there has been a stark lack of sincere support for it from outside her government staggers me. The Financial Times clenched its jaw and reluctantly endorsed the Agreement, though at great pains throughout to stress that it still believes Brexit is “an act of national self-harm”. On the other side of the debate, Tim Montgomerie takes the line: “I know it’s rubbish, but it’s the best we’ve got” in his justification for backing the deal. The defence offered by both sides is hardly a ringing endorsement.

Providing a comprehensive analysis of the 585-page Withdrawal Agreement in a space such as this is an impossibility, but I believe I have covered the key points. I hereby wish to buck this depressing trend by humbly offering my whole-hearted, enthusiastic support for the Prime Minister’s Withdrawal Agreement. It is a commendable achievement in every sense.

Photocredit: ©UK Parliament/Jessica Taylor

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The Withdrawal Agreement seriously risks compromising national security

I believe those concerned with UK defence should be wary of supporting the EU Withdrawal Agreement proposal that is before Parliament for the reasons I set out below. You may be aware of an issue I have identified with the Withdrawal Agreement that could seriously affect our defence manufacturing industries and our sovereign ability in […]

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I believe those concerned with UK defence should be wary of supporting the EU Withdrawal Agreement proposal that is before Parliament for the reasons I set out below.

You may be aware of an issue I have identified with the Withdrawal Agreement that could seriously affect our defence manufacturing industries and our sovereign ability in defence – namely that much of our UK defence manufacturing industry would not sufficiently be exempt from state aid provisions as it currently is under the EU treaties, if we enter the “backstop”.

I have raised this in the House of Commons with the Prime Minister, the Home Secretary and the Secretary of State for Defence, in the International Trade Committee with the Secretary of State for International Trade, and in joint session of the European Scrutiny Committee and Defence Committee with the Minister for Defence Procurement. In answers, so far I have only been told that the official advice is that they don’t think there is a problem, or that they are not aware of the issue.

Apologies for the complex legal detail below but it is necessary given the cross provisions of the Withdrawal Agreement to set it out in detail to show how exactly my concern arises, from which I have not yet been dissuaded. At the end I include what seem to me to be the very possible practical effects.

In the Northern Ireland protocol of the Withdrawal Agreement (the “backstop”), there is not any (or any adequate) security exemption for a state aid given to a GB (i.e. the UK minus NI) undertaking which might affect trade with the EU. However, there is with respect to state aid given to a Northern Ireland undertaking.

The NI Protocol in the WA distinguishes between:

  • (a) state aid that might affect trade between NI and the EU (Article 12(1) and Annex 8); and
  • (b) state aid anywhere in the UK designed to maintain a level playing field between the UK and the EU (Article 6(1) applying Annex 4 Article 7(1) which in turn applies the EU state aid legislation listed in Annex 8 to the UK in respect of measures which affect trade covered by Annex 2 i.e. within the backstop customs union).

Article 15 of the Protocol applies Articles 346 and 347 of TFEU (the security exemption) to “…measures taken by …the United Kingdom in respect of Northern Ireland.” This would only benefit aid given to an NI undertaking. This should in practice cover (a) above.

I can find no similar provision in respect of state aid described in (b). It might be argued that the list of EU state aid legislation is implicitly subject to Articles 346 and 347. This is not convincing given that other Treaty Articles are listed in Annex 8.

Finally in explanation of Article 2(4) of Annex 2: this Annex sets out the high level rules applicable to trade in goods between the UK and the EU and between the customs union created by the Protocol and third countries (where so provided), and concerns matters which pertain to requirements for tariffs on imports (the EU’s common external tariff) and the EU’s right to make policy and treaties in that respect (the EU’s common commercial policy). Article 2(4) echoes, but is slightly different to, Article 346 and 347 of TFEU. For example, it applies to production and trade in arms, munitions etc. only “as is carried out directly and indirectly for the purpose of provisioning a military establishment.” This is consistent with external tariff barrier requirements being able to be waived for national security reasons.

Annex 2 does not apply to state aid rules applicable to GB undertakings and designed to provide a level playing field – given the specific provisions of Annex 4. Nor does Annex 2 Article 2(4) provide a general security exemption from state aid. However the existence of Article 2(4) highlights the absence of anything similar in Annexes 4 or 8; which might be taken as an indication of a deliberate decision not to provide a security exemption in these latter Annexes. It looks like this may go beyond sloppy drafting.

Parties could have a strong case against state aid being allowed to GB defence industries if the UK were to be in the backstop condition of the Withdrawal Agreement, and the 123,000 jobs in that industry which benefit from UK Government support would therefore be hostage to negotiation of any future Defence and Security or trade agreements between the EU and UK, at a time when the EU’s declared intent is for centrally planned EU forces, operations and defence industrial capabilities.

The meaning of the above mentioned provisions would be interpreted by the European Court of Justice, not UK courts, as per the governance terms of the Withdrawal Agreement.

The practical effect is that defence companies and the UK Government will have to consider whether anything they do together could be considered state aid and make applications to have it permitted. The EU Commission could take cases in UK courts on whether state aid had been applied to anything conceived as qualifying support by the UK Government, and those UK courts would need to refer interpretation of the Withdrawal Agreement and related EU law to the European Court of Justice. Hence our defence capability would be under the direct influence of jurisprudence of the ECJ, which we know takes a purposive approach to evolving the meaning of legislation.

I therefore believe the Withdrawal Agreement is a serious risk and compromise to national security and the UK’s sovereign ability in defence. Only on negotiating further agreement terms with the EU would GB be released, and the EU have already shown how they are prepared to mess with the UK on defence issues such as Galileo, even as the UK Government speaks of the “closest possible” future defence cooperation.

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