Draft Withdrawal Agreement: a Fatal Flaw

We have been reading the Draft Withdrawal Agreement (DWA), soon to be presented to Parliament, by which the Government hopes to persuade us that we are leaving the European Union. We’ve searched the 585 pages trying to understand whether or not this Leave means Leave, as May is telling us. We are struck particularly by the section on the Joint Committee which seems to have had little coverage in the media so far. If Leave means regaining sovereignty then this section of the WDA emphatically means we aren’t leaving. Sections B to E add material that supports our conclusion that the UK, if this Agreement is ratified, will remain a semi-detached, ex-member state with many responsibilities and few rights.

When we have completed our review of the DWA it will be downloadable from here: MadnessMethod

A:        The Joint Committee

Part Six, Title II Institutional Provisions (pages 274-279 of the DWA)

   From Article 164

1. A Joint Committee, comprising representatives of the Union and of the United Kingdom, is hereby established. The Joint Committee shall be co-chaired by the Union and the United Kingdom.
3. The Joint Committee shall be responsible for the implementation and application of this Agreement.

   From Article 166

1. The Joint Committee shall, for the purposes of this Agreement, have the power to adopt decisions in respect of all matters for which this Agreement so provides…
2. The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement those decisions. They shall have the same legal effect as this Agreement.

So the Joint Committee would override Parliament. UK voters would not be electing a supreme representative legislature which has been at the heart of our democracy for centuries and a model for many of the world’s truest democracies. We will be trapped in a faux-democracy as preferred by EU theorists, a mere imitation, with top-down control and no eject lever.

The rest of this post also draws on the DWA to provide evidence in support of our concern.

B:         Joint Committee-2

Part Two Citizens’ Rights, Title III Coordination of Social Security Systems, Articles 30-36 (pages 53-66)

            From Article 36 Development of law and adaptations of Union acts (p.64)

1. Where Regulations (EC) No 883/2004 and (EC) No 987/2009 are amended or replaced after the end of the transition period, references to those Regulations in this Agreement shall be understood as referring to those Regulations as amended or replaced, in accordance with the acts listed in Part II of Annex I to this Agreement.
The Joint Committee shall revise Part II of Annex I to this Agreement and align it to any act amending or replacing Regulations (EC) No 883/2004 and (EC) No 987/2009 as soon as such act is adopted by the Union.

(ANNEX I, Part II Acts referred to (pages 512-514) does what it says – lists the Acts referred to.)

This appears to confirm our belief that the EU intends to incorporate significant features of the DWA in any agreement on the future relationship between the UK and the EU. Article 166 gives the Joint Committee the authority to overrule UK legislation and thus to impose terms of the DWA, including Article 36, beyond the end of the transition period. It confirms the precedence of Joint Committee decisions over the activities of both UK and EU governments.

3. Regulations (EC) No 883/2004 and (EC) No 987/2009 shall, for the purposes of this Agreement, be understood as comprising the adaptations listed in Part III of Annex I to this Agreement. As soon as possible after the adoption of any changes in domestic provisions of relevance to Part III of Annex I to this Agreement, the United Kingdom shall inform the Union thereof within the Joint Committee.

(ANNEX I, Part III Adaptations to Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 (pages 515-528) also does what it says; mostly additions to the Regulations to bring them into line with the DWA on the relations between the ‘ex-member’ UK and continuing member states.)

After being informed, the Joint Committee will have the right to overrule such changes, as it sees fit.

Is there any way that the UK Government can dispute or appeal a decision of the Joint Committee (noting that it will be represented on and hold co-chair of the committee)? From what follows it seems not.

C:         Disputes & arbitration

Part Six, Title III Dispute Settlement (pages 280-295)

   From Article 168

For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.

(And see ANNEX IX, Part A Rules of Procedure for Dispute Settlement (pages 569-580)

So the UK Government has agreed that the UK has no recourse outside the Withdrawal Agreement.

            From Article 170 (p.281)

1. …if no mutually agreed solution has been reached within 3 months after a written notice has been provided to the Joint Committee in accordance with
Article 169(1), the Union or the United Kingdom may request the establishment of an arbitration panel. (The establishment of an arbitration panel is set out in Article 171.)

   From Article 174

1. Where a dispute submitted to arbitration in accordance with this Title raises a question of interpretation of a concept of Union law, a question of interpretation of a provision of Union law referred to in this Agreement or a question of whether the United Kingdom has complied with its obligations under Article 89(2), the arbitration panel shall not decide on any such question. In such case, it shall request the Court of Justice of the European Union to give a ruling on the question. The Court of Justice of the European Union shall have jurisdiction to give such a ruling which shall be binding on the arbitration panel.

   From Article 175

The arbitration panel ruling shall be binding on the Union and the United Kingdom.

It is more than likely that any dispute submitted by the UK will fall under one of these three categories, particularly as the interpretation of Union law is the remit of the CJEU. In other words, in most cases ‘arbitration’ will be handed to the CJEU for a decision, which will bind the UK. And where the matter isn’t handed over, the arbitration panel’s decision will bind the UK. The most contentious decisions for the UK are likely to be those concerning EU law, particularly as they are often inimical to UK interests, and to the manner in which law is made and determined in the UK (see The World’s Favourite Law)

D:        Law

From Part 1 Common Provisions, Article 4:

1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.

The UK will remain bound by the membership terms as they are at present (and as they may be modified during the transition period – see above, Article 36).

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

The UK government has agreed that it will not introduce legislation that is incompatible with EU law but also that it will modify any existing rules that the EU deems to be “inconsistent or incompatible”.

The laws will undoubtedly be changed to the UK’s disadvantage in the transition period, without our input – we can see the clear intent from current behaviour (especially as the rules affecting our vital financial services sector have been made without concern for the UK’s global situation).

4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

We can forget British Common Law and its basis in precedent; the CJEU will continue to decide for us. The ECJ is mandated to make judgments that further the intentions (as they interpret them) of the EU treaties. This justice is therefore prejudiced (pre-judged) in favour of the EU authorities, whereas under UK law the commons may challenge the authorities and hope to win the case.

5. In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

The phrase “due regard to” is suitably squishy but they mean to continue to override UK law, and the UK government wants us to believe that this will be satisfactory, so fundamentally we will not be leaving the EU since we will be tied by any arbitrary rules it chooses to ‘hand down’ (the very expression typifies EU autocracy).

E:         European Court of Justice (ECJ)

Part Three, Title X, Union Judicial and Administrative Procedures, Chapter 1, Judicial Procedures (pages 145-151)

            From Article 86

1. The Court of Justice of the European Union shall continue to have jurisdiction in any proceedings brought by or against the United Kingdom before the end of the transition period…

            From Article 87

1. If the European Commission considers that the United Kingdom has failed to fulfil an obligation under the Treaties or under Part Four of this Agreement before the end of the transition period, the European Commission may, within 4 years after the end of the transition period, bring the matter before the Court of Justice of the European Union … The Court of Justice of the European Union shall have jurisdiction over such cases.
3. In deciding to bring matters under this Article, the European Commission shall apply the same principles in respect of the United Kingdom as in respect of any Member State.

            From Article 89

1. Judgments and orders of the Court of Justice of the European Union handed down before the end of the transition period, as well as such judgments and orders handed down after the end of the transition period in proceedings referred to in Articles 86 and 87, shall have binding force in their entirety on and in the United Kingdom.

In summary, under this Withdrawal Agreement the United Kingdom is not exiting the European Union but moving to a new, and inferior, status under the thumb of the Union.

 

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