It almost works

Were it not for the backstop, May’s deal would get over the line – with support from an overwhelming majority of Conservatives, including us.

Imagine for a moment that, at some point before Christmas or in the New Year, the backstop was radically amended – that a unilateral exit mechanism were to be slapped on to it.  Then go on to picture the following events.  The revised deal passes through Parliament, and there is no early general election.  And at the end of transition in 2020, a decision is taken about whether or not to extend it. Let’s presume that at this point it is indeed lengthened for, say, six months.  At this point, the backstop duly kicks in.  Then, at the beginning of 2022, the Government leaves the backstop, just in time for the general election of later that year.

During this sequence of events, the first substantial objection to the backstop – that we aren’t free to leave it – would have fallen away this very winter.  The second complaint – that the backstop places a regulatory border in the Irish sea and, given the presence of a backstop within a backstop in the text of the Withdrawal Agreement, a potential customs border too – would last for a mere sixth months or so.  Then the division that it causes within the United Kingdom would end.

From that point, the Government would have the freedom to leave the continuing customs union, and negotiate, sign and effect meaningful trade deals.  For example, the way would be open for it to pursue one with the United States, if it wished: the American Government has made it clear that any such arrangement will be restricted if the backstop is in place.  More broadly, the gains for Britain from May’s deal would at this point no longer be outweighed by the losses.

Let us remind ourselves what these wins would be.  As we wrote in our analysis of the deal after it was agreed, we would regain control of our borders, under its proposed terms, after the end of the transition period, extended or unextended.  Free movement would be no more.  We would also regain control of money.  We would almost certainly want to pay up for participation in specific European programmes.  But automatic payments into the EU budget would come to an end.  A Prime Minister Johnson would be able to tip the entire sum down the gaping maw of the NHS if Parliament so agreed.

There would be a role for the European Court of Justice in relation to EU nationals for eight years.  An arbitration panel would refer points of EU law to the Court, and there is a good case for saying that the panel would then be bound by its rulings.  But it is important not to confuse disputes about the meaning of EU law with those between the UK and the EU more broadly.  These would be resolved by a dispute resolution process.  Meanwhile, the Withdrawal Agreement’s legal underpinning for the backstop would become otiose when the backstop ended.

In short, Theresa May won on borders and money in the negotiation, and minimised the ECJ’s scope on laws, which could reasonably be scored as a points win.  She has won almost no credit for this achievement, first, because she has no media allies or strong public backing, but faces formidable opposition from both second referendum Remainers and UKIP-type Leavers; second, because U-turns and broken pledges elsewhere have bust her credibility and third, of course, because of the backstop.

There is another, big, structural gain from her deal.  Under its terms, we would be tied to developing EU acquis on state aid and competition.  However, we would not be so bound elsewhere – for example, in social or environmental matters.  Some EU27 countries are worried that British governments will be able to undercut their social model in future.  So under the deal’s terms, we will gain freedom of movement for goods – up to a point – without conceding freedom of movement for peoples.  The four freedoms have been prised apart.

Now, there are powerful objections to this rosy scenario.  Frictionless entry to EU for British goods will doubtless be bargained off against permissive entry to the UK for EU citizens, and to British waters for EU fishermen.  Guarantees in the Political Declaration rather than the Withdrawal Agreement lack legal bite.  Even were a unilateral exit to be negotiated from the backstop, we would still have agreed to pay the £39 billion or more agreed under the terms of the agreement – thus reducing our bargaining power during trade negotiations.  Essentially, the EU wants a high-alignment, high-access settlement, and so does our Treasury-led Government.

And the strongest case against our imaginary dropping of a permanent backstop is that it simply isn’t on the table: that the EU will not shaft a remaining member, Ireland, for the sake of a departing one, the UK, as this morning’s news confirms.  We concede the point at once.  Were Leo Varadkar not determined to take a high-risk gamble that the UK/Ireland land border will end up no harder than now – and had the Government rumbled him earlier and treated Ireland more attentively – matters might not have reached this pass.  Still, we are where we are.  This Prime Minister is most unlikely to win any worthwhile backstop concession in the New Year.

Why sketch out this scenario at all, then, if it almost certainly won’t happen?  The answer is: to make a point well worth making – namely, that only a single obstacle prevents May from winning the backing of her Party for her deal.  Most of the hostility to it would collapse were there a uniteral exit mechanism.  The list of objectors would then shrink from the 71 we clocked to a much smaller number: fewer than 20, at a guess.  Most would swallow a limited role for the ECJ, and reject the other objections that we have listed.

Sure, they would say, the EU will seek to gain entry for their citizens and fishermen.  But it would have no automatic right to either – and that’s what the referendum was all about, wasn’t it? – taking back control.  Yes, we would have lose some bargaining power by agreeing to part with £39 billion.  None the less, we would retain some too, because of our power to refuse access to our country and waters.  All in all, a reformed backstop would be allow the Conservatives and Labour to square off against each other on EU policy in future elections.

For were the UK free of the backstop come 2022, the Tory election manifesto would reflect its Eurosceptic centre of gravity, by proposing a Canada-type policy for future trade talks.  Labour’s, meanwhile, would be more Norwegian in flavour.  These two visions would then compete at the polls – at least to the degree that both parties, and voters, wanted to fix their attention on the future of Brexit.

As we say, this won’t happen – at least under this Prime Minister.  Her deal and the backstop march together in step.  And admittedly, even with a right to unilateral exit, this Government would be likely to exercise it if no deal waited on the other side of the door.

None the less, that exit would be there – which, ultimately, is what matters.  We’ve said before that Brexit isn’t a still photo, but a moving film – or should be.  Where Britain will be on day one isn’t where we will be in year ten.  The backstop freezes that film and prevents it from playing.  Provide a sure means of escape from it, and the film begins to roll.  And May’s deal thus becomes acceptable.

Unfortunately, there is vanishingly little prospect of that.  The backstop lies between her and success like a hollow in the path of a runner.  It is so narrow as almost to be leapable. But it plunges many, many miles deep.

Chicken May

Is she chickening out on Brexit? Or playing chicken with Commons and Party over her deal? Or merely a headless chicken herself – bent on daily survival?

What now is Theresa May’s plan, this morning after the day before?  The simplest explanations are often the most convincing.  In her case, this is: she no longer has one.  Her ambitions for country, party and self have shrunk to seeing each day out.  The most primal of human instincts has taken over, more urgent even than the drives to sex and food: simply to survive. Clinging to office fills her horizon.  She shuffles on into a void.  The will to power has left her a ghost.  Perhaps that is all that can be said.

But there are two other potential answers, assuming that she is not brooding on a general election or preparing to resign – a move that would be out of character for a woman who appears to equate being Prime Minister, whatever the circumstances, with doing her duty.  These explanations are worth probing because, with the future of country, Party and Brexit at stake, Conservative MPs, activists and others must work every faculty to read the signs of the times accurately, and then act promptly.

The first is that she has already decided to postpone Brexit, seek a second referendum, or both.  This take has it that she knows very well that her deal will not be substantially improved by the EU; that it therefore cannot pass through Parliament; that the Remain-friendly Commons will shortly bid for control of its proceedings and timetable – and that she will then, a confidence vote from her Parliamentary Party notwithstanding, give way.  No deal is better than a bad deal has been supplanted by any deal is better than no deal.

Like an empty boat being pushed by the tide, she will drift along with the five-sixths or so of MPs who see a no deal Brexit as the ultimate political evil.  Perhaps the Commons will somehow pull for Norway Plus instead; more likely, it won’t.  It was worth watching which Cabinet heads nodded on her own front bench yesterday when she reiterated the Government’s present stance on a second referendum – and which didn’t.  Greg Clark’s didn’t so much as twitch.  David Lidington and David Gauke are also reported to be ready for a U-turn.

As for that policy – opposition to another referendum – how sure is it?  Indeed, what faith can we place in any commitment that May makes on Brexit, or indeed on anything else?  She promised that she wouldn’t call an election last year; that her Brexit policy would be based on “a comprehensive system of mutual recognition”; that migration would be controlled during transition; that transition wouldn’t be extended; that she would oppose new regulatory barriers in the Irish sea. Ministers were told last year that the backstop had no legal effect.

Politics is a rough old trade, and bending the truth is, as elsewhere in life, part of it.  But even by the standards of Westminster, the Prime Minister’s breaches are brazen.  Leave aside as debatable those manifesto commitments on the Customs Union, the ECJ and the Single Market, and look at the events of recent days.  May said that the EU would not offer us a better deal if the present draft is rejected.  Now she suggests that it can be improved after all, not ruling out changes to the Withdrawal Agreement itself yesterday.

Stephen Barclay and Gove were sent out – the latter only yesterday morning – to assure the public that the meaningful vote would go ahead.  As late as 11am, the Prime Minister’s spokesman was insisting that this was so, even as Cabinet Ministers were briefing that it wasn’t.  Small details like these have big consequences.  Near the core of May’s problem in selling her deal to MPs is that too many of them have simply lost trust in her.  Some no longer believe assurances even when they are accurate – say, on future divergence.

The second interpretation of the Prime Minister’s thinking is completely different.  We advance it with some hesitation, because it may represent less a scheme crafted deliberately than one stumbled upon by accident.  The sum of her statement yesterday was that the meaningful vote is postponed.  She gave no indication whatsoever of when it will be brought back.  In reply to Justine Greening, she suggested that the Government is obliged to hold it by January 21.  Later that day, that was flatly contradicted by the Commons authorities.

Under their interpretation, May’s real deadline is March 28, since the Commons must ratify any amended deal reached with the EU no later than that date.  This could open up an opportunity for the Prime Minister to play a risky game of chicken with our EU interlocuters, the Commons and the Party.  For the later the meaningful vote takes place, the more sharply a no deal Brexit will loom.  This might open up an option for her: don’t rush for a settlement pre-Christmas, but spin out the talks instead – thus ramping up pressure on MPs.

It is possible to think May now believes that, under that pressure, the EU will fold next year, and offer a time limit or a unilateral exit from the backstop.  Or that she is concluding the Commons would collapse, even if the EU did not – that, with March 28 and no deal immiment, Labour would buckle and abstain, together with other opposition parties.  Or that even if Jeremy Corbyn did not, some Labour MPs would.  Meanwhile, Conservative opponents could be steered into the abstention column, and Tory abstainers into the aye lobby.

Now, this scenario makes many assumptions: that the Prime Minister will still be in place; that there is no Cabinet revolt; that the Commons has not, by the New Year, wrested control from the Government altogether; that MPs do not (if May seeks to spin out her dealings with the EU) revolt, propose the postponement of Article 50 and perhaps a second referendum, and then see her back down; that the Prime Minister has not been censured, or the Government no confidenced.

But one can also see how the truth could be found here – that May is not so much a headless chicken herself, or seeking to chicken out of Brexit but, rather, now sees before her this game of chicken unfolding as next year unfolds.  It would have one immeasurable plus from her point of view.  It would if successful be a win.  Her deal would have triumphed.  She would have crushed her internal opponents – hard Brexiteers, Norwegians, second referendum supporters: the lot.  The stage would be set for her to go on and on and on towards 2022.

So, back to the present. The wolf has cried 48 letters many times.  It may be that, unlike the animal in the fable, it never comes: that waiting for those letters is like waiting for Godot.  The next 24 hours or so may represent the last chance before the New Year for Tory MPs to act.  Some may do so, convinced that the Prime Minister is beyond rescue.  Others may waver still, terrified of the effect of a leadership challenge on what’s left of the negotiation, or unconvinced by May’s potential replacements.

Our bottom line is that the referendum result must be delivered.  If pro-Brexit MPs believe May is now set on a chicken game, they may stay their hand.  If they conclude that she is set on abandoning Brexit, they won’t and shouldn’t.  On Sunday, we recommended that Tory MPs should send in letters if no substantial change to the backstop emerges this week.  Perhaps the most reliable guide should be what could be called the Greg Hands test – namely, to send in those letters if real preparations for no deal aren’t announced before the weekend.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Chris Grayling: Here at Transport, we’re getting ready for Brexit – whatever happens. But here’s why I’m backing May’s deal.

If I had been offered this before the referendum in 2016, I would have seen it as a much better alternative to the status quo inside the EU,

Chris Grayling is Secretary of State for Transport, and MP for Epsom and Ewell.

Last week, the UK and the US signed a new aviation agreement which will cement the air links between us once the UK leaves the EU. The agreement secures the existing air links, and sets out the ways in which new operators can enter the market in future. We have worked closely with airlines on both sides of the Atlantic to make sure we get this deal right.

Then at the weekend, we also concluded our agreement with Canada, sorting out the last significant one of our non-EU aviation links after Brexit. Within Europe, both the European Commission and other member states have been clear that there will be an aviation agreement regardless of the broader agreement – so people can feel free to book their holidays next year without any concern to countries both inside and outside the European Union.

We’re also carrying on with detailed preparation for all eventualities after Brexit. We are making provision to ease the pressure on Dover and Calais if there are customs hold ups after we leave. We are making sure British motorists have easy access to international driving licences if they are needed.

But none of us want that to happen – and certainly not the thousands of small businesses who operate in the transport field. They want a deal, and a smooth transition to the world outside the EU.

So now the focus is on delivering that broader EU exit agreement. I campaigned for Brexit in 2016, and I have not changed my view that Britain is better outside the EU, but remaining good friends and neighbours with our current EU partners. My reason for campaigning to leave was that I believe further EU integration to be necessary and inevitable if the Eurozone is to survive in the long term, and I do not believe that it is right for the UK to give up more and more of our national sovereignty.

But I am absolutely clear that the country did not vote to sever ties with our neighbours or to leave on bad terms. I believe that virtually everyone would wish to continue good relations with those countries.

For centuries, Britain has been an outward-facing, global, trading nation. In the post-Brexit world that is particularly important for all of us. Our goal is to remain good friends and neighbours with our EU partners, but also to ensure that we build and deepen ties around the world.

Good aviation links are vital if we are to achieve that. It’s why we are moving ahead with the expansion of Heathrow. It’s why we have given regional airports greater freedom to develop expanded links. And it’s why we have made sorting out updated aviation agreements to cover life outside the EU a priority.

A lot of the focus right now is on the Prime Minister, and her work to secure backing for the deal. But the British public, and Conservative MPs, should not forget the disgraceful behaviour of the Labour Party over all of this.

When I campaigned round the country for Leave, I was as warmly welcomed in Labour heartlands as in traditional Conservative areas.

Jeremy Corbyn is letting those people down, trapped as he is in a bubble of fellow travellers within the champagne socialism of a certain clique in Islington. They will not forgive him if he votes to keep free movement of people and unlimited immigration. They will not forgive him if he leaves the UK obliged to sign up to new EU laws in future. They will not forgive him if he leaves our fisheries open to all comers.

The Labour leader was always a Leaver. He claims to be a man of principle. But he’s abandoning Brexit for Party political reasons. And it will also be the final sign for millions of traditional Labour voters that their party has once and for all abandoned them.

I believe that we now need to get on with leaving the EU in March, but also to make sure we do so on good terms.

The main challenge from opponents of the current deal is focused on the backstop in it. This is a temporary arrangement that could be used if there was a delay to the final trade deal after 2020. But it is not intended to be a permanent arrangement, and both we and the EU have been clear about that. It would also be unworkable for the EU for any length of time – it would mean every time they wanted to change their laws, they would do so in the knowledge that we had no obligation to do the same, and that our business might be more competitive as a result. That is not a position that they could accept for any length of time.

The agreement which we are being asked to consider as MPs ends the free movement of people, ends the role of the European Court in the UK, leaves the Common Agricultural Policy and the Common Fisheries Policy, and means that we are no longer required to adopt EU laws. We have agreed to maintain, for example, high environmental and social standards – but that’s something we would want to do anyway. If I had been offered this before the referendum in 2016, I would have seen it as a much better alternative to the status quo inside the EU, where we have little control over many of these things and where more and more integration is inevitable. So we need to get behind the Prime Minister.

The Withdrawal Agreement seriously risks compromising national security

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

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

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

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

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

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

The NI Protocol in the WA distinguishes between:

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

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

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

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

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

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

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

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

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

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Robert Halfon: My constituents are against us shelling out £39 billion for nothing. Anyway, are we really obliged to pay?

If all this is correct, the EEA route seems to me a sensible way forward if Parliament can’t agree on a deal.

Robert Halfon is MP for Harlow, a former Conservative Party Deputy Chairman, Chair of the Education Select Committee and President of Conservative Workers and Trade Unionists.

In a question to the Prime Minister last week at PMQs, I asked:

“I do have respect for the Prime Minister, and I understand her position. However, over the past few years, we have had very difficult cutbacks to local services in constituencies such as mine – in Harlow – and across the country, and ​every time we make the case that it is a difficult economy and we do not have enough money. How do I explain to my constituents that we have £39 billion to get out from the Treasury sofa to give to the European Union when it is questionable whether we owe all that money? Does she not agree that this is not just about the European Union – it is a matter of social justice?

In our communities, the difficult economic situation has hit our local services, our neighbourhood groups, charities and policing – amongst other things. And yet, when push comes to shove, the Government seems willing to hand over £39 billion from scarce monetary resources.

This hefty financial settlement means that Brexit has no longer stolen only the limelight of Government business, pushing domestic policy issues down the pecking order, but is now robbing from the pay packets of hardworking taxpayers who want to see a better return on their investment at home.

And what’s worse, according to legal experts, the basis of this hand-out is questionable at law. The EU argues that we have a financial obligation to pay the £39 billion. But is this really the case? The House of Lords European Union Committee suggests otherwise. Lawyers for Britain’s analysis even goes as far as to conclude that we are owed £10 billion!

The wording of Article 50 is clear: upon leaving the EU, “the treaties shall cease to apply to the state in question”, be that by way of the Withdrawal Agreement or, in the event of a No Deal – either way, on the 29 March next year.

As legal professionals and scholars note in the Lords’ report, the hierarchical structure of EU legislation entails that once treaties cease to apply to the UK, so too do all EU legal obligations found in subordinate legislation, including the UK’s current and future financial obligations under the Own Resources Decision, the Multiannual Financial Framework and the annual budget. Lawyers for Britain scrutinise the EU’s approach: the EU is inevitably bargaining for the most expensive divorce bill it can get its hands on, and attempting to secure contributions for two years after withdrawal.

Furthermore, the Lords’ Committee report shows that any attempt to enforce payment by the European Union would be null and void. It would first depend on a member state bringing an action before the European Court of Justice – the European Union as an entity cannot do so. But significantly, the ECJ would no longer have jurisdiction to make binding legal judgments against the UK. A double-edged sword in that the Government’s White Paper has clarified that the Great Repeal Bill will remove any supremacy of EU law: indeed, it will cease to be a source of domestic law, removing any possibility of enforcing the UK’s financial obligations.

On top of all this, the Attorney General confirmed to me in the Commons on Monday, that if Britain extended its transition period, not only would we owe £39 billion, but potentially many more billions in the transition years.

But even if the Government is right, and even if we must pay £39 billion, is it fair to give them a whole load of money without asking for anything, in return – for example, an end date for the Backstop?

We need a Stop-Gap, not a Back-Stop.

What happens if the deal falls in the Commons? What is the alternative? If you read David Owen or  George Trefgarne, you will see that one proposed solution is to rejoin the European Economic Area. Having signed up to the EEA back in 1992, a letter to the European Free Trade Association is apparently all would take to reactivate our membership – a seemingly painless alternative to anything else on the table.

If this route is adopted, Trefgarne argues we would face no extra tariffs, and we would be in the Single Market – but outside the Customs Union. We would no longer be under the jurisdiction of the European Court of Justice, but the EFTA court, of which three out of five of the judges would be British.

If all this is correct, the EEA route seems to me a sensible way forward if Parliament can’t agree on a deal. It would give us a temporary ‘stop-gap’ until we negotiate and prepare for a potential, full No Deal with the EU, but it wouldn’t cause significant problems in terms of business and the economy. Belonging to the EEA would also cost much less – an annual payment of between £1.5 to £3 billion.

The beauty of this stop-gap is its simplicity. Owen states that “We, like the three other non-EU members of the EEA, would not be starting out as part of the EU customs union, though we could pursue that. We could pursue our own EU-UK free trade association (FTA)….there is no necessity for us to join EFTA. We would not be fixing any time limit as to how long we stay in the EEA. Like the other three non-EU countries, we would continue to be bound, as are all parties to the EEA agreement, to give one year’s notice of leaving.”

In a recent, brilliant BBC Westminster Hour interview, Charles Walker said that next week’s vote is possibly one of the biggest votes that all MPs will make for many years. He is right. Whilst I really worry about the chaos that may ensue if the deal is voted down, the issue surely is: do you vote for the deal, with its flaws, because of worries about the aftermath (i.e. do you vote for nurse, for fear of something worse) or do you vote on the merits or demerits of the deal itself – value to the taxpayer, and whether the referendum result is being truly honoured?

Johnny Mercer: Ministers are asking for my vote next week. But I’m asking them for a vision – now.

I, like many colleagues, react badly to the Party’s decision to try and strong-arm me into voting for this deal.

Johnny Mercer is a member of the Defence Select Committee and MP for Plymouth Moor View.

I’ve no idea what to do. I’m looking for hope – for inspiration from the generation of Cabinet ministers and seniors members of our Party who led us to this point.

I came into politics for fairly niche reasons. I fought for years in an unpopular war and, fed up of the politicians feigning interest, I decided to run for office. My city of Plymouth – I’m passionate about it. Whilst my wafer-thin experience in politics helps me to retain a degree of perspective in these tumultuous times, it has also caught me out. I regret not being clear enough in some areas: for example, I never said that I wouldn’t vote Conservative in that notorious interview in October; I simply stated that a young, busy family attempting to assert itself in a competitive and chaotic world would probably take one look at the current political offerings and simply not take the time out to go and vote, because those offerings are so poor. But of course that view can be twisted. And I should have known that.

None the less, this perspective has also led me to some pretty dark conclusions of late. I have been firm in my criticism of this administration – one of which almost everyone knows my description, and one by which I resolutely stand by (though will not repeat). There are many people in this country who want – indeed need – a competent compassionate modern Conservative Government: I must speak out for them. The fear that they may turn to a Labour Party led by Jeremy Corbyn – particularly in Plymouth – is the single motivation for all of my interventions. Nothing more and nothing less.

But amidst all this, I have been looking for a vision – at no moment more so than now. There are plenty of colleagues who have come into Parliament to extract Britain from the European Union. They respect my endless diatribes about how this country treats its military, and in return I entirely respect them and their views on Europe. I remain ambivalent: the EU is an issue of course, but it is not the issue of our modern times. Many more people join the Conservative Party, as I did, for reasons other than Europe. I want to leave the EU – we must leave. But for what?

And I ask that not mockingly, but with a genuine desire to hear the answer. I, like many colleagues, react badly to the Party’s decision to try and strong-arm me into voting for this deal. The idea that a group of senior people in our Party who lost a 21 point lead in a self-indulgent general election – to Jeremy Corbyn – are advising me to now listen to my constituents, having singularly failed to do that themselves ever since David Cameron left office, is genuinely amusing. The arrogance of failing to answer the question – what is “Plan B”? – as part of a suite of unthinkable threats including a general election, no Brexit, or a no deal catastrophe, actually push me away from supporting this particular deal. The clear deception of red lines crossed without acknowledgement, and the idea of the UK being a junior partner in a relationship that we cannot unilaterally leave, leaves agnostics like me are looking for an alternative.

But I can’t hear it. How are my constituents – who voted almost 70 perc ent to leave the EU – how are their lives going to be better off in April compared to March, immediately after this momentous decision? How will being outside of the European Union help our core mission as modern Conservatives – to meet the challenges of a modern Britain that is changing so fast. Why or how is food going to be cheaper for some of my poorest families? How will being outside the ECJ help my small entrepreneurial businesses in Plymouth? How will our economy thrive to provide the jobs – the single biggest accelerant of life chances in our most deprived communities like mine. How will Brexit provide the engine that drives a health service so desperately in need of reform in places like Plymouth?

I could go on, but I won’t. At some point, someone, somewhere in a position of influence in this Party will wake up and realise that the politics of fear will only take us so far. It is easy to scare people into voting for you. It is harder to sell a vision, to advocate, to persuade – to lead people to a brighter future. But that is the key question this week. Can a case be made for a bright alternative, or are we going to accept this deal as ‘the best we can do’, ‘could always be worse’, answer that won’t encourage a single swing voter to vote for us at the next election? I wait with interest. More importantly, the country does.

George Bridges: The Prime Minister’s Brexit deal. The choice facing Parliament is compromise or chaos.

If you want to be sure that Brexit happens, however much you might dislike this plan, there is only one course of action – vote for it.

Lord Bridges of Headley was Parliamentary Under Secretary of State at the Department for Exiting the European Union until June 2017, when he resigned. 

Do you think that Parliament should honour the result of the referendum and withdraw from the European Union? This is the simple question at the heart of the debate over the Government’s deal.

If your answer is “no”, then don’t bother reading any further. Obviously you can’t support any deal – you want the UK to remain in the EU. If you’re a Leaver, I suspect your answer is a resounding, deafening “yes”. I agree – as a Remainer, and a Conservative whose party was elected on manifesto that clearly stated “the United Kingdom is leaving the European Union”. (Labour MPs were elected on a manifesto that stated “Labour accepts the referendum result”.)

This then begs the next question: “is it in our national interest to agree to the deal on offer?” To answer that you need to examine both the deal itself, and then the consequences of Parliament rejecting it.

There is much to dislike about the deal – especially the vice of the backstop in the Withdrawal Agreement, and the vagueness of much of the Political Declaration. But this outcome should not have come as any surprise to anyone. It is the result of multiple failures. Failure to be honest about the need for compromise. Failure to answer clearly the question “what matters more – our sovereignty or access to EU markets?”, and then to create a clear consensus in the Cabinet before triggering Article 50. Failure to prepare effectively for no deal. Failure to reject the concept of the Irish backstop. Failure to win a majority in the last general election, making it much more difficult to secure Parliamentary backing for an agreement, or for no deal.

The product of all this is a deal which, once signed, will enshrine the backstop in law, give the EU the “divorce” cheque, and thereby strip us of much of our negotiating leverage in the next phase of the negotiations. And yes, that could mean us falling into the customs union backstop, from which we could only escape with the EU’s permission.

That said, consider what the deal would deliver. The core, fundamental point is we will leave, period. We will enter a transition agreement. We will be out of the EU’s political union. Today’s payments to the EU will stop. More than that, amidst the verbiage the political declaration, the silhouette of the final deal is becoming clear. It amounts to something that the EU has long resisted: splitting up the four freedoms. We would have complete control over immigration. The UK would – it seems – remain close to the EU on the regulation of goods, but would have more control over our services, which amount to 80 per cent of the economy. The supremacy (but not the entire role) of the ECJ would be over. We would be out of the Common Agricultural Policy and the Common Fisheries Policy.

The scale of criticism directed at this approach reflects an obvious point: like most compromises, people on both sides of the debate dislike it. But if we want to leave with an agreement, compromise between Leave and Remainers, and with the EU, was always going to be inevitable. And this compromise appears to deliver on the priority for Leavers and Conservatives: immigration. YouGov asked Leave voters to say whether trade policy or control over our borders were more important to them in assessing the Brexit negotiation: 55 per cent said immigration, 28 per cent trade.  Among Conservative voters, 49 per cent said immigration, 34 per cent trade.

So yes, there is devil in the detail of this agreement. But it is a devil we know. The same cannot be said for what happens if this deal is voted down. The only outcome we can then be certain about is uncertainty.

Option one – asserted by many Leavers – is the UK leaves without a deal. Put aside whether the UK is ready for this outcome (which is highly dubious): the key point is the majority in the Commons appear to oppose a no deal Brexit. True, the Commons cannot pass a motion that binds the Government’s hands. But on an issue of this scale, the Government cannot ignore a motion as if it were graffiti. It will need to act.

And so we get to option two: the Government tries to renegotiate the deal with the EU. Some claim the Government could modify the backstop, or get it dropped entirely. Dream on. The EU have always seen the backstop as a solution that cannot be ended by one party – that would defeat its purpose. They are unlikely to scrap it even if we were to say now “let’s join the EEA”: that’s our future relationship, which is for the next phase of the negotiation. (And that’s before one considers whether the Conservative Party would accept not taking back control of immigration.)

Enter option three: we extend the Article 50 negotiating period and delay Brexit. Parliament and all the EU member states would have to agree to this. Would they? How long would the extension period last? And unless the deal were to be radically revised (unlikely, as I’ve said), why would the result not also be rejected by Parliament?

The signals from Brussels suggest that the EU would only extend Article 50 if there were to be a material change in the political situation here. And so that brings us to option four: we have a general election. This still seems unlikely, given the only thing on which there is a Parliamentary majority is a wish to avoid one.

So that leaves option five: a second referendum, now apparently seen as “inevitable” by Labour if there is no general election. And this is what should really concentrate the mind. For if you agree with the very first point – that we must honour the referendum and leave the EU – then do you want to risk this?

If the answer to that question is “yes”, and you want a second referendum, is there a majority in Parliamentary to extend Article 50 (as we would need to time to get the legislation through Parliament)? Is there a majority in Parliament to vote for another referendum? What would the questions be? Would voters be asked to support this deal – even though we are not clear on the final destination? And imagine the public voted again to leave: given Parliament does not support leaving without a deal but does not agree on this deal, what is to say we won’t land up back precisely where we are now?

This deal is not perfect. Compromises rarely are – and this Government has exacerbated the situation by its handling of the negotiations. But the time for debating preferences and options is over. Now we have to make a decision and choose. The devil you know or the devil you don’t. Compromise or chaos. If you want to be sure that Brexit happens, however much you might dislike this deal, there is only one course of action – vote for it.

Leaked Commons legal analysis of Brexit deal vindicates Trump, contradicts May and adds to Brexiteers’ concerns

The Government is already on the rack over its refusal to publish the legal advice provided on the Brexit deal by Attorney General, Geoffrey Cox, despite a parliamentary motion ordering it to be done. Cox will make a statement on the matter in the House of Commons later today (Monday 3rd December), during which he […]

The post Leaked Commons legal analysis of Brexit deal vindicates Trump, contradicts May and adds to Brexiteers’ concerns appeared first on BrexitCentral.

The Government is already on the rack over its refusal to publish the legal advice provided on the Brexit deal by Attorney General, Geoffrey Cox, despite a parliamentary motion ordering it to be done.

Cox will make a statement on the matter in the House of Commons later today (Monday 3rd December), during which he will doubtless be questioned about the leak in the Sunday Times of a letter he wrote in which he admitted that the UK would be trapped “indefinitely” in a customs union with the EU if the backstop comes into effect.

But ministers now face further questions as it emerges that a confidential analysis of the Withdrawal Agreement by the House of Commons’ own expert legal team comes to the same conclusion as President Trump – that Theresa May’s Brexit deal would prevent the UK from entering trade deals with countries such as the US.

The bombshell is contained in a 27-page legal note prepared by the House of Commons EU Legislation Team, which is headed by Arnold Ridout, its Counsel for European Legislation. A highly respected specialist in EU Law, he has previously worked for the EC Commission’s Legal Service and advised the European Secretariat of the Cabinet Office and prior to taking up his current role in 2014, he was Deputy Legal Adviser to the House of Lords EU Select Committee.

The note – marked ‘not for general distribution’ and obtained by BrexitCentral – is dated 26th November and states that the UK-EU customs union which would come into effect if the backstop is triggered “would be a practical barrier to the UK entering separate trade agreements on goods with third countries”.

This is in direct contradiction to the Prime Minister who has insisted that her deal will allow the UK to have an entirely independent trade policy. Indeed, she told the House of Commons just last Monday how “for the first time in 40 years, the UK will be able to strike new trade deals and open up new markets for our goods and services”.

The legal note – titled The Withdrawal Agreement: Legal and Governance Aspects – also appears to suggest that the Prime Minister’s claim (also repeated last Monday) that her deal “takes back control of our laws” by ending “the jurisdiction of the European Court of Justice in the UK” with “our laws being made in our Parliament, enforced by our courts” does not entirely stand up to scrutiny.

In its summary of “Continued application of EU law”, the note states:

  • EU law will apply during the TIP [transition or implementing period], but essentially without formal UK participation in its making;
  • EU law will apply after the TIP to protect the rights of EU citizens in the UK. This could extend for some considerable period.
  • EU law also will apply after the TIP in relation to the Separation Issues and the Financial Settlement. Again, this could extend for a considerable period.
  • EU law will apply extensively, particularly in Northern Ireland, under the “Backstop” found in the Ireland/Northern Ireland Protocol.
  • EU law in relation to goods, turnover taxes, agriculture and fisheries as well as veterinary and phytosanitary rules will apply in the Sovereign Base Areas of Cyprus.
  • After the end of the TIP the CJEU will continue to determine the interpretation of EU law applicable under the WA by the mandatory reference procedure from the arbitration panel.

Moreover, if the backstop has been triggered and the UK-EU custom union established, it adds that:

“The UK will conform to specific EU legislation on customs, including with respect to third countries. To provide a ‘level playing-field’ the UK commits to non-regression (from the law as it stands at the end of the TIP) on EU environmental protection, labour and social standards, state aid and competition and state-owned undertakings in respect of administration of tax…. On the UK side of the customs union, in the ‘United Kingdom in respect of Northern Ireland’, specific additional EU legislation applies on customs, certain VAT and excise, and certain technical standards relating to goods”.

Another section in the document which caught my eye concerns what happens when the proposed Joint Committee (of representatives of both the EU and UK) which supervises the Withdrawal Agreement and the backstop cannot reach a consensus on certain issues:

“Both UK and EU are represented on the Joint Committee, so no decision may be made without the UK’s agreement.  This may not be the same thing as the two parties having equal power, as the aims of the parties will matter. If the Joint Committee is unable to reach a decision, in some circumstances, that will block next steps. The party that wants those next steps to occur, will then be at a practical disadvantage. By way of example, i) the Joint Committee sets the limits of state aid that can be authorised by the UK for agriculture. If limits are not agreed, state aid may not be authorised.” 

In other words, in those circumstances the UK would not be free to set levels of subsidy for UK agriculture, but the EU would remain free to adjust its Common Agricultural Policy however it liked. EU products would therefore have open access to the UK market via the customs union, while Brussels could stop us subsidising agriculture at all unless it was agreed in the Joint Committee.

And given that the proceedings of the Joint Committee will be confidential, the document concludes that “the absence of transparency would impact on any proposal for Parliamentary scrutiny of the UK participation in the working of the JC”.

Meanwhile, many readers will have concerns about the potential for the UK being disadvantaged over the working of the arbitration panel appointed for the purposes of dispute resolution. It will comprise five people: two nominated by each party and a chairperson from a list agreed by both, and also be encouraged to try to take decisions by consensus, but can decide by majority.

As the legal note explains:

“This raises the prospect of a decision adverse to the UK on the view of the EU appointed panel members and the jointly appointed chairperson outvoting the view of the UK appointed panel members.”

Reacting to the contents of the document, Conservative MP Marcus Fysh, who sits on the International Trade Select Committee and European Scrutiny Committee, told BrexitCentral:

“This document identifies and explains many of the very serious legal problems for the UK that would emerge from the Prime Minister’s proposed Withdrawal Agreement, should it be approved. It is wishful thinking and irresponsible to accept the Government’s spin of this damaging legal reality, or to think it could be used as a basis for successful further negotiation. I don’t believe any MP in possession of these facts could in good conscience ignore them and support the Withdrawal Agreement.

“The EU and UK have a great future as friends, but this is not the way to achieve it. Let’s waste no more time, prepare for all eventualities, and work constructively for an advanced but regular Free Trade Agreement which respects the independence and integrity of our jurisdictions while making trade and community relations smooth, effective and efficient. We have set out how to do this, contrary to the Government’s attempt to say otherwise, and there is no reason a plan and schedule for ratification of such an agreement cannot be agreed by the end of March so conditions remain smooth from the end of March until that happens. That is the way to preserve the faith the people of the UK have in their politics, and we need a Government that will ask for it.”

You can view the leaked document for yourself below or by clicking here to see it as a pdf

Withdrawal Agreement Legal and Governance Aspects

The post Leaked Commons legal analysis of Brexit deal vindicates Trump, contradicts May and adds to Brexiteers’ concerns appeared first on BrexitCentral.