The Deal in Detail 6): Law and Constitution

1 Jan

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford.

In his foreword to the Government’s explanation of the UK-EU Trade and Cooperation Agreement, the Prime Minister says “the agreement provides for the UK to take back control of our laws, affording no role for EU law and no jurisdiction for the European Court of Justice. The only laws we will have to obey are the ones made by the Parliament we elect.”

Strictly, no agreement with the EU has ever been necessary for the UK to take back control of its laws, but the Prime Minister’s point is that nothing in this new agreement requires the UK to conform to EU law or otherwise to be subject to the jurisdiction of the European Court of Justice (ECJ). The truth of this claim is obviously important. So too is the question of whether, even if the ECJ’s jurisdiction is brought to an end, the agreement might (inadvertently) compound the problem of the European Court of Human Rights (ECtHR), strengthening its jurisdiction over the UK by tying it to free trade with the EU.

Like the Withdrawal Agreement, the UK-EU Trade and Cooperation Agreement, when ratified, will be an international treaty between the UK and the EU. Both agreements make provision for dispute resolution, and in neither agreement is the ECJ the arbiter, for the obvious reason that the ECJ is the EU’s own court.

However, parts of the Withdrawal Agreement, especially the Protocol on Ireland/Northern Ireland, do make provision for EU law to continue to apply, in relation to which the ECJ has a continuing role. In adopting the Withdrawal Agreement, the UK agreed to legislate to give some of the agreement’s terms domestic legal force, including priority over other legislation.

There is no such requirement in the UK-EU Trade and Cooperation Agreement, and the agreement does not import concepts of EU law or otherwise make provision for the UK to be subject to ECJ rule. The only limited exception concerns continuing UK participation in EU programmes, such as Horizon, in relation to which the ECJ obviously has a role. However, this is quite different from the UK agreeing to follow EU law and agreeing to be subject to the ECJ’s jurisdiction.

The Agreement creates a complex network of institutions that will manage relations between the UK and the EU across various fields. In the event of disputes, different options will be open, depending on the context, including third-party arbitration. In some cases, the UK and the EU may be free to suspend performance of obligations in retaliation to breaches. The UK and the EU will thus enforce the agreement by way of arbitration and diplomacy. The EU cannot enforce the agreement against the UK by way of the ECJ, which has no relevant jurisdiction.

At various points during the negotiations, the EU has sought from the UK an undertaking that it would remain a member state of the ECHR and would agree not to amend or repeal the Human Rights Act 1998. This was an obviously unreasonable negotiating aim. Happily, the Agreement contains no such undertaking. The point might seem academic because it is Government policy for the UK to remain party to the ECHR. However, the UK’s treaty right to leave the ECHR is an important protection. It would be open to a successive government, led by a latter-day Clement Attlee for example, to choose to leave. While the Agreement is to some extent conditional on mutual human rights assurances, they fall well short of an undertaking not to denounce the ECHR and thus to protect human rights by other (better) means.

In the opening words of the preamble to the Agreement, the UK and the EU reaffirm “their commitment to democratic principles, to the rule of law, to human rights, to countering proliferation of weapons of mass destruction and to the fight against climate change, which constitute essential elements of this and supplementing agreements”.

Part Six, which concerns dispute resolution, again confirms that these are “essential elements” of the agreement. The UK and the EU agree to continue to uphold shared values and principles of democracy, the rule of law and respect for human rights and reaffirm their respect for the Universal Declaration of Human Rights (UDHR) and the international human rights treaties to which they are parties. The UK is of course a party to the ECHR, but the agreement does not mention the ECHR at this point (the EU has a treaty commitment to join the ECHR, but the ECJ has frustrated its fulfilment; EU member states are parties to the ECHR). Respect for treaties to which one is a party is consistent with maintaining a right to leave in future.

Part Six provides that either the UK or the EU may terminate or suspend the operation of the Agreement if there has been “a serious and substantial failure” by the other party to fulfil any of the obligations that are essential elements of the Agreement. However, the agreement specifies that any measures adopted would have to be proportionate and for a failure to be serious and substantial failure, “its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions”.

The Agreement specifies that defeating the object and purpose of the Paris Agreement would count, but there is no mention of leaving the ECHR. The omission is justified, because denouncing the ECHR would not itself be a failure of respect for human rights. On the contrary, it might well be a decision that human rights, democracy and the rule of law are better realised by a mature parliamentary democracy not subject to the ECHR’s jurisdiction. While the EU might attempt to argue that denouncing the ECHR was a breach of the Agreement, the argument would be weak indeed. It would also be superfluous because the EU, like the UK, is free to terminate the entire Agreement provided it gives twelve months’ notice.

Part Three of the Agreement, which concerns law enforcement and judicial cooperation in criminal matters, is somewhat more specific. The Agreement notes that the basis for cooperation is that the UK, the EU, and EU member states have long respected democracy, the rule of law and the protection of human rights, including rights set out in the UDHR and the ECHR, as well as the importance of giving domestic effect to the ECHR.

The Agreement disavows any intention to modify existing obligations to respect fundamental rights, especially those affirmed in the ECHR or, on the part of the EU and its member states, in the Charter of Fundamental Rights. Part Three permits the UK or the EU to terminate this part of the Agreement by giving nine months’ notice (other parts of the Agreement also provide for partial termination on nine months’ notice).

It also provides for earlier termination if the reason for termination is that the UK or an EU member state has denounced the ECHR, , specifying that in this case this part shall case to have effect from the date on which denunciation becomes effective (which the ECHR provides requires six months’ notice). Denouncing the ECHR would neither breach Part Three nor vitiate a condition on which the continuing application of Part Three depends; instead, the EU would have to choose to exercise its right to terminate.

In ratifying this agreement, the UK will not be undertaking not to withdraw from the ECHR, let alone not to amend or repeal the Human Rights Act. If the UK subsequently exercises its treaty right to leave the ECHR, it will be choosing, like Australia, Canada or New Zealand, to live without an international (regional) human rights court.

Whether to make this choice is an important question of foreign policy, a question with significant constitutional implications. Leaving the ECHR would not be a breach of the Agreement. It would not justify suspension or termination of agreed terms of trade. It might be a reason for the EU to terminate law enforcement and judicial cooperation, but that would be a choice for the EU to make and the EU, like the UK, is in any case free to terminate the Agreement. If the UK were to leave the ECHR, it would be prudent to provide assurances to the EU that there would be no relevant change in the protection of liberty within domestic law. But whether to leave the ECHR, and how to protect human rights, would remain for the UK freely to decide.

This is the sixth of a series of pieces from Policy Exchange looking at specific issues that arise from the Brexit trade deal.

Jacob Rees-Mogg: Now we will have what the British people really wanted – tariff and quota-free trade with the EU

30 Dec

Jacob Rees-Mogg is Leader of the House of Commons, and is MP for North East Somerset.

The real surprise and significance of the Free Trade Agreement with the European Union is its normality. It is not in itself the reclamation of sovereignty, which happened in January but the expression of that reclamation.  That is why Parliament is being recalled, for although the agreement is satisfactorily comprehensive, it is the type of deal this country could do with other sovereign nations or trading partnerships.

This has been achieved because of the negotiating panache of David Frost and Oliver Lewis, who matched Michel Barnier for capability. Many eurosceptics have a striking admiration for Barnier, who epitomises Gallic sophistication, and who had successfully outfoxed previous British negotiators. Regardless of their abilities, they could not have achieved the right outcome without the backbone of the Prime Minister, making it clear throughout that he would walk away from a bad deal.

The United Kingdom Internal Market Act emphasised this point. The British were reclaiming their sovereignty, and were not interested in the typical type of international fudge that could have potentially overturned the voters’ decision. For in truth that is where the real strength and courage lay, in 2015 by voting for a referendum, in 2016 by voting to leave, in 2017 by trusting the vacuous promises of both parties that Brexit meant Brexit, and by the resounding result in 2019, the electorate ignored all the doom-mongering to demand, request and require its right. As of Churchill, so perhaps of Johnson: “it was the nation …that had the lion’s heart …I had the luck to be called upon to give the roar.”

Thus, this Agreement reflects what the British people repeatedly voted for” a zero tariff, zero quota, free trading agreement with the EU, outside its legal control, unbound from the EU’s treaties and courts. The Prime Minister always said a Canada-style agreement best reflected his ambitions, and this is what he has achieved.

The normality of this deal should not overshadow its landmark status. It is the largest free trade agreement that either the UK or the EU have agreed, and the first ever zero-tariff, zero-quota trade deal that the EU has signed. As with mercy, free trade “blesseth him that give it and him that takes.” For all the talk about punishment, ratchet clauses and defensive interests, this truth guided the Prime Minister and it is embedded in this agreement.

Just like any other free trade agreement, this deal is made up of a number of reciprocal agreements, overseen independently, as a piece of international, rather than European, law. Provisions such as non-regression clauses exist in such agreements across the world. It would be irregular for such a deal where each party did not agree to act in good faith in this way. Far from leaving us in a state of vassalage, this agreement is a great opportunity for regulatory competition, from which Britons and Europeans will benefit.

This is the relationship that the United Kingdom always wanted with Europe. One of understanding and close cooperation, but one in which the United Kingdom is free to follow its own path. The last few decades showed that it was impossible to do so from within the confines of the EU. Now there is a treaty that the British people welcome: not an unaccountable and opaque European Directive, but a foundational agreement that is accountable to Parliament.

From 1st January, the nation’s laws will be made here, in Parliament and interpreted by British courts. They will be free from the oversight of the European Court of Justice, which will have no role to play in either British affairs, nor relationships with the EU and its member states. At the beginning of the year, the EU insisted that European law and the ECJ would apply to our future relationship. This was intolerable. It would have tied the United Kingdom into the EU’s orbit in perpetuity, Le Goulet on steroids.

It restores the opportunity to embrace the opportunities of the open seas, and it is a national responsibility to ensure these opportunities are realised by future generations. With the newly-established Turing Scheme, British students will be able to be in the vanguard of a renewed economic and cultural exploration of the world.

This Agreement opens a great potential future for Britain. It is now in our own hands to forge our own destiny, free to pursue British interests and prosperity in our own way and to build a lasting entente-cordiale with our European friends. This will be far more beneficial for Britain and Europe alike than our increasingly tetchy relationship within the Union.

Along with this opportunity comes accountability; there are no European Directives to hide behind anymore. This is a process which will change Britain for the better, but our responsibilities to the public are greater than ever before. It is up to Parliament and the Government to ensure the fruits of sovereignty are prosperity and liberty to the British people.

Richard Ritchie: Why I believe that Enoch Powell would have supported this Brexit trade deal

29 Dec

Richard Ritchie is Enoch Powell’s archivist and is a former Conservative Parliamentary Candidate. He was BP’s director of UK Political Affairs.

During the twelve days of Christmas, people like to play games in order to pass the time.  One such game this year, for those of a political inclination, might be to guess how the original Brexiteers of the 1970s – especially John Biffen, Richard Body, Ronald Bell, Neil Martin, Enoch Powell and Derek Walker-Smith – would have reacted to Boris Johnson’s deal, were they alive today.

Would they have supported it, or preferred to leave without one?  Since Powell’s writings and speeches on the subject are more extensive than the others, perhaps he is best placed to speak for them all.  But he has no claim to originality or primacy.

Powell was later to the party than some of those listed above, and for a specific economic reason.  As he readily conceded: “I had entered Mr Macmillan’s Cabinet only six months before the veto fell; but I am prepared to confess that in those days I used to argue the case, and answer objections, on purely commercial grounds.”

Indeed, he admitted in 1965 that he was worried by the thought of Britain being “excluded” from “her fastest growing market”.  This was not a fear shared by, for example, Walker-Smith, who identified the political implications of membership far sooner than Powell.  But then, as now, exclusion from the European market was one of the greatest anxieties of those who felt that Britain’s economic future would be bleak outside.  As Alec Douglas-Home put it in 1967: “where do we find the jobs for our people unless we take advantage of an opportunity like this?”

While Powell was always a fervent free trader (although less so as he grew older and more immersed in Ulster politics) he was slower than the earliest Brexiteers to acknowledge the distinction between a customs union – a Zollverein – and a Free Trade area.  As his understanding of this discrepancy grew, so did his support for entry diminish.

Broadly, his free trading instincts were impeccable, albeit defined in their purest form which seem somewhat remote from the provisions of even the freest trade deal today. He never seemed especially exercised over so-called non-tariff barriers, which are now cited as one of the biggest potential weaknesses of the new arrangements.

Ironically, it is today’s criticisms of the deal which make it more probable that Powell would have welcomed it.  Europe’s move towards a Single Market and the reforms of 1992 ended for Powell any pretence that free trade in his understanding of the term had any similarity with the Customs Union enshrined by the European Community.

As he eventually recognised, “The Community is not about free trade; the Community is about perfect internal competition – which is something essentially different.  It is also about common restriction of external trade. There is no such thing as perfect internal competition and common external trade regulation between free nations.”

For this reason, he would have rejected as false the premise that leaving the Single Market is equivalent to reducing the scope of free trade.  He didn’t think we had it anyway, although how he would have answered specific objections over additional administrative expenses and red-tape provoked by new non-tariff restrictions is unclear from his speeches.

Of one thing, however, we can be confident.  He would not have called for a ‘tit-for-tat’ response against the EU’s invisible barriers to trade.  He distinguished between revenue and protective duties, having no objection to the former but rejecting the need for the latter –  because he believed that “one of the beauties of free trade is that it is a ‘a-political’: you do not have to browbeat or overrule anybody else in order to enjoy its blessings for yourself.  It is a game at which, like Patience, one can play”.

He would have argued that EU barriers against UK businesses would in the end hurt them more than us, provided we didn’t reciprocate. In the end, what some perceive as the greatest dangers of the new arrangements are what would have made them acceptable to Powell and most of his fellow Brexiteers of the past.

But of course, for Powell, these points would have been peripheral to what really matters, encapsulated in his assertion that “a political nation which cannot tax itself or make its own laws is a contradiction in terms.”  What would have made this Agreement acceptable to him is that it has succeeded, for the first time, in recovering powers which some thought had been lost permanently.

That does not mean that Great Britain is free from all international constraints. There was an occasion in 1966 when Powell severely criticised the Labour Government for imposing “illegal” import surcharges “which damaged our EFTA partners and severely shook confidence in Britain’s word and in the seriousness of her desire to enter into closer ties with Europe.”  He did not regard international trade agreements as inconsistent with sovereignty, provided Parliament had the right to scrutinise and reject them – but not to unilaterally renege from them, once signed and ratified.  That was another reason why Powell was so opposed Britain’s entry into the European Union – the longer that one was in and ‘absorbed’, the harder and more impractical it became to consider withdrawal.

But it has happened.  Something which the original Brexiteers warned was virtually impossible before entry, but which they demanded once EU membership was a fait accompli, has been achieved.  We have left the jurisdiction of the European Court of Justice – a massive recovery of sovereignty.  We are free of the risks of further political integration in the EU which were ever present so long as we remained a member.

While we may still be affected by the Euro’s vulnerability, we are at least spared the legal obligation to recuse it or those it damages.  We have recovered the right to negotiate our own international trade deals.  We may not have yet fully recovered our ability to deregulate and compete fiscally with Europe, but the fact that financial services fall outside the deal may make it possible for the UK to do just that in what is the most important section of our economy.

Talk of ‘free ports’ and the like suggest an economic direction entirely in accordance with free market principles – but which could equally be reversed should the British people choose a government with different priorities and beliefs.  This safeguard was, too, a fundamental belief in the recovery of sovereignty.

If Powell and his fellow Brexiteers were around now, perhaps they would have preferred leaving without a deal – especially if David Cameron had permitted Whitehall to prepare for Brexit in advance of the referendum, thus avoiding the consequent delay and enabling a new relationship to be formed before a pandemic struck.

But the fact is that Powell once accepted the case for entry on the grounds that exclusion from the European customs union was a danger.  He supported EFTA and other such trade agreements, even though they carried obligations and restraints upon domestic policy.  Given what this deal’ has recovered politically, it is doubtful whether he would have allowed its weaknesses to dissuade him from believing that, finally, the ratchet has been turned back, and Britain is once again a sovereign nation.  He would have supported the deal with a clear conscience.

Stephen Booth: This trade deal delivers both the UK and the EU’s main objectives. It gives us freedom – which comes at a price.

29 Dec

Stephen Booth is Head of the Britain in the World Project at Policy Exchange.

Much of the analysis of the UK-EU Trade and Cooperation Agreement will flow from underlying prejudices. “The UK shouldn’t have left”, “we don’t need a trade deal with the EU”, “the UK should have or could have asked for X or Y”. It is, however, more instructive to assess the deal against the Government’s stated aims and, for that matter, what the EU said it wanted.

Brexit will have economic and geopolitical consequences. But, ultimately, it is a constitutional question for both Brexiteers and Brussels. In the foreword to the UK explainer, the Prime Minister cites “restoring national sovereignty” as the “central purpose of leaving the EU”.

Meanwhile, the EU’s brochure is quick to stress that, even under the new agreement, the UK will lose the benefits of membership. “This will recreate barriers to trade in goods and services and to cross-border mobility and exchanges that have not existed for decades,” it says. In other words, freedom comes at a price.

The past year of negotiations has not simply been an exercise in haggling over the price of UK legal independence from the EU system. At times, it seemed Brussels was simply unwilling to recognise this principle as part of a negotiated settlement. The EU had initially demanded dynamic alignment with EU law, enforced via the European Court of Justice (ECJ). And it demanded a continuation of existing EU fishing rights in UK waters, despite the UK’s departure from the Common Fisheries Policy.

A Brexit government with a significant majority could not have accepted such a deal. Nonetheless, convincing the EU to conclude a deal that does recognise the UK as a “sovereign equal” is a significant achievement for the negotiating team led by David Frost. The agreement is based on international law, there is no role for the European Court of Justice (ECJ) and no requirement for the UK to continue following EU law. Under the terms of the Northern Ireland Protocol, ECJ jurisprudence will continue over some issues in the province. Despite this, there has been a calming of Northern Irish tensions over the issue.

As has been noted before, this negotiation was unique, since it was driven by the desire for separation rather than integration. Therefore, any agreement essentially had to do two things. First, establish the new baseline for the UK-EU economic relationship (or the degree of dislocation) and, second, address how further divergence (or convergence) in the future should be managed.

The deal’s main feature is ensuring there are no tariffs or quotas on goods traded between the UK and the EU, where they meet the relevant rules of origin. This is significant because it is the first time that the EU has agreed a zero-tariff, zero-quota deal with any other trading partner (for example, the EU retains a small number of tariffs on Canadian agricultural exports). Certainly, businesses would have liked more time to adjust to the new relationship, but the deal provides important stability for the sectors most vulnerable to a no deal Brexit, such as agriculture, automotive, aerospace and chemicals.

The UK has secured some simplifications for customs formalities and important provisions for haulage, but there will be new frictions on UK-EU trade. For example, the EU refused to reduce the frequency of checks on food imports and has insisted that some products be certified by EU rather than UK testing bodies. The provisions on services are limited. The cost of doing business with the EU will be increased as a result.

There are several issues that could evolve in future. UK professional qualifications will not be recognised at the outset, but there is a mechanism to do so in the future. Arrangements for personal data and financial services remain dependent on unilateral EU decisions, due to be taken next year, which might provide a basis for further cooperation.

On fishing, a delicate balance has been struck. 25 per cent of EU boats’ fishing quota in UK waters by value will be transferred to the UK fleet, over a period of five-and-a-half years. The Government says this will bring the share of the total catch taken in UK waters by UK vessels to around two thirds. After this period, there will be annual talks on the amount EU boats can catch in UK waters (and vice versa). The UK would then have the right to completely withdraw EU access to UK waters. However, in response, the EU could impose tariffs on fish or other goods exports from the UK. These measures would need to be proportionate to the impact of the loss of access and are subject to arbitration. This means that the annual negotiations from 2026 could yet become a difficult political battleground.

The UK probably gave a little more than it would have liked to. However, the amount of fish caught in UK waters by UK vessels will increase, the UK has maintained tariff- and quota-free access to the EU market where much of the UK catch is sold, and the agreement establishes the principle of the UK’s status as an independent coastal state. It is undoubtedly an improvement on the status quo and, at this point, it is not clear the UK has the capacity to catch all the fish available.

The other major contentious issue throughout the negotiations has been the level-playing field. The agreement is a reasonable solution to satisfy the UK’s demand for regulatory independence and address the EU’s concern that future divergence may result in distortions to trade or investment.

The UK has agreed not to lower its existing standards on employment and the environment or use subsidies to unfairly distort trade. Both sides would also have the right to take countermeasures, such as imposing tariffs, if they believe they are being damaged by future changes to subsidy policy, labour and social policy, or climate and environment policy. As such, any dispute would only concern the effects of any changes to UK legislation, rather than whether UK rules are exactly the same as the EU’s.

This “rebalancing mechanism” has the potential to get messy if it is used frequently. However, crucially, any countermeasures are subject to independent arbitration, which means there would need to be solid justification for any EU tariffs in response to UK divergence. Tariffs cannot be used arbitrarily by the EU for leverage over the UK in the future. Ultimately, a race to the bottom on standards was always likely to be a bigger EU concern in theory than in practice. The reality is that the UK is likely to be equally as ambitious as the EU in many of these areas, such as climate change or animal welfare commitments, and perhaps more so.

In summary, this agreement is a considerable political achievement, because it manages to combine independence from the EU’s regulatory system with a high degree of market access (relative to comparable trade agreements, rather than EU membership). At times, this appeared impossible and, therefore, the UK’s strategy has been vindicated.

The deal recognises that the UK-EU relationship will continue to evolve. There could be future disputes but the deal is likely to provide stability for the next five to ten years when the world will no doubt be different again.

It is equally important that the country can move on and devote its energies to the future, both with regards to domestic policy and international relationships beyond Europe.

This is the first of a new series of pieces by Policy Exchange for Conservative Home looking at the various issues that arise from the Brexit trade deal.

Matt Bevington: Barnier doesn’t need a new mandate to find compromises

9 Dec

Matt Bevington is public policy & foreign affairs analyst at the UK in a Changing Europe.

“The last round of talks finished with Michel Barnier waving around the declaration from last year. Does the Minister agree that he should wave it towards EU leaders and ask them to refine his mandate so that he has more chance of making a deal on state aid and fishing?” Nigel Mills MP, 16 June 2020

“Yes.” Michael Gove

Like many of the arguments around Brexit, those about the EU’s negotiating mandate never seem to go away. On December 8, Paul Goodman reported on this site that the idea was still floating around among Conservative MPs that the EU mandate needed to change to advance negotiations. If only Michel Barnier wasn’t so hamstrung by an unrealistic set of negotiating instructions, the argument goes, real progress could be made.

It is true that the EU mandate makes some demanding asks of the UK. On government subsidies, for instance, it says “The envisaged partnership should ensure the application of Union State aid rules to and in the United Kingdom.” In other words, EU rules on subsidies should apply in the UK in future and, by extension, the European Court of Justice would need to adjudicate those rules.

On fisheries, too, the EU mandate is uncompromising. It says, “the provisions on fisheries should uphold existing reciprocal access conditions, quota shares and the traditional activity of the Union fleet”. It argues that, basically, nothing should change when it comes to fish. EU boats should get the same access and quota as now.

On so-called level playing field issues, the EU mandate, again, demands EU rules be followed in future. It says, “the envisaged agreement should uphold common high standards, and corresponding high standards over time with Union standards as a reference point”. This would apply to a swathe of areas, including labour and environmental standards. The UK and EU would keep in lockstep on these issues over time according to how EU rules developed.

Looking at all this, you might reasonably conclude that such a mandate was incompatible with anything the UK could agree to. It could never agree to follow EU subsidy rules, accept the status quo for fish or promise to keep in lockstep with EU rules on level-playing field standards.

With negotiations now entering their tenth month, and seemingly little prospect of a solution on these issues, surely Barnier should go back to EU governments and ask for a more flexible mandate. Shouldn’t he?

Put simply, no. The fixation on the EU’s negotiating mandate is a red herring.

There are at least four reasons why. First, because it’s not necessary. EU negotiators have already moved away from the EU mandate in crucial areas. They are no longer demanding the UK follow EU state aid rules and they accept that the status quo on fish will not continue. That doesn’t mean these issues have been solved, but it shows that the mandate is far from gospel and plenty flexible already.

Second, because it’s not necessary. EU governments are the ones that gave Barnier his negotiating instructions and it is they who would sign off on any deal. They can decide to make compromises not foreseen in the mandate and even contradict it if they wish because they wrote it. EU governments are not about to sanction themselves for having accepted a deal on different terms to the original mandate.

Third, even if the EU were to try and draw up a new negotiating mandate now, it is such a complex process – involving 27 different governments, each with their own competing interests – there is simply no time to do so. These things take months of internal debate and discussion. Trying to do so mid-negotiation is a recipe for undoing lots of what has already been agreed and going backwards.

EU negotiators and member states are in constant contact at this stage in the talks anyway. If Barnier is not moving, it is because he is being told not to, not simply because of his interpretation of the mandate. Equally, if he is given the green light to move, he will, even if that goes against parts of his original mandate.

It is not completely unheard of for EU negotiating mandates to be changed. For instance, in the EU’s talks with the US, it adopted a new, more limited mandate in 2019 following the failure of the TTIP negotiations. This was because of “difficulties in negotiating mutually acceptable commitments in areas identified as priorities by the Union”, necessitating “a more limited agreement”. Note, though, that the EU did not change its mandate mid-negotiation with the US. It did so once those talks had failed to advance a much more limited agenda.

Fourth, given all that, the EU has no reason to want to change its mandate. Such a move would be tantamount recognition that the initial mandate was a mistake. That would weaken its position in negotiations. Part of the EU’s posture in these talks has been that it is monotonously consistent in its principles and demands. Changing this now would undermine that completely.

The UK itself would not dream of changing its formal negotiating objectives at such a crucial point in the talks. Why would the EU?

One of the reasons politicians in the UK may be so keen to focus on the EU mandate is partly the blame game. If talks fail, it can be pinned on the EU for not being flexible enough in its negotiating instructions. That would be the wrong conclusion.

Ultimately, the EU mandate does not prevent a deal being reached and does not need to be changed to do so. The same goes for the UK’s negotiating objectives. They are a guide for negotiations – and very important – but not a script. Indeed, the EU mandate has already been diverged from in fundamental ways, on state aid and fisheries. There would many explanations for no deal if it happened – either side’s negotiating objectives is not one of them.

Alexander Stafford: The tests that any Johnson Brexit deal must pass

23 Nov

Alexander Stafford is MP for Rother Valley.

Boris Johnson is likely to bring a deal back to the country in the near future. The question is whether this deal will match up to the expectations of the nation – those that propelled him to his landslide electoral success last year.

In my view, the Centre for Brexit Policy has produced the definitive list of tests that the Prime Minister’s Brexit deal will need to pass to be considered a success. These tests are broken down into four main areas: sovereignty, the UK-EU trading relationship, governance, and compliance with the 2019 Conservative Election Manifesto.

The country will never forgive the Conservative Party if we do not uphold the manifesto commitments that led to the storming of the Red Wall. Therefore, it is vital that the Brexit deal that Johnson brings back to the nation will respect the promises we made before the 2019 election.

We must take back control of our laws, borders, money, and fish. We cannot have any part of the UK remaining part of the EU customs union or single market. Nor can we allow the new relationship to be based on EU laws or treaties, rather than free trade or friendly cooperation.

Any deal that will prevent the UK from full control over our trade policy is likewise unacceptable. We must be able to regain our sovereignty and be free to conduct ourselves as a free and independent trading nation. Any constraints or EU control over our decision making, our laws, or our trading arrangements would fly in the face of the freedom that the country voted for. For example, are trade negotiations with other third countries going to be undermined or hindered by the terms of the coming Brexit Deal?

One of the most important challenges will be to have fully removed the UK from the control of the European Union’s legal power – for example, our freedom to provide state aid to industry. Britain cannot be considered a fully independent, sovereign nation if we are still beholden to the European Court of Justice and legally required to apply any aspect of EU law to any part of the UK – especially if it breaks up the internal customs market of the UK. If the Brexit Deal ensures that EU law has ‘direct effect’ and supremacy in UK courts over UK domestic law, including over Acts of Parliament, then it simply is unacceptable.

We know that the Red Wall turned Blue in large part due to our party’s stance on Brexit. We must repay that trust because, if we do not, we risk losing all that we have gained in the region.

Previous polling of Red Wall voters carried out by Savanta ComRes – especially those who switched to the Conservative Party – has shown, if the Conservative Party were not to deliver on its promises to “Get Brexit Done”, to deliver Brexit by the end of 2020, to leave the single market or the customs union, a quarter of Red Wall voters would be less likely to vote Conservative. Reaching the level of our 2019 victory – where we won more votes than any party for 25 years – would likely become unattainable.

Voters would see that, on the most pressing issue of the past 40 years, the Conservative Party was unable to keep its word. But I have ever confidence that we will deliver and finally, fully, free us from the EU.

Martin Howe: Two critical questions Johnson must answer on any EU deal

3 Nov

Martin Howe is a Fellow of the Centre for Brexit Policy.

As a possible EU deal nears, there are two critical questions: will we get back our sovereignty next year; and will the deal be good in trade terms?

Sovereignty

Regaining sovereignty and control is the whole point of Brexit. It is the ability of our Parliament – elected by and answerable to the people – to decide upon the laws of this country, without being dictated to by foreign institutions or foreign courts.

Boris Johnson’s 2019 manifesto could not have been clearer about sovereignty. It’s title was “Get Brexit Done – Unleash Britain’s Potential”. Within, it promised (in bold type): “We will keep the UK out of the single market, out of any form of customs union, and end the role of the European Court of Justice.”

And our future relationship with the EU “will be one that allows us to:

  • Take back control of our laws
  • Take back control of our money
  • Control our own trade policy…”

Commendably, the Prime Minister has kept his manifesto promise not to extend the transition period beyond December 2020. In public at least the UK has firmly resisted the EU’s demands to include sovereignty-threatening clauses in the future relationship agreement (FRA) which are not matched in the EU’s trade treaties with other countries: a penal system of “governance” with ECJ jurisdiction, obligations to retain the Human Rights Act, and “level playing field” and State aid clauses.

But contrary to widespread misconceptions, unless something is positively done to change it, the WA (including its Northern Ireland Protocol) will automatically continue ECJ jurisdiction over the United Kingdom for many years after 2020.

Continuing ECJ jurisdiction

The three most important areas of continuing ECJ jurisdiction will be: “interpreting” the rights of EU citizens in the UK, settling the amounts of the (imprecisely defined) multi-billion pound post-membership payments which the WA obliges the UK to make to the EU, and last but not least, interpreting and enforcing the Northern Ireland Protocol and the EU single market and customs laws which it applies within Ulster.

Under generally-accepted international treaty practice, sovereign States never agree to be bound by the courts of the other treaty party, but will only accept adjudication by neutral bodies.

Now that we have left the EU, the ECJ has ceased to be neutral and has become a wholly foreign court as far as the UK is concerned (we no longer appoint a judge). It is appointed by, and owes its loyalty solely to, the EU and its members. The clauses in the WA giving post-Brexit jurisdiction to the ECJ were one of Theresa May’s most damaging and humiliating capitulations.

No other country has accepted such clauses in a treaty with the EU – not Norway or the other EEA States, not even tiny Andorra or San Marino – except for the desperate former Soviet republics of Ukraine, Georgia and Moldova.

The ECJ has a long track record of “interpreting” treaties by discounting their wording and applying a meaning designed to achieve its policy objective of furthering European integration.

This is why the sloppy wording of the NI Protocol – described by Johnson as “contradictory” – is so dangerous when coupled with binding ECJ interpretation. A clause intended to control state aid to businesses within Northern Ireland who trade across the open border into the EU is so badly drafted that the ECJ will amost certainly interpret it as requiring many businesses in Great Britain to be subject to direct control by the European Commission if they receive government grants or tax reliefs.

And it is likely that the ECJ will interpret the Protocol as requiring customs declarations and up-front EU tariffs on all goods sent from the mainland to Ulster except where the EU gives permission, and as requiring onerous customs and regulatory formalities for goods passing in both directions. This will suit the economic interests of the EU, because by contrast there will be no tariffs or other formalities or barriers on good exported to the Northern Ireland market from anywhere in the EU.

The WA contains a carefully balanced package of rights for EU citizens in the UK and for UK citizens in the EU. These rights should be honoured. But the problem with these one-sided ECJ jurisdiction clauses is that these rights will be subject to arbitrary changes over the years under the guise of “interpretation”, by a body over which the UK has no control and against whose decisions it will have no remedy. This goes equally whether it is damaging and unforeseen extensions to the rights of EU citizens in the UK, or unfair curtailment of the rights of UK nationals in the EU – in either case, the ECJ’s decision will be binding and final.

Pushing back on EU jurisdiction

Refusing to extend the ECJ’s jurisdiction any further under the FRA, while commendable, does not end its continuing jurisdiction under the already ratified WA. But the Government’s UK Internal Market Bill, with its controversial but justified clauses allowing certain parts of the NI Protocol to be over-ridden under UK law, will provide a defence against some of the more damaging aspects of that jurisdiction.

Contrary to the frenzied hysteria of the legal profession and the House of Lords, there are perfectly respectable international law arguments justifying these clauses. The most potent of these arguments is that the EU has failed in its own obligation under the WA to negotiate an FRA with “best endeavours in good faith”. It has refused to offer to the UK terms which are comparable to those in its trade agreements with third countries, and has deliberately exploited negotiation “sequencing” to force its unacceptable demands on the UK against the clock.

However, if a deal is done on the FRA which leaves in place all the ECJ jurisdictions under the WA and the Protocol, these international law arguments become very much more difficult. If we accept the EU’s proffered terms for an FRA, however poor they are, how can we then credibly maintain that the EU has failed to use best endeavours in good faith to conclude an acceptable one? And if the ECJ jurisdictions are left in place, how can the Government then achieve its manifesto pledge to “end the role of the European Court of Justice”?

Is the trade deal worth having?

The trade terms the EU is now offering would be a poor deal for the UK, definitely inferior to (for example) Canada’s EU deal.

The EU has a massive surplus of £95bn per year in goods trade with the UK, with EU exports heavily concentrated in high-tariff sectors, meaning that EU exporters will gain more than double the benefits of UK exporters under a zero tariff deal. The UK is a service-based economy and has a (smaller) surplus in services trade with the EU of £23bn.

The EU wants the zero tariff concession while giving back almost nothing in access for UK services exports, and denying to the UK important benefits it routinely includes in its other trade deals, such as home country certification and wide ‘cumulation of origin’.

Once the EU has pocketed the huge zero tariff concession by the UK while giving very little in return, how will it ever be possible to negotiate something better?

The danger: our birthright for a mess of thin gruel?

There is huge political pressure on the government to reach a deal – any deal – with the EU. That pressure is intensified by Covid. But doing the wrong deal now would have very serious long term consequences – botching Brexit at the last hurdle, instead of getting Brexit done.

I am looking forward to when we no longer have to spend time on Brexit issues because we have restored our sovereignty, and the whole Conservative Party can focus on finding the best way to “Unleash Britain’s Potential”.

A deal which which cements in long-term EU and ECJ jurisdiction over the UK would not allow us to do that. It would be a national and political disaster. We would face hard-to-refute claims from Nigel Farage and a revived Brexit Party, amongst others, that the Tories had breached their manifesto promises and are not to be trusted.

So I am holding firm in my hope that our Government and our negotiators will resist the intense short term pressures, and if they come back with a deal it will be one that restores our sovereignty. . What would be unforgiveable would be to sell the birthright of our independence and sovereignty not for a mess of pottage, but for the watered-down gruel of the trade terms now on offer from the EU.

Daniel Hannan: Voters tend to get some things wrong, but the big things right. So it is with the Internal Market Bill.

16 Sep

Daniel Hannan is a writer and columnist. He was a Conservative MEP from 1999 to 2020, and is now President of the Initiative for Free Trade.

As usual, the public has reacted to Westminster’s hysterics with an amused shrug. Lawyers and diplomats, pundits and politicians, are in a frenzied rage about the Government’s announcement that it might violate the Withdrawal Agreement. In some cases, the rage is confected; but in most, it is genuine.

The country as a whole, though, takes an altogether more relaxed view. Where politicians get bogged down in detail, voters tend to see things impressionistically. They sense – correctly – that international law is protean and often disputed.

Countries are forever being charged with infracting this or that treaty. The EU, for example, is in breach of several trade agreements, ranging from its groundless bans on overseas agricultural produce to its illicit Airbus subsidies. It also frequently violates its own treaties, sometimes on issues of enormous consequence. The eurozone bailouts, for example, were patently illegal, not just in the sense that they had no basis in the European treaties, but in the sense that they were expressly prohibited. No one in Brussels tried to claim otherwise. Rather, they pleaded raison d’état.

So when British voters see Eurocrats fainting like so many affronted Victorian matrons, they just don’t buy it. They know that Brussels has negotiated in a bellicose spirit from the start. They sense the difference in tone between Michel Barnier and negotiators from, say, Australia or Japan, who are uncomplicatedly keen on maximising mutual gains.

Where Labour and a handful of Tories see a violation of international law, most voters see the people who have always backed Brussels doing so once again. No doubt John Major and Tony Blair think of themselves as distinguished elder statesmen cautioning their country against error; but I’m prepared to bet that most people’s reaction will be, “Well, they would say that, wouldn’t they?”

For what it’s worth, I think most of the Bill’s opponents have decent motives. Some, no doubt, are driven by personal rancour, or by a reflexive opposition to anything the Prime Minister does. Some are still sore about Brexit. But many have genuine worries about international law.

I happen to think they are wrong. First, the Bill itself doesn’t violate any laws: it merely creates an emergency mechanism by which the most damaging aspects of the Northern Ireland Protocol can be prevented. Second, the bits that Brussels dislikes would come into effect only if, despite all its promises, the EU failed to agree a trade deal. Third, even if it came to that, there is a strong argument that not taking preventative action would constitute a worse legal breach than taking it – in other words, that suspending some aspects of the Protocol would be a lesser infraction than violating the principle, affirmed both in the Belfast Agreement and in the Protocol itself, that Northern Ireland’s status cannot change without its consent.

This last point barely featured in the debates, but it strikes me as elemental. If there is a clash between legal obligations – if, that is, we can only apply aspects of the Protocol by breaking other laws, such as Article VI of the 1801 Act of Union – then we should give  priority to our domestic constitutional order. This is not some Powellite assertion of British exceptionalism. It is a widely-shared principle upheld by, among others, the EU.

For example, in its 2008 ruling on the Kadi case (involving a Saudi businessman whose assets had been frozen), the European Court of Justice reiterated its doctrine that “a treaty can never enjoy primacy over provisions (including protection of fundamental human rights) that form part of the constitutional foundations of the Union.” That is, of course, precisely the argument that the Attorney General has made in a UK context.

To be clear, I am not suggesting that lots of people have pondered ECJ precedent and concluded that the EU is applying a double standard. Rather, in a shrewd and largely instinctive way, people have sussed that Britain faces an ill-disposed and hypocritical negotiating partner which is making unreasonable demands.

That, ultimately, is why Boris Johnson will get his Bill. It’s not just that he is right to have acted as he has (though he is). It’s that the country is with him. The Internal Market Bill has lined up everyone against the Government – except the general population. That split – radical lawyers, Europhile politicians, unelected peers and woke actors versus everyone else – is one with which Tory strategists are comfortable.

This is emphatically not an argument for always following public opinion. Apart from anything else, we are a fickle species. We demand the strictest possible lockdown, complete with curfews, and then complain about the downturn. We ask for increases in public spending, but we will react with fury when the money runs out. The last thing we want, when confronted with the consequences of our own choices, is to be reminded of what we asked for. Gavin Williamson could no more say “but you all told me to close the schools” Tony Blair could say “but you all supported the Iraq invasion when it was launched”. As Dryden put it, “Crowds err not, though to both extremes they run”.

Governing by opinion poll fails in its own terms. But, over the cycle, people generally get the big calls right. Not always; but more often than the elites. Brexit was a case in point. So is the Internal Market Bill.

Bernard Jenkin: If necessary, we must pass legislation that will nullify the direct effect and direct applicability of EU laws

11 Sep

Bernard Jenkin MP is Chair of the Liaison Committee, and of the ERG Steering Group. He is MP for Harwich and North Essex.

The Bill to regularise the trade of goods and services within the UK is part of taking back control from what is still regulated by the EU, while we are in transition to full independence. The UK Internal Market Bill was published yesterday.  All it does is to legislate for the uncontroversial principle that all goods produced in any part of the UK should be treated equally.

However, it also sets out to protect this principle from potentially damaging interference from the EU, and makes provision for the UK to insist on the right of UK self-government and an end to the application of EU laws in the UK.

The Northern Ireland Protocol (NIP) provides that Northern Ireland would remain subject to the EU’s customs laws and procedures and large parts of its internal market laws, under threat of enforcement by the EU Commission and the Court of Justice of the EU (ECJ). The EU’s rules on state aid would also continue to apply.

This clause could be interpreted widely, allowing the EU to impose their state aid regime on any UK policy which they consider impacts, in any way, on goods which are traded between Northern Ireland and the EU.

This applies not only to Northern Ireland, but also to goods originating from GB. The economy of NI is integrated with the rest of the UK, so there is nothing to prevent this clause being interpreted by the EU and its Court to continue imposing EU policy on large areas of the economy of the whole UK – a country that has formally left the bloc.  For example, if Westminster provided state aid to a manufacturer or farmer in England, which shipped some of its goods to Northern Ireland, then the EU could declare that support to be illegal.

The Protocol requires that customs and regulatory barriers would be imposed down the Irish Sea between Great Britain and Northern Ireland – a damaging division (as well as lots of red tape) between what are two parts of the same country.  This is at odds with the Agreement, which states that the UK should constitute “a single customs territory”.

UK-mainland based businesses trading in goods with Northern Ireland would have to pay tariffs at the EU Common External Tariff rate, if the EU considers them to be “at risk” of travelling on to the EU.  The EU alone could decide what constitutes an adequate customs check between Great Britain and Northern Ireland, what might be an illegal state aid, or what goods might be “at risk” of travelling on to the EU.

Why should the EU have a monopoly of wisdom over what this Agreement means?  These are not sustainable terms for the long-term relationship between a sovereign state like the UK, and the EU.

The only legitimate pretext for the Protocol to exist at all is to sustain the Northern Ireland Peace Process and the open frontier between the North and South.  It is reasonable for the EU to insist that this open border should not be used as an open back door to the EU for non-compliant goods or the evasion of EU tariffs.  However, if the UK can protect the Peace Process, to keep the border free of checks, while protecting the EU internal market, how can the EU justify their right to enforce their laws on the UK?

The UK Internal Market Bill seeks to address this, and this has reignited old feuds about Brexit. Specifically, it provides powers for ministers to ask Parliament to override any EU ruling, if the EU unreasonably seeks to impose these unnecessary provisions on the UK against our will.

If we end the year without a new trade agreement to supersede the Withdrawal Agreement, Brexit will not be “done”, because we would remain bound to the EU by the Withdrawal Agreement.  The UK signed the Withdrawal Agreement making clear that it should be superseded by a trade deal similar to the EU-Canada FTA.  The EU’s insistence that the Court of Justice of the European Union should continue to have direct jurisdiction over parts of the law of the United Kingdom should be seen for what it is: an inability to move on.

It is part of a an unreasonable pattern of EU behaviour.  The former UK diplomat to the EU, later John Major’s Press Secretary before becoming Tony Blair’s Ambassador in Washington, Christopher Meyer tweeted: “Article 184 of the Withdrawal Agreement commits the parties to negotiate on the future relationship ‘in good faith and in full respect of their respective legal orders’. It’s more than arguable the EU is already in breach on state aids and fish. ‘Trust’ works in both directions.”

Who in their right mind can consider that the Withdrawal Agreement offers any prospect of stability in the long term?  Agreeing to continued ECJ jurisdiction with direct applicability and direct effect could not in any way be considered as taking back control of our laws – the promise made both by Vote Leave and by the 2019 Conservative manifesto.  This would tear open the referendum divisions all over again.

Eurosceptics like me only voted for the Withdrawal Agreement to help the nation out of a paralysing political crisis. We made clear that it remains only the best of a bad job. We were assured that it was just a starting point for negotiations; that it would be superseded by a full FTA and, if needs be, could be repudiated.

This reassurance is buttressed by Section 38 of the Withdrawal Agreement Act. This makes clear that “the Parliament of the United Kingdom is sovereign” and so can repeal any “directly applicable or directly effective EU law”.  The House of Lords voted for that with hardly a squeak of protest.  The EU Parliament ratified the Withdrawal Agreement in full knowledge our Parliament had put this clause into the Bill.  The Prime Minister and our 2019 manifesto both made clear we will “take back control of our laws”, but it is becoming clear the EU may still not accept this and perhaps never intended it.

The UK should first try to re-negotiate the Agreement, but if the EU continues to be unreasonable, the Government is right to develop options.

The first is to enact domestic legislation that will nullify the direct effect and direct applicability of the EU laws.  The UK Internal Market Bill provides for this possibility.  If the EU still insists on applying the terms of the Withdrawal Agreement beyond what is reasonable, then the Parliament must be ready to use these powers. I hope it is not necessary, but if it is the only way to achieve UK prosperity and the kind of sovereign independence which is the democratic right of any nation recognised under the UN Charter, then so be it. And most other nations would respect us for that.

I was a bit surprised when the Northern Ireland Secretary so boldly announced that the Bill “does break international law”. This may be good tough talk, but it does not engender respect.  (Who told him to say that?)  His exact words are not even factually correct.  The key clauses themselves create no breach with EU law.  Even if the Government legislates to “disapply[ing] or modify[ing] the effect” of EU law, the Government may well be able to argue, while contrary to EU law, it is justified and therefore not a breach of international law.

What might be construed as a minor breach of some highly technical provisions of an international agreement does not mean a breach of “the law”, as it is understood under our constitution.  “The law” is the law passed by Parliament.  International law is a mixture of politics, diplomacy and the texts of agreements.  Trade agreements in particular are frequently disputed and dishonoured by illegal protectionism or punitive tariffs without justification.

The EU is a past-master at this.  Such agreements are not enforceable by our own courts in our own law unless Parliament says it should be so.  No self-respecting sovereign state would allow a foreign power the sole right to determine how to interpret and to enforce a bilateral treaty. Parliament has the inalienable right to enact laws to defend our national interests.

Garvan Walshe: Breaking the Withdrawal Agreement risks the No Deal Brexit this Government was elected to avoid

10 Sep

Garvan Walshe is a former National and International Security Policy Adviser to the Conservative Party.

The trouble with international agreements is that they are, well, international. By this I mean that sovereignty can’t be used as a trump card in the way that parliamentary sovereignty can in most domestic law.

This strongly suggests that the Government’s course of action in seeking, in the disarmingly frank words of Brandon Lewis, “to break international law in a specific and limited way” has not been properly thought through.

The domestic problems with this approach are well known. Any legislation to break international law will run into trouble in the Lords, which will feel entitled to block it, as it was not only absent from the election manifesto, but in fact directly contradicts its promise to implement the Brexit deal sealed in November 2019.

There is also the matter of the ministerial and civil service codes, which forbid the breaking of the law (the removal of the word “international” from the code makes no difference in practice), and are likely also forbid actions openly directed towards that aim.

It is therefore an open question of constitutional law whether legislation to this end, introduced improperly by ministers, and drafted by civil servants would be valid. It is rather clearer that ministers or officials participating in the production of such legislation risk falling within the ambit of the common law offence of misconduct in public office.

But my concern here is international. The foundation of international law has long been that states are sovereign. As well as meaning that they begin with full powers to arrange their internal affairs, it also means they have the power to make agreements with each other. An agreement means that the states accept obligations to each other, which is what makes a treaty different from a state making a unilateral declaration to itself. While a state retains the practical power to break an international agreement, it cannot change the meaning of the agreement on its own.

It is also a consequence of this sovereign power that states are able to revise treaties they make, by mutual agreement, and it is of course often the case that this revision is dictated by power politics, but even that is different from mere reneging on a treaty. Nevertheless, the power of revision is usually held collectively by the states that signed the agreement, not by individual signatories. Some treaties, like indeed the Treaty of European Union provide an exit mechanism (Article 50), but others, like the Withdrawal Agreement, do not.

The Government might have been better placed to argue that it was trying to use its residual sovereign power to seek to renegotiate the Withdrawal Agreement, which it had concluded under the duress of the two-year withdrawal period contained in Article 50.

While that would probably not have gone down well in Brussels, openly seeking to break these particular parts of the withdrawal agreement is rather more challenging, because Michel Barnier’s team built in three levels of safeguards against what it would consider to be “perfidious Albion.”

First, the relevant aspects of the Ireland/Northern Ireland protocol are governed by EU law, interpretable by British courts and, ultimately, European Court of Justice. Because of the way the UK incorporates treaties (including treaties that give effect to legal systems like the EU’s) into its domestic law, sufficiently explicit legislation could probably escape disapplication by UK courts.

But this in itself would be a direct violation of the agreement, which the European Court could be expected punish with a fine. Though the UK could refuse to pay the fine, on the grounds that it was acting according to it own law, this would just trigger the second level of dispute resolution, which is the Joint Committee established to be established under the agreement.

If the Joint Committee cannot resolve the dispute to both sides’ satisfaction, and in this case it is hard to see how it could, the case would be submitted to an arbitration panel at the Permanent Court of Arbitration. Lewis’s declaration that the UK intends to “break international law” is unlikely be helpful to the British case.

Now, the UK may as a sovereign state in practice refuse to abide by the arbitration panel, but in that case the agreement (Article 178, paragraph 1) provides for the panel to “impose a lump sum or penalty payment”.

If the UK refuses to pay that, the subsequent paragraph allows the EU to suspend either parts of the Withdrawal Agreement with the UK, or of other agreements it has. These include agreements on aviation freedoms, equivalence for financial services, “data adequacy” vital to the tech sector, and the right of truck drivers to travel to the EU. This would amount to the “no deal Brexit” that the Prime Minister’s withdrawal agreement, endorsed in the 2019 general election, was supposed to avoid.

Now that the Government does not need the votes of the DUP, it should think carefully about whether it would rather spend the rest of its term engaging in an optional legal fight with the EU, or, having got Brexit done at the end of the year, stick to running the country it was elected to govern.