Despite Brexit, the Government has covertly signed us up to the EU’s defence agenda

We’ve all heard the arguments over how Theresa May’s Withdrawal Agreement and Political Declaration do not respect the referendum result in areas including fishing, trade, financial contributions and our laws. But the public, MPs and even ministers seem to be oblivious to one of the greatest sleights of hand in recent political history: how Theresa […]

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We’ve all heard the arguments over how Theresa May’s Withdrawal Agreement and Political Declaration do not respect the referendum result in areas including fishing, trade, financial contributions and our laws. But the public, MPs and even ministers seem to be oblivious to one of the greatest sleights of hand in recent political history: how Theresa May has covertly given away control over policy, rules and structures which govern the future of our armed forces and foreign affairs.

Up until Chequers, I was blind to any idea of a sell-out over our armed forces, as were most MPs I have spoken to. How could this even be an issue? It wasn’t in the mainstream news, Brexiteer MPs weren’t concerned, we had Boris Johnson as Foreign Secretary – we appeared to be in safe hands.

As it turns out I was completely wrong.

To sum up an extremely complex situation: Theresa May has signed up the UK to EU defence institutions meaning continued vast annual payments to Brussels, giving away control over major aspects of defence and foreign policy and all this has the power to undermine NATO.

I have spent a considerable amount of time researching this issue, and with the help of the excellent campaigning group Veterans for Britain I have produced a detailed documentary into the matter for my YouTube channel.

Let’s start from the beginning.

It’s 24th June 2016 and Brexiteers like me are over the moon. We had finally done it. Now was the time to celebrate, and look forward to our bright future as a sovereign nation. Whilst our heads were full of optimism and likely still drunk with joy (and the booze from the previous night), the EU were already on manoeuvres.

Just five days after the Brexit vote, a secret paper was published in Brussels to EU ambassadors describing the EU’s Global Strategy, which includes its ‘Implementation plan for Security and Defence’. The paper laid out the groundwork for the bloc’s ambitions on centralising defence and security policy, which would eventually lead to an EU army.

Months later in September of that year, the Defence Secretary at the time, Michael Fallon, used tough language against the EU’s defence power grab. He said Britain would “oppose any idea of an EU army, or an EU army headquarters which would simply undermine NATO.” Oh how quickly the mighty fall.

In the following months Fallon and other ministers responsible at the time waved through EU Council proposals for closer military integration including the EU’s Security and Defence Implementation Plan, European Defence Action Plan and the EU’s Global Strategy. These plans boosted the power and remit of organisations such as the European Defence Agency, European Defence Fund and countless other bureaucratic dreams.

Why did Britain allow this to happen? Well, Boris Johnson – then Foreign Secretary – made the now infamous “dog in a manger” speech in December 2016. Johnson said that because Britain was leaving the EU, it was not our place to cause a fuss by vetoing their plans and he said we should “let them get on with it”.

Over the following year, throughout 2017, the EU continued to build up its defence ambitions, all with no objections from the UK. The key point is that it was implied that Britain would have no involvement in any of their plans.

There was a point when I was researching this whole issue when I asked Veterans for Britain researcher David Banks a simple question. When did the UK decide sign up to all these EU military structures? He replied: “12th September 2017”.

This was the date DExEU published a cross-departmental paper entitled Foreign policy, defence and development – a future partnership paper. This meant no one department could take responsibility directly.

It was in this paper Britain decided to sell out its armed forces.

But the EU already knew this was the plan. How? UK civil servant and defence advisor to the Cabinet Office, Alastair Brockbank, revealed later in an LSE speech to EU diplomats that the Government was always planning to have ‘no gap’ in the UK’s subordination to EU foreign and security policy including EU defence policy. He then went on to lay out the UK’s intentions to stay tied to EU defence structures. The only reason we know this is because he was secretly recorded and subsequently exposed in The Sun. To be clear: a UK civil servant told the EU we would sign up to their Common Defence Policy whilst the British Government said publicly we would not be part of it.

Theresa May’s Munich speech, Chequers plan and now the Withdrawal Agreement and Political Declaration slice by slice signed Britain up to more EU mechanisms in defence until we have come to a situation that Major-General Julian Thompson describes as “potentially disastrous” and “a surrender which will make the surrender in Singapore in 1942 look like a minor event”.

Colonel Richard Kemp, who commanded British forces in Afghanistan, told me the Prime Minister has used our armed forces as a “throwaway bargaining chip” in the negotiations.

Worst of all, it seems MPs had no idea about any of this until recent months. Moderate Leaver Crispin Blunt told me: “I think this subject is in urgent need of very close attention by Parliament about what the medium to long term implications are of what we appear to be signing up to.”

Even vocal Brexiteer Andrea Jenkyns, who has sat on the Brexit Select Committee for the last two years said she only found out a few months ago from a briefing with Veterans for Britain.

However the Government claim this is all nonsense, with Rory Stewart tweeting: “I have just been asked by a highly intelligent hard Brexiteer – with two masters degrees – whether the backstop would mean that we have to join the European army. The answer is ‘no’. We would be leaving the EU, the ECJ, EU Parliament, immigration policy and any idea of ‘EU army’”.

But this simply isn’t the case; Britain is signing up to be involved with the European Defence Agency, the European Defence Fund, the European Defence Industrial Development Programme and PESCO. This is in the Withdrawal Agreement and Political Declaration. All of these together are openly described the EU as the beginnings of its military unification project – ‘integration’ which leads to the ultimate creation of ‘a Common Defence’ in just over five years’ time.

Some people ask why it even matters that Britain is signing away control to the EU in defence. After all, we are allies and have similar objectives. The answer to this is in two parts: democratic accountability of defence decisions and the existence of NATO, the fundamental force which has protected the Western world for decades. The European Union is not only leeching on the sovereignty of its member states, it is actively attempting to duplicate and therefore undermine NATO and packages its political moves with reckless rhetoric about the US as an untrustworthy ally or even an enemy. Putin is laughing away at the prospect of an EU army, because he knows that it will weaken his biggest adversary in NATO.

Not only will it make us less safe, but is will also make us less democratic. It means signing away control over major aspects of defence policy and procurement to the unelected European Commission and its numerous agencies, and we will pay a heavy price in monetary and sovereign terms for the giveaway.

Not enough Brexiteer voices are talking about this, partly because they haven’t understood what’s going on, along with most of the public and defence establishment. It is vital MPs and commentators hold the Government to account on this issue. After all, it is the defence of this nation that is at stake.

If they don’t, Britain could sign away its military autonomy, and it will be years before anyone realises.

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The Withdrawal Agreement’s Northern Ireland Protocol is neither a “backstop” nor temporary

Within the draft Withdrawal Agreement (“WA”), 175 pages consists of a Protocol whose formal title is “Protocol on Ireland/Northern Ireland”, together with 10 detailed Annexes which form part of it. Informally it is called the Northern Irish “backstop” protocol. Neither its formal nor its informal title really describes it. It should be called “the whole […]

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Within the draft Withdrawal Agreement (“WA”), 175 pages consists of a Protocol whose formal title is “Protocol on Ireland/Northern Ireland”, together with 10 detailed Annexes which form part of it. Informally it is called the Northern Irish “backstop” protocol. Neither its formal nor its informal title really describes it. It should be called “the whole UK permanent lock-in protocol with extra lock-in for Northern Ireland.”

Most of its provisions do not come into force until the end of the transition period. However, at that point and in the absence of an agreement between the UK and the EU to the contrary, the whole Protocol will come into force and will require the whole of the UK to stay in a Customs Union with the EU – a Customs Union in which the UK has no vote on the tariffs to be charged, or on with whom to do or not do trade deals, but will be obliged to follow the EU’s tariffs at all times. Further, it obliges the UK not to deviate from EU rules on a wide range of so-called “level playing field” areas of policy, including environment, workplace rights, state aids and competition law.

Secondly, it will require Northern Ireland (unlike Great Britain) to be subject to a large number of EU Single Market regulations and directives, and customs and tax rules.

Finally – and this is the most important point – the UK has no right under the treaty either to prevent the Protocol coming into effect or, once it is in force, to leave it, unless the EU agrees. In this regard, the Protocol is unique amongst trade agreements, which invariably contain clauses allowing each party the right to withdraw on notice.

The Protocol can only be stopped from coming into force if the EU agrees with the UK to replace it before the end of the transition period with a trade agreement. If the Protocol comes into force, the UK cannot exit from it without a “joint” decision (meaning the EU has a veto) in the ‘joint committee’ (article 20 of the Protocol). This absence of a clause allowing withdrawal on notice is unprecedented in the EU’s own trade agreements with non-member countries. Under international law, future governments and Parliaments would be locked in and be bound by the treaty concluded by this government.

Because of this lock-in, the Protocol would not operate just as a ”backstop”. In negotiations on the future trade treaty, the EU would have no incentive to offer the UK terms which are any better than the Protocol – since if the UK fails to agree to the EU’s demands, the Protocol automatically comes into effect and lasts indefinitely, giving the EU tariff-free access for its £95bn trade surplus in goods and keeping up the EU’s external tariff wall around the UK market as a barrier against competing goods from non-EU countries.

The Protocol will require the whole UK to remain in a Customs Union at the end of the transition unless there is agreement between the UK and the EU to the contrary.

It will require Northern Ireland (unlike Great Britain) to be subject to a large number of EU single market regulations and directives, and customs and tax rules.

Under the backstop, the UK would have to follow the EU’s external trade policy and apply EU import tariffs. This  would kill stone dead the chances of the UK following an independent trade policy after Brexit. We would not be able to offer tariff concessions to free trade partners, so they would have no incentive to offer us concessions on say services which we would want to export to them.

Further, it will render the theoretical right to negotiate third country trade agreements during the transition period totally meaningless. Since we will be unable to tell prospective free trade partners when we will be free to implement such an agreement, or indeed whether we will ever be free to do so at all, they will have no interest in spending time and effort on serious negotiations with us.

This subordinate relationship also applies to so-called trade remedies, where the EU takes action to impose anti-dumping or countervailing duties under WTO rules on non-EU countries. The EU will take these actions in order to protect its own interests, regardless of any negative impacts on UK consumers, and the UK will be obliged to comply with those measures by imposing higher tariffs – even where this is contrary to the UK’s interests. Under Art.4(3) of Annex 2, we will have merely the right to be consulted.

Where dumping affects UK industries, the UK will have no right to take anti-dumping action to protect its own interests. The UK would be totally  dependent on the EU to take action. If UK industries but no EU industries are affected, why should we expect the EU to do that?

It is quite extraordinary for one of the leading trading nations of the world to be a complete rule taker on its trade policy in this way. This one-sided Customs Union arrangement would destroy the ability of the UK to take advantage of the freedom brought by Brexit to forge a new independent trade policy and would shackle us permanently to being a dependency of the EU.

The above is Martin Howe QC’s  summary of the conclusions of a longer article published by Lawyers for Britain. He will be following up soon with a study of the constitutional consequences of the Northern Ireland Protocol and the way it treats Northern Ireland separately from Great Britain.

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Brexit must mean Brexit again, Prime Minister

After the past week, the grassroots supporters of my campaign, Stand Up For Brexit, are more frustrated than they’ve ever been. This time last Thursday it seemed that, at the very least, the voice of of Brexiteers would finally be heard. The Government’s planned Withdrawal Agreement – and subsequent deal – would be written off […]

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After the past week, the grassroots supporters of my campaign, Stand Up For Brexit, are more frustrated than theyve ever been. This time last Thursday it seemed that, at the very least, the voice of of Brexiteers would finally be heard. The Governments planned Withdrawal Agreement – and subsequent deal – would be written off as unacceptable and a new direction would be taken, whoever stood at the helm. Today, we saw Theresa May get to her feet during Prime Ministers Questions and deliver an ultimatum: its her Brexit or no Brexit at all.

Unfortunately, Mrs. Mays Brexit already is no Brexit at all. It is a capitulation, being driven through with blackmail and threat, which makes a mockery of the referendum result and will tie the UK into the EU permanently. As things stand, the Government intends to hand over £39 billion in exchange for practically nothing. The dealwill remove our fisheries from our control and precipitate the final destruction of our fishing industry. The dealwill keep us locked in the Customs Union, and split Northern Ireland from the rest of the UK. Perhaps worst of all, the dealwill make us a rule-taker of the EU, with EU law supreme and EU judgments final. How have we ended up in this position?

Part of the problem is simple arithmetic. The overwhelming majority of MPs are Remain supporters, who were shocked by the 2016 result and seem determined to neutralise it. Through their eyes, maybe this makes sense. Its very hard to champion a policy which you do not believe in, particularly such a major change of policy as leaving the EU. Just as you would not expect a government of Brexiteers to lead the UK deeper into the European federalisation project, so it was wishful thinking to imagine a government dominated by Remainers would be best placed to disentangle us from it.

There have been honourable exceptions to this. The former Northern Ireland minister Shailesh Vara, a Remain voter, demonstrated exactly the kind of nimble mind and respect for the electorate we need from our elected representatives when he resigned over the Withdrawal Agreement. If only more ministers had behaved like that.

We now have 56 Conservative MPs who have pledged to our campaign. They have committed to upholding the principles of Brexit, outlined by Mrs May in her Lancaster House speech, and sadly abnegated by her Withdrawal Agreement. More MPs are pledging daily, outraged by the attitude of the European Union. Only today we have heard from Monsieur Barnier that the proposed deal is non-negotiable – an affront to the United Kingdom, which remains the worlds fifth largest economy and arguably its premier soft power. Sadly, Mrs. May has shown little willingness to date to challenge the EU. She has lived up to her bloody difficult womansoubriquet. The problem is, her stubbornness and refusal to compromise has been mostly directed at Brexiteers and her own party.

But Brexiteers are fighting back. Every MP who pledges to support my campaign is not just making his or her own views clear, but also reassuring grassroots Conservatives – and Leave voters up and down the country – that there are politicians who are serious about honouring the referendum result – and the Toriesmanifesto promises. In these turbulent times, it is a gesture which resonates well beyond Westminster and party politics.

The irony is that the parliamentary arithmetic which has led to the Governments proposed plan will also ensure they cant pass it. Perhaps this will lead to more letters being written to Sir Graham Brady. Perhaps not. Either way, it will be a clear signal that the policy needs to change.

If it doesnt, the Conservative Party is in trouble. Just as the heavily engaged grassroots campaigners who support my campaign are angry and frustrated by what has happened to Brexit, so the Leave voters who backed the party at the General Election will dissipate into anger and apathy. To quote Dr. Julian Lewis, one of our most recent pledges:

If this goes through, and if Brexit is sold out in this way, there is no doubt in my mind that the Conservative Party will be annihilated at the next election.

The 2016 referendum result was a historic opportunity for change. It was a historic chance for the Conservative Party to re-establish itself as a patriotic party of ordinary people. If were not careful, it will be the historic flashpoint which ushered in Corbynism and removed the Conservatives from office for a generation.

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Shocked as I am to say it, there does appear to be an establishment conspiracy against Brexit

Some months ago during a meeting of the European Parliament’s Conference of Presidents – which I sometimes attend as a substitute for EFDD Group Leader Nigel Farage – there was a report back on Brexit talks by the Parliament’s Brexit steering group. One member hinted that keeping open routes to get the UK back into […]

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Some months ago during a meeting of the European Parliament’s Conference of Presidents – which I sometimes attend as a substitute for EFDD Group Leader Nigel Farage – there was a report back on Brexit talks by the Parliament’s Brexit steering group.

One member hinted that keeping open routes to get the UK back into the European Union had been made a very high priority by both the EU and UK sides in the talks. At the time (pre-Chequers), I thought this to be something of a long shot. But it lodged in my mind nonetheless.

Then I heard something similar just two weeks ago from another senior EU source. This time the wording was more explicit and the concept far more developed. The plan was to get the UK back into full EU membership in time for the European Parliamentary elections of 2024, meaning we would have only technically been outside for one term, 2019-2024.

Further comments suggested that a “purgatory backstop” would be used to persuade the UK to reapply for membership rather than languish in the equivalent of EU solitary confinement on a diet of bread and water. Far from having left the prison, we would have to beg to go back on the wing and probably only get accepted on inferior terms – no budget rebate, fewer national vetoes – and possibly an undertaking to be absorbed into the euro and Schengen in due course too.

Our fate would also serve as a perfect example to other troublesome member states – especially Italy and the smaller countries of central Europe – as to what would unfold when a country challenged the writ of Brussels.

Now, in general, I do not go a bundle on conspiracy theories. I am not one to blame unexpected political developments on Bilderberg Group meetings or the like. But when the issue at stake is as momentous as the future path of the United Kingdom within the international order and when a tightly-knit establishment is of one mind and yet a majority voted the opposite way, then means, motive and opportunity all point to the possibility of an organised and sophisticated subversion of the wishes of the people.

When someone as calm, analytical, well-connected and balanced as Michael Portillo declares, as he has, that there has been a conspiracy against Brexit then one’s mind is certainly opened up to that possibility. The constant stream of pro-EU British politicians who have been over to Brussels for unofficial private talks with EU chief negotiator Michel Barnier merely strengthens the suspicion.

And further developments in recent days have convinced me that there is now a private understanding between leading figures in the UK political and civil service establishment on the one hand and the Brussels elite on the other that a preferred pathway to the UK rejoining is now in place.

A key moment came when Barnier raised at the weekend the prospect of an extension to the so-called “transition period” during which Britain sits as a de facto EU state – subject to all the controls and policies of the EU but without political representation – until the end of December 2022. That would mean moving into the indefinite backstop, with no unilateral right to leave it, at the start of 2023.

This timing is key because it will mean the relationship between the UK and the EU will not have been settled and will dominate a British general election that must take place by the middle of 2022. In such an election, the leading pro-EU force, the Labour Party, could blame the failure to enact Brexit and the looming purgatory of the backstop fairly and squarely on the Conservatives.

What would be more natural than for it to offer a new referendum to the British people within the first year: shall we settle into the backstop as a vassal state or rejoin the EU as a full member? In such a Hobson’s Choice referendum I doubt I would vote at all. But even I could see the logic of preferring to rejoin the EU – which a country theoretically has the right to leave – rather than being stuck in the humiliating backstop with no way out.

Up until the publication of Theresa May’s withdrawal agreement, I had always thought that one secure advantage even of Brexit In Name Only would be that pro-EU forces would have to switch from being Remainers to Rejoiners – and that given only zealots would wish to reopen this can of worms anytime soon, they would find that a very hard sell.

And yet the Remainer Theresa May has managed to create an attainable path for them by making her own version of Brexit so appalling that even Brexiteers are saying being in the EU is better.

And what serviceable proposition could the Tories put in their own manifesto at the next election to compete for votes on this dominant issue? On the working assumption that May has been succeeded either by another figure who campaigned for Remain in 2016 or a lukewarm Leaver, there is every chance that the Conservatives too would support giving the public an “emergency brake” on the Brexit process in a new referendum. After all, they would be able to point out that the referendum mandate was now six years old and that a lot of water had flowed under the political bridge since then.

What the Tories will certainly not be able to do is promise to take the UK out of the backstop and out of the customs union and into a future of new dynamic trade deals with the sunrise parts of the global economy. They will have precluded that possibility via their own undertakings to the EU during the present Parliament. They will have locked our country into a legally-enforceable trap and could only promise a credible way out of it with the goodwill and support of the European Commission and other EU institutions. And the only way the EU will ever allow us out is if we rejoin.

As Sabine Weyand – Mr Barnier’s German deputy – recently told reporters, the withdrawal agreement hands the EU sufficient leverage to ensure the UK remains in permanent high alignment with it.

So as the House of Commons’ “meaningful vote” on Mrs May’s withdrawal agreement draws near, it is clearer than ever that nobody who is sincere about supporting Brexit should have anything to do with her plan.

It will inexorably lead not to taking back control, but to a further diminution of UK national sovereignty, below the eight per cent voting weight we have in the Council of Ministers or the 10 per cent in the European Parliament to zero per cent in transition and then in the backstop.

And if we rejoin instead, we will be going back to an EU that is pushing ahead fast with setting up its own army and will have abolished more national vetoes thanks to powers that Jean-Claude Juncker has referred to as unused “treasure of the Lisbon Treaty”.

That a British Prime Minister could have played a central role in locking the UK onto such a path after having stood at the general election on a down-the-line Brexit manifesto is profoundly shocking. Her culpability is complete. Remember she went behind the backs of two successive Brexit Secretaries to make far-reaching concessions to Brussels and twice tried to bounce her Cabinet into signing up to her plans in ruthlessly plotted manipulations at Chequers in the summer and 10 Downing Street last week.

The role of the Chancellor in not only blocking most preparations for a no-deal Brexit but also organising big business warnings of Armageddon should we leave without an agreement has also been crucial. But it can now be seen that the idea he was ever being “slapped down” by a Prime Minister committed to delivering on her Brexit promises was always an elaborate con.

The only chance we now have of rescuing Brexit is if MPs vote down Mrs May’s deal and the Government is forced to switch course to preparing for a WTO Brexit (by the way, in what state are those contracts with ferry companies that we were told would need to be signed by the end of last week to make such a course viable?).

Mrs May’s threat – sometimes uttered, sometimes withdrawn – that voting down her deal may lead to no Brexit at all should not put off a single Brexiteer. No Brexit at all would force into the open the establishment conspiracy against Brexit, leave us with our 8-10 per cent residual sovereignty intact in the EU, save us a bundle of money and give us every chance of seeing a genuinely pro-Brexit Prime Minister take office with a landslide majority and on a mission to right the wrong in 2022.

Certainly a no-deal Brexit at the end of next March will now be bumpier in the short-term than it need have been had it been properly planned for over an extended period. But as one wag put it over the weekend, on 4th July 1776 the United States of America crashed out of the British Empire without a deal. And it has never looked back.

Thanks to the political venality of Theresa May, the choice facing our country is between freedom and serfdom.

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The opposition to Theresa May’s deal proves Brexit was about far more than controlling immigration

I’ve lost count of the number of times I have rolled my eyes at embittered Remainers telling me that people didn’t know what they were voting for when they voted to Leave the European Union. Or indeed, that the vote was purely about immigration and symptomatic of a ‘Trump-like’ nationalism which has infected the Western […]

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I’ve lost count of the number of times I have rolled my eyes at embittered Remainers telling me that people didn’t know what they were voting for when they voted to Leave the European Union. Or indeed, that the vote was purely about immigration and symptomatic of a ‘Trump-like’ nationalism which has infected the Western world – an isolationist construct which fails to give due consideration to the economic consequences.

This pompous view was articulated to me by a guest at a dinner party I recently attended. The Remainer in question proclaimed, whilst sitting with a group of university-educated friends who uncomfortably nodded along: “I can understand why you voted to Leave, you know what sovereignty means, but the majority of people who voted to Leave don’t. Most people voted to Leave because they are anti-immigration. We can’t go ahead with Brexit…” before then echoing that favourite line of Remainers that “people did not vote to make themselves poorer”.

I was affronted by this statement and responded by asking: “What makes you think that you know better? How can you qualify the claim that people didn’t understand what they were voting for?”

There is something distinctly illiberal about the attitude of the self-proclaimed liberally-minded individuals with whom I was sitting around that table. They seem to believe that there is only one prescribed view of a modern internationalist world, which is entirely conditional upon membership of the European Union.

This sense of moral and academic superiority displayed by some Remainers, more than two years after the referendum, is not only undemocratic but arrogantly misguided. It shows a basic misunderstanding of people’s reasons and motivations to vote to Leave.

It may be true that the average person on the street does not understand the in-depth intricacies of the political arguments surrounding Brexit – on either side of the debate. But this does not matter. For the average person who voted to Leave, they wanted to see an outcome which achieves a palpable sense of freedom: the ability to have control over their national destiny with power ultimately in the hands of the British people and executed through our democratic institutions (sovereignty). This idea adheres to the simplest of principles outlined by the Leave campaign. At its heart, Brexit was a grassroots democratic movement for the long-term future of our nation.

Two and a half years after the referendum, much of the Vote Leave community is twitching with discomfort following the publication of the Prime Minister’s Withdrawal Agreement.

There are currently ongoing debates around the adequacy of this ‘deal’. Many of the anxieties are centred around the potentially indefinite ‘transition’ period – whereby we remain in the customs union, unable to strike new trade deals –  and the extended jurisdiction of the European Court of Justice. A significant perceived flaw of the document is that we may be trapped in an endless backstop, which the UK could not leave without the EU’s consent. In turn, this would compromise the Union, by placing Northern Ireland in a different position to the rest of the UK, with closer economic alignment. Other concerns include the UK continuing to accept the EU rules on VAT, not to mention a huge £39 billion exit bill that many believe to be unacceptable.

Aside from the debate surrounding the apparent flaws of the document, it is clear to me that the Prime Minister’s deal has achieved one thing: it has disproved the Remainers’ myths that Leavers did not know what they were voting for and that the vote was purely motivated by nationalism and a so-called desperate cry to reduce immigration.

The Prime Minister’s deal effectively addresses the immigration issue. It puts an end to freedom of movement, the policy which some suggest was the primary cause of the Leave vote. But many of us Leavers remain dissatisfied. Whilst addressing the need to have control of immigration, that is certainly not enough because concerns with the plan are largely around the concept of sovereignty.

The greatest inadequacy of the ‘deal’ is that it fails to ‘take back control’ in many different aspects of our relationship with the EU. Many leavers have concluded that this deal leaves the UK as a mere subsidiary of the EU.

A couple of nights ago, I went to my local pub and spoke with the locals who I know raised a glass with Iain Duncan Smith when he visited on the campaign trail with Vote Leave. When asked how they felt about the deal, they said they felt disappointed and somewhat underwhelmed, noting that there was no point in Brexit if the UK remained answerable to Brussels. I saw yet again this popular drive for freedom: the idea that a vote for Brexit was about a strong sense of political vision, striving for identity in the modern world. I saw no confusion or regret about the way those people had voted.

No one could question the complicated nature of this negotiation, which requires us to untangle ourselves from the web which the EU has weaved through our constitution over the past four decades. However, for the sake of democratic integrity, Leavers have always craved an ambitious liberty-led Brexit, rather than a pragmatic one.

The average person will not be flicking through the pages of the colossal Withdrawal Agreement, but seeking clarity from media reports and asking: does this plan take back control? Does it achieve what they want Brexit to be?

The Remainers, who still are sulking about the referendum outcome, may be surprised to learn that the vast majority of Leave voters, regardless of academic accolades and social or economic backgrounds, have strong convictions about Brexit: a clear vision for this national project. Leavers are in pursuit of sovereignty, not just in name, but in a tangible reality.

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The proposed Withdrawal Agreement breaches international human rights conventions

On Friday Michel Barnier told a meeting of EU27 ambassadors the EU has a “duty” to stand firm on its key Brexit red lines and not compromise on the draft Withdrawal Agreement. However, what seems to have escaped M. Barnier’s attention – and that is the most generous way of putting it – is that […]

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On Friday Michel Barnier told a meeting of EU27 ambassadors the EU has a “duty” to stand firm on its key Brexit red lines and not compromise on the draft Withdrawal Agreement. However, what seems to have escaped M. Barnier’s attention – and that is the most generous way of putting it – is that some of those red lines are serious breaches of international human rights conventions and could even lead to an investigation by the UN Human Rights Committee.

The most important area where the draft text breaches human rights conventions to which all EU member states have signed up is the requirement that the UK cannot leave the customs backstop without the permission of the EU. There is is a further potential breach over the division of the UK created by the EU insistence that Northern Ireland be subjected to additional EU regulations over which they will have no say.

Specifically, the draft Withdrawal Agreement breaches the International Covenant on Civil and Political Rights (ICCPR). The important thing about the ICCPR is that unlike many other human rights conventions, such as the Universal Declaration of Human Rights, the ICCPR has legal teeth because countries ratifying are required to give it legal status in their country. That means that any breach of it can be subject to judicial review. The very first article of the ICCPR states:

Article 1

  1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
  2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
  3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Please note that first section:

All peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic… development.

Requiring the UK to sign a treaty taking away that right to determine our own political and economic development i.e. leave the backstop, without the EU’s permission, is a clear violation of Article 1 of the ICCPR.

Now, the EU actually makes great play of the importance of the ICCPR; in fact, it is a major tool of EU foreign policy. Through the EU’s Generalised Scheme of Preference (GSP), it grants a number of developing countries zero tariff or low tariff access to the EU Single Market – providing that they actively comply with a number of international human rights conventions, among which the ICCPR is prominent.

Compliance requires not simply saying the right thing, but also doing the right thing. For example, in February this year there was serious concern amongst business leaders in Pakistan that they could lose GSP status precisely because of Pakistan’s non-compliance with aspects of the International Covenant on Civil and Political Rights. It is therefore an extraordinary and shameless act of double hypocrisy for the EU to breach the ICCPR in such a blatant way.

There are actually other international human rights conventions which the EU has potentially breached in the draft Withdrawal Agreement as well. For example, Article 73 of the UN Charter which relates to countries which do not have ‘a full measure of self-government’ i.e. where a foreign power exercises a measure of political or economic control, requires that foreign power to recognise ‘the principle that the interests of the inhabitants of these territories are paramount’, while the UN convention relating to such territories specifically states that:

Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

However, returning to the International Covenant on Civil and Political Rights (ICCPR), it is clear that the draft Withdrawal Agreement is a very blatant breach of the ICCPR, which is legally enforceable in any country which has ratified it – as all EU members states have.

It is therefore possible for anyone to apply for judicial review of the Withdrawal Agreement. However, even if a request for judicial review were refused – because all 28 EU member states have ratified not just the ICCPR itself, but also the First Optional Protocol, a referral can be made directly to the UN Human Rights Committee by any

individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.

As all EU member states are required to collectively agree the Withdrawal Agreement, they become liable when they do so.

I wonder how the people of Belgium or Germany – or for that matter Ireland – will feel about being investigated by the UN Human Rights Committee because of a serious breach of an international human rights convention by the European Union as it sought to retain control over an independent sovereign nation after it left the EU?

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ERG publish Your Right To Know – the case against the Government’s Brexit deal

Four days after the release of the 585-page draft Withdrawal Agreement for the UK’s exit from the European Union, the European Research Group (ERG) of eurosceptic Conservative MPs today publishes a concise guide making the case against the putative deal. In Your Right to Know, the group – chaired by Jacob Rees-Mogg – seeks to put […]

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Four days after the release of the 585-page draft Withdrawal Agreement for the UK’s exit from the European Union, the European Research Group (ERG) of eurosceptic Conservative MPs today publishes a concise guide making the case against the putative deal.

In Your Right to Know, the group – chaired by Jacob Rees-Mogg – seeks to put the case against what Theresa May has agreed with the EU in plain English – and BrexitCentral is exclusively publishing the full text of the 7-page document.

The publication identifies five key areas of concern over the draft Agreement:

  1. The UK would hand over £39 billion of taxpayers’ money with nothing guaranteed in return
  2. The UK would remain a ‘rule taker’ over large areas of EU law
  3. It would lock us in a Customs Union without the ability to leave
  4. It would creates internal borders within the UK, undermining the integrity of the Union
  5. The European Court of Justice would remain in control of the agreement and large areas of EU law directly effective in the UK

The ERG conclude:

“The combination of these measures means the United Kingdom will have not left the European Union but will instead be ‘half in and half out’. This will mean that we will become a ‘vassal state’ many of whose laws will have been created abroad and over which we have no influence. This is completely against the spirit of the 2017 referendum in which 17.4 million UK citizens voted to leave the European Union.”

You can read the document for yourself below or by clicking here to read it as a pdf.

Your-Right-to-Know

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Theresa May’s Brexit deal does not deliver what people voted for at the referendum

The Prime Minister says that the draft Withdrawal Agreement delivers what people voted for in the referendum, but it does not. The Government has said the UK will come out of the Customs Union. The draft Agreement, however, would bind us by treaty to the rules of a Customs Union that would be set by […]

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The Prime Minister says that the draft Withdrawal Agreement delivers what people voted for in the referendum, but it does not.

The Government has said the UK will come out of the Customs Union. The draft Agreement, however, would bind us by treaty to the rules of a Customs Union that would be set by the EU and that we could not change and could not leave. It is hard to see how anyone who supported Leave in the referendum can then support a proposal that commits the UK to remain permanently under EU rules.

The Government concedes in the draft agreement that Northern Ireland will be under greater EU control than the rest of the UK. The Prime Minister has repeatedly – and correctly – said she would not accept this outcome, but now has. The Government has also said that “nothing is agreed until everything is agreed” but the draft deal commits the UK to give £39 billion to the EU without securing meaningful agreement on any future trading relationship.

It is hard to see how the deal can win support among Leave voters, many of whom elected the Government last year. It is also hard to see how it genuinely represents the best available outcome for the UK.

When people voted Leave, they did so because they wanted to become an independent country like many others. This deal has much in it to please Brussels and major international businesses, but it risks letting down the hopes of people who thought we would end the control of the UK by Brussels and take back control for ourselves.

The crux of the problem remains the backstop which ultimately, regardless of the merits or otherwise of the rest of the agreement, is very hard to reconcile with our national interest. In the longer term the fear must be that it is politically unworkable to bind any country in perpetuity to an arrangement no-one voted for, that divides the UK, and that many would feel legitimately they rejected in the referendum.

Dominic Raab has spoken up for all those who backed Brexit, and for that he must be applauded.

The Government and Cabinet now need to think very hard about the implications of this agreement and be confident that they are not making a fundamental constitutional and political error – one that could have consequences for the ability of this country to overcome divisions and succeed in the years ahead.

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There are some nasty surprises in the smallprint of Theresa May’s Brexit deal

Having written briefings for frontbenchers on the treaties of Amsterdam and Nice, and having wandered in lonely eurosceptic errantry the corridors of Brussels during the Convention on the Future of Europe, it is, I suppose, refreshing to sit down and analyse a document whose intention is finally to take the country in the other direction, […]

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Having written briefings for frontbenchers on the treaties of Amsterdam and Nice, and having wandered in lonely eurosceptic errantry the corridors of Brussels during the Convention on the Future of Europe, it is, I suppose, refreshing to sit down and analyse a document whose intention is finally to take the country in the other direction, away from the EU orbit.

It is, however, a great shame that the designers failed to fill up the tank with petrol.

I’ve spent some hours scouting the text of the draft Withdrawal Agreement and Outline Political Declaration. As an initial review, it is of course impossible to delve into the minutiae of case law that apply to any single line and cross reference all of the cited directives, but as an exercise in reconnaissance at least you can over a few hours get a reasonable map picture of what is going on.

The problem is not singular, but a mosaic of issues.

There are some real shockers in there, such as over fisheries. There are serious ambiguities and strategic vagueries, such as over Justice and Home Affairs and Defence. There are also huge gaps – particularly over budgetary commitments and the assets which I fear have been simply written off.

I’ve not even dared dig into the Northern Ireland small print – which will take days to properly unravel. The ‘cover page’ that is the “Joint Statement” makes a heck of an admission to kick off with: “Neither the Union nor the United Kingdom wish to see the backstop enter into force.” I haven’t worked out how much share of the total word count and pagination is taken up by the Northern Ireland arrangement, but the percentage it comprises of the whole deal is telling in many ways. It’s certainly an indictment of those who led the focus and obsession of the negotiations to that pass, largely to the detriment of everything else (Although, paradoxically, for other states seeking in turn to replicate Brexit, they might see their own routes as being far more appealing now on reflecting that their own border politics is simpler).

Now, a lot of eurosceptics could buy into this deal on the assumption, despite the flaws, that landfall is near. But this is predicated upon the assumption that a transition agreement does what it says on the label – it transits.

That approach works for a time. Until you hit that most remarkable of paragraphs. It’s what you might call the Odysseus ClauseIt’s Article 132 – where the drafters can barely commit to finally fully leaving the EU this centuryHere’s what it says:

“Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period up to [31 December 20XX].”

That’s a bit of a variable.

Given the EU preference to plan around MAGP (multi year) timeframes, that could conceptually see a Brexit date of 2098. But there’s no reason why they might tweak the financial admin and go the whole hog. Why not have full Brexit on the first day of the 22nd century? That would be enough planning time for the CBI at least. T+Cs apply as the CAP falls away, but budgetary elements get recalibrated and most of the rest stays glued onto the UK.

But this variable is a massive trap. The drafters have not even bothered to put in 202X to make a point that they expect transition to take a decade or so at most. So all the problems with the transitional deal, accepted because they are seen as transitional, could quite plausibly turn out to be permanent – or at least, long lasting enough to cause serious damage to our economy, to our democracy, and to our national credibility.

The only real safeguard here is that the extension time limit needs to be sorted out by December 2020, making it a domestic political issue. Given what’s happened over the past two years – and indeed in the last two weeks – that is slender reassurance against an unknown future Prime Minister, still failing to grapple with a Northern Ireland customs union alternative, who has lost his or her key leverage on the EU to play ball, foisting some last minute arrangement on the country and locking the UK into a permanent non-transition transition.

So much for the big picture. Given there are hundreds of pages of text, it may help if I briefly here outline some of the other crags and marshes ready to snare the unwary.

OUTLINE POLITICAL RELATIONSHIP

This is what we hope to end up with. Maybe.  The promised sunlit uplands.  But it only constitutes seven pages – 1.2% of the transition deal. This is a bit B+Q as pegs go, and a rather slender thing to hang £39 billion on.

The UK is locked into the ECHR, so bang goes that long-vaunted Conservative reform. You may remember that Theresa May was reported as advocating repatriating ultimate jurisdiction to UK judges in 2015, with Michael Gove continuing preparatory work undertaken by Chris Grayling on the issue and generating a new Bill of Rights and Responsibilities. Gove’s proposals were, incidentally, supported by a certain Mr Raab.

Then there is the dichotomy of ambition. I’m not sure that if you have “deep regulatory and customs cooperation” and a “single customs territory” you are necessarily going to end up with a model Free Trade Agreement. “Equivalence assessments” are to be run – allowing for the prospect, but not the guarantee, of mutual recognition and divergence. This would be a big win if achieved, but the wording allows for just a couple of minor ones to happen. That absolutely leaves the prospect of the end deal being one that sees the UK in a fax democracy version of a Regulatory Union, and probably in a form of Customs Union. Replacing the Northern Irish backstop is an “intention” to be ‘recalled’, rather than a stated pledged target within a timeframe.

The assertion is made that the UK will become an independent coastal state (thus with control over its own waters) – but without defining what is meant by future shared stocks, leaving the UK’s territorial waters on the table. There is also no clarity on the intended mechanism for actually managing them. This is a bit of an issue as it appears to concede future arrangements will freely give foreign trawlers quota shares of what is a UK national asset.

It appears to concede there will be a long term role for the Court of Justice of the Europan Union (CJEU) in UK participation on JHA issues.

On Defence again, the long term ambition is “Collaboration on relevant current and future projects of the European Defence Agency through an Administrative Arrangement, participation in European Defence Fund supported projects, and collaboration […] […] in Permanent Structured Cooperation projects where invited on an exceptional basis, under the conditions in Union law.”

So not exactly clear blue water here, in an area where in the past few days alone we have seen President Macron and Chancellor Merkel waxing lyrical on EU military aggregation. Meanwhile, we see a pledge to participate EU’s Civil Protection Mechanism, rather than the counterpart UN scheme.

The drafters might usefully have inserted a few caveats into the ambition to build structures that include “the possibility for specific governance arrangements in individual areas”, unless you want to rebuild a mini-EU Mk 2.

In summary, I’m not sure how much of this couldn’t have been written in the summer of 2016. There are some good individual ambitions, but they aren’t locked in. The consistency of the guarantee is sadly more porridge than cement – and heavily dependent on the good faith and generosity of the other party.

As to how that interrelates with the short Joint Statement – well, again, there’s a profound lack of certainty over the extent to which the future deal will require the UK to copycat and suck up future EU regulations, rather than coming to a deal that mutually recognising each others’. I fear Sabine Weyand had a point. Nor are we necessarily given much confidence in the peculiar ending:

“Negotiations on the full Political Declaration continue, and the negotiators are determined to reach a successful conclusion by the end of November.”

We can’t even be sure that the document we have in front of us now is actually the end trade deal sketch outline.

NATIONAL PARLIAMENTS

One suspects that MPs of all parties will find this section ‘challenging’. Article 128 (A128) means that MPs will get sent EU green and white papers. However, there is a big gap here. MPs won’t be able to complain about breaches of subsidiarity – they’ll just have to lump it. They won’t be able to suggest proposals. They won’t be on the circulation list for Council agendas. Or Court of Auditors reports.

If this and the protocol is as I read it, in effect what this is doing is blindsiding MPs to future decision-making even more. And right now, MPs are hardly in the loop (some proposals on how to fix that can be found here; but few are deployable in this framework).

It is not difficult to anticipate a lot of cross-party annoyance at that. Even the authorisation for UK experts to attend if necessary reads grudgingly – if “the presence of the United Kingdom is necessary and in the interest of the Union”, and even then like naughty schoolchildren they turn up, wait outside, get called in, and will then be booted out – a process which while administratively understandable hardly entails stylish agenda management for third parties. And of course they don’t get a vote, so they can just be ignored anyhow

THE COMMON FISHERIES POLICY

Under A130 of the transition deal, the UK is merely consulted about the management of the Common Fisheries Policy (CFP). It gets to supply comments.

The UK does not, however, regain control of its fisheries during transition. This is despite this being the default under international law (and specifically, the United Nations Convention on the Law of the Sea i.e. UNCLOS).

The only interpretation arising from this must be that fishermen’s interests here were bartered away. For what? The answer might be informative – as would knowing if DEFRA was ever actually informed.

As fishing campaigners point out, since the UK does not regain management of its assets, stocks can be bartered to the point of pillaging by Council members without the UK being even now in the room. This is as bad a stitch-up as when the CFP was set up, ironically, to capture the assets of the North Sea states applying to join in 1973. At least then the Dutch had the grace to feel bad about it.

FRAUD

It is something of a small positive that the EU’s anti-fraud unit OLAF gets a mention. It will still be UK taxpayers’ money that’s at stake. However, there is no reference, even in marginal papers, to resolving ongoing cases involving whistleblowers. This is an egregious omission, even if it had been slipped into a footnote of one of the annexes. Here’s why.

AGENCIES

The moves of EU agencies based in the UK out of this country, referenced in A119, have long been touted and indeed the Medicines Agency move made major headlines. For reference, the Galileo site move was announced back in January.

What is seemingly absent here is any commitment to radically pare back on the UK’s entanglement with the astonishing array of these Euroquangos, most of which the UK can disassociate itself from, and most of the remainder from which it can remain a detached associate. Background on what an aspirational change could have entailed can be found here.

FREEDOM OF MOVEMENT

No doubt a lot of analysis will focus on this, so we will confine ourselves to just a preliminary observation or two.

Article 21 (A21) cross-references the 2004 directive for the safeguard system, for people to legally challenge being deported. A15 of that references a later A31 on judicial review. Presumably, therefore, UK courts during transition will still need to base their judgements on not only past but also emerging ECJ case law.

A22 provides for family rights, so relatives of those with residency rights also have work rights. No doubt at some point the statistics will arise on what that means for potential figures for ongoing visa-free access to the UK labour market – they may be very significant and have an impact on long-term immigration targets, and with it visa allocations.

ENVIRONMENTAL PROTECTION

This section sets out ambitions for common rules for emissions, public participation, sea life, global warming and a big list of similar policies. Astonishingly, this is supposedly done “with the aim of ensuring the proper functioning of the single customs territory”.

This is perhaps the most brazen element of treaty deception I have seen outside of Soviet practices. The Commission, and indeed both sides, should at least be honest about it: this section is about making sure the UK doesn’t become more competitive than the EU.

Surely if a bad law costs UK businesses a packet without providing a demonstrable social benefit, it has no reason to be on the statute book? I would challenge the reader, the next time they are in a room with someone from the CBI on a panel, to ask them which laws they think are unnecessary and which they’d like to repeal. It may get them thinking about the consequences of not having that option. Or at least get them to have an open debate about the merits of having policy based on the Precautionary Principle (which sits on p357 of the text).

Personally, I’m not entirely sure that citing the purported effectiveness of the carbon trading scheme as a target to aim for (p358) is going to be uncontentious as a concept either. It certainly sets an interesting bar.

INTELLECTUAL PROPERTY

Article 54.2 asserts that geographical indicators (such as that old favourite example, Parma ham) will be respected. A more recent introduction to the EU lexicon, “traditional term for wine”, even gets several mentions – it’s not difficult to see which countries this is aimed at buying off. One suspects this has been cheaply sold.

It is both notable and symbolic that EU termination of a listing automatically triggers a UK one. A peculiar caveat does allow divergence, though one suspects applying this will be problematic, and the clause will prove contentious if another Feta dispute arises and the British Government tries to save its businesses from fresh repackaging costs by claiming it doesn’t affect us as ‘we’re not Greek’.

IMPLEMENTATION

Article 4 (A4) requires the UK to ensure compliance with EU rules. Parliament is required to pass laws to ensure public authorities and judges follow EU rules during transition – which, as we have seen, will be of elastic duration.

It means following ECJ case law and “concepts or provisions thereof” and UK judges applying “due regard” to this. We might well counsel against anyone relying on a UK judge testing the prospect of divergence. Article 162 even gives the Commission the right to intervene and send legal opinions to judges, when it doesn’t want to turn up in person.

The Luxembourg Court’s role remains paramount. Article 86 provides for continued jurisdiction during transition. New cases will still come under CJEU procedures in the meantime. And A87 asserts CJEU supremacy over not only UK judges but over the UK Government transposing its EU obligations during transition – and four years after it.

Added to that is Article 5, which puts into the script a good faith clause. It’s precisely this principle that has been encouraging Whitehall not to cause a nuisance of itself to get the best deal. It might be recalled that the principle of “sincere cooperation” is somewhat variably applied across governments, and indeed by the EU against ones with which they have had issues (not least the Austrians, Greeks and Italians, down to working on removing premiers). As a ‘rule of law’ state, however, by contrast we can expect the UK to pursue it more rigorously to a self-defeating level. For precedent here, one might reflect on how the UK was treated over the Health and Safety get-around for the Social Chapter opt-out, or the Disaster Clause bail out to tap the Treasury for money for Greece.

The dispute appeal process is always a pointer on how much an arrangement is intergovernmental or supranational. Article 168 keeps any disputes in house, unlike other trade deals where you can appeal to neutral third party arbitration – like a WTO panel. Instead, any dispute in the arbitration panel on interpreting what the EU precedent says goes before the CJEU judges under A174. The decision is binding.

PROPAGANDA

This becomes more of an issue, the greater the prospect of the UK getting jammed into transition.  Article 37 not only legally authorises, but encourages, publicity campaigns. While it will be helpful to ensure that people know what their rights and obligations are, the track record of what happens in EU PR budgets is atrocious. Here’s why historically, and why it is an issue today.

DEFENCE AND INTERNATIONAL AFFAIRS

EU Defence policy is actually a very complex area, much of which is ongoing along several parallel streams and off the radar. For deep background, the reader is encouraged to look at a range of papers produced by Veteran for Britain.

The UK has taken a step back from the more blatant and obvious elements of EU defence integration, particularly with respect to unit integration. These texts in this regard are problematic, as they still provide scope over the long term for forms of UK affiliation, which will have a negative impact on relations with NATO and the US. As a consequence, the transition agreement carries additional baggage, since it anticipates over the immediate term the UK will not engage in any significant EU operation justifying it taking an operational leadership role. Consequently, an extended transition deal presents the peculiar prospect – which obviously needs to be avoided – of the UK providing a large share of troops or assets without being able to provide a commander or sufficient input into deployment policy.

But this is a marginal risk in comparison with the core problem. Under the transition arrangements, the UK continues to be institutionally associated with the key EU Defence agencies, which are now engaged in accelerating moves towards a Common EU Defence. The nature, limits and safeguards in a number of areas are ill-defined. In the longer term plan, there is not even a clear directive to make a clean break after the end of transition, so the UK does not achieve a guaranteed escape momentum.

Perhaps most problematic, and not even considered in the draft, are the treaty elements covering trade risk providing a back door for the EU as it develops a Common Defence Industrial Strategy. The UK, moreover, will remain associated with the core institution behind Defence Integration, the EDA.

On Cyprus and the Sovereign Base Areas (SBAs), anyone familiar with them can see it makes perfect sense and is uncontroversial to keep them in a Customs Union with the Republic of Cyprus. For instance, it is a bit of a pointer that their currency is the euro. That said, the wording on p483 and the derogation on p484 may need tightening with respect to “all goods intended for use in the Sovereign Base Areas”, since some overly officious Commission desk warrior might take a burdensome interest in RAF inventories. It might also be interesting to learn what assessment has been made of estimated duties that might now fall to the MoD, and which would be payable to Cyprus, under Article 4.2 (p487).

I also note the inclusion of a readmission clause on p490 for asylum seekers who make it to the SBAs and who don’t want to claim asylum in RoC. While this has been tested latterly in the courts, the result has not been favourable to UK interests or indeed one suspects general SBA management, and this was an opportunity to deter migrants risking their lives and targeting landfall there.

Finally here, on international affairs, under Article 129, the UK is bound to avoid actions “likely to be prejudicial to the Union’s interests” in any international organisation, agency, conference or forum. How is that to be judged?

JUSTICE AND HOME AFFAIRS (JHA)

It’s worth remembering before we look at this section that the Home Office has a long track record of being far more keen on signing up than its fellow opt-out/opt-in state, Denmark. For some dated but salutary statistics, see here.

Given past policy and attitudes within the Home Office (and of a past Home Secretary), it came as no real surprise that the Chequers strategy saw the development of four pillars of cooperation, one of which would be JHA. Consequently, there is a list of agreements included, including the European Arrest Warrant, where the UK will stay signed up, but which have caused serious political issues in the past.

The question again here must arise as to whether, in its enthusiasm to maintain bilateral agreements that the other side were even more keen to retain, the Cabinet Office has too cheaply sold a prize, at negotiating cost elsewhere.

Thoughtfully, and perhaps with an eye to a long-term transition term, the drafters have inserted where to post the bill for the UK’s IT and admin access.

BUDGET

For all its contention and controversy, the £39 billion is remarkably translucent.

Quite where this leaves what is styled in the Recitals (the opening section of the draft) as the “single financial settlement” is very much an open question – and a critically important one. There is perhaps good reason for this, not least the apparent decision to write off the UK’s share of EU assets.

The European Parliament’s art collection is abominable. But properly speaking on budget share, the UK owns a tenth of it. That applies equally to the wine reserve, the official bicycles, one of the nine floors in the Council building, a proportion of the legations occupied by the External Action Service and its assorted vehicles, and so on.

But there is little reference to assets as opposed to several references to liabilities and debts.

There is RAL, Reste à Liquider, meaning the long-term liabilities that have been signed off by an overpledging Commission and MEPs. This, incidentally, is heavily in areas (transport, Social funding) where the UK gets half the share it is statistically due, so logically the UK might have argued it should consider itself bound by half the liabilities (it could at least have made a negotiating play of it – there are no signs it did). Article 140 covers outstanding commitments (in Section 3a). The UK is liable. And the EU works the share out.

The list of assets provided in Article 142 assets is a very partial list, and only appears to have been put in as they come with associated liabilities that the EU is keen to share. At first sight, for example, it looks like the UK assumes ownership of – but also the disposal liabilities of – Joint Research Centre nuclear assets – this is hardly a generous Commission concession, as it is a bit difficult to stack a nuclear reactor on the back of a truck and move it away. Sadly, by the time we get to Annex V (p547) we learn that the UK gets the Euratom assets in the UK, but has to pay for them.

Again, the UK share of EU pension liabilities will be unfair, given the very low percentage share of UK staff in institutions (see here, for example). No doubt assuming a budget-based rather than staff-based share of liabilities was inevitable, but it would be nice to know that the UK made the point and tried.

As for anyone potentially claiming that getting the assets back from the winding up of the ECSC (Article 145) and from UK money held at the EIB (A146), the slight win is getting the money from the latter back in five years and not, say, thirty, but again it’s a location where the UK has paid in and only got half its share back.

There’s one miniscule glimmer in this fog. While it is chicken feed in comparison, someone at the Treasury seems to have remembered that (Article 149) the Bank of England has contributed €55.5m of capital subscription to the ECB. We get that back.

As for future payments, Article 136.1 rings alarm bells about the UK’s long term financial contributions, including the rebate, if transition is extended. The applicable contribution will be subject at any time to change, presumably of course under the new rules with the UK not in the room. Nor is there any express guarantee for the Rebate, which leaves it open to challenge. As for the general budget itself and thus the UK contribution, the track record shows it only ever faces the prospect of being increased. After all, it is practically the European Parliament’s mission statement, asking for more money to manage.

Taken as a whole it really does look as if the Cabinet Office negotiating team, except for one Treasury desk officer, didn’t fight the money corner hard.

CONCLUSION

Taken together, this is, I’m afraid, a bad deal. I wish it were otherwise. As a temporary structure it might work to a point – though with clear structural flaws and damage – if it had a clear dismantling date. But it’s a pontoon bridge that’s been put up on a flood plain.

We might usefully conclude by turning to what Lurcio would call “The Prologue”. The Recitals element contains a couple of useful pointers here, not least in the assertion that “this Agreement is founded on an overall balance of benefits, rights and obligations for the Union and the United Kingdom” – a warning if ever there was one that no one in the UK, be they judge or elected politician, should mistake this text for something other than written in stone.

It is perhaps an appropriate situation that the drafters didn’t appear to have had the time, or even reach the basic level of agreement, to come up with a snappy name for the “JPD” (Joint Political Declaration). Its title in the text was left to be filled in later. No doubt that will now leave plenty of scope for inventive and colourful suggestions by MPs who will now get the chance to study the text in depth.

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As humiliations go, accepting this Brexit deal would be complete and unendurable

After the end, the beginning. The long months of talks in Brussels have brought forth a draft withdrawal agreement to leave the European Union – all 585 pages of it. Amid the drama, the essential themes are clear. There will be a backstop agreement to the deal without an end date and with no ability for […]

The post As humiliations go, accepting this Brexit deal would be complete and unendurable appeared first on BrexitCentral.

After the end, the beginning. The long months of talks in Brussels have brought forth a draft withdrawal agreement to leave the European Union – all 585 pages of it. Amid the drama, the essential themes are clear. There will be a backstop agreement to the deal without an end date and with no ability for the UK to extricate ourselves without the consent of a third party. And there will be a grave threat to the Union.

Northern Ireland will find itself in a different regulatory regime to the rest of our country – to use the analogy that is being deployed about the “backstop within a backstop”, it will be in the deep end of the swimming pool while the rest of us are only paddling up to our knees. This represents gold dust for the Scottish Nationalists, who will seize on a different arrangement for one part of the country to demand a separate arrangement for Scotland.

We will be asked to sign up to all this, and hand over £39 thousand million, in exchange for a flimsy 15-page “political declaration” about the hoped-for trade relationship that would lie beyond this, should we ever be able to escape. That political declaration will be drafted to mean all things to all men, but will lead inexorably to the ultra-high alignment agreed at Chequers in July rather than the Canada-style free trade deal we should be aiming for. There will be so-called “non-regression clauses” to ensure the UK cannot out-compete the EU. This would scupper our hopes of being a global trading titan and bind us into EU manufacturing rules in perpetuity. As humiliations go, this would be complete and unendurable. The Prime Minister will have unerringly delivered a deal that delivers none of the benefits of leaving the EU and none of the benefits of remaining.

85 years ago, Churchill warned: 

“All down the centuries, one peculiarity of the English people has cost them dear. We have always thrown away after a victory the greater part of the advantages we have gained in the struggle. The worst difficulties from which we suffer do not come from without. They come from within… from the mood of unwarrantable self-abasement into which we have been cast by a powerful section of our own intellectuals. They come from the acceptance of defeatist doctrines by a large proportion of our politicians… Nothing can save England if she will not save herself. If we lose faith in ourselves, in our capacity to guide and govern, if we lose our will to live, then indeed our story is told.” 

Such will be the legacy of Brexit if this deal goes through. The brave decision of the British people to leave the European Union, taken in the largest democratic vote in our history, will have been reduced in two years to a shameful and squalid surrender. This must be resisted at all costs, and I have little doubt that the House of Commons will indeed defeat the deal should matters go that far.

The burning question will then arise: what next?

A deal may still be salvageable, based around the broad and generous offer made by European Council President Donald Tusk in March. This would be an advanced free trade agreement, encompassing services and covering all sectors with zero tariffs and no quantitative limitations. Alongside this the UK would offer deep security cooperation and mutual recognition of practical issues from aviation regulations to driving licences. The EU’s offer, of course, was made to Great Britain and not the whole of the UK. The EU was not prepared to extend its offer to Northern Ireland – hence so much of the tortuous negotiation that has ensued.

But there is a way to deliver such an agreement, in the form of a free-standing treaty on trade facilitation between the UK and Ireland to be negotiated in parallel to the wider negotiations, as it surely could be. Such a treaty would deliver an invisible border that would satisfy WTO rules and could be referenced in the wider UK-EU free trade agreement. There would be no hard border and no need for a backstop beyond this.

This seems to me to represent a deal that could secure sufficient votes to satisfy Brussels and pass the House of Commons. In tandem with this, an immense national effort must be set in motion so that the UK Government and businesses prepare themselves day and night between now and 29th March next year for a no-deal scenario. Every moment that passes without such an effort is a moment wasted, and weakens our hand in securing the good Brexit deal that our country expects and deserves.

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