There’s still a chance that the PM’s deal on the withdrawal agreement (WA) could get accepted by Parliament if she can agree a small tweak to the Irish ‘Backstop’. This would be a serious mistake. One of the Daily Telegraph‘s most perceptive commentators, Juliet Samuel, believes it’s good to go as it is, so it’s worrying what little fudging might be required to win over a majority of MPs. The permanence of the backstop is baked into the WA and the EU will not change that, as we show below.
Juliet Samuel, Daily Telegraph, 8 February 2019.
This is another thoughtful and well-written article. However, we believe that she makes a mistake and that mistake takes her to a wrong conclusion, in which she argues in support of accepting the Withdrawal Agreement.
“…there is, in fact, a deal on the table that not only delivers these things, but which actually goes further. It’s called the Irish backstop…”
First, she contrasts the claim, made and repeated by Michel Barnier and others to the point where it is taken for granted by too many observers, that Brexiteers have not produced any plans. And she names a few good examples.
However, she continues, “The backstop, flawed though it is, delivers all of the following elements of Brexit: [a list]”. The key point on which she is wrong is, “…and an end to the jurisdiction of EU courts.”
The backstop (better known formally as the Protocol on Ireland and Northern Ireland), contrary to Ms Samuel’s assertion, does not legislate an end to the jurisdiction of EU courts (by which we take her to mean the CJEU). On the contrary, as Article 185, below, makes crystal clear, the backstop is intended to stay in force after any transition period. And this failure makes nonsense of the other ‘freedoms’ she claims the backstop delivers.
From the PREAMBLE to the WA:
ACKNOWLEDGING that, for an orderly withdrawal of the United Kingdom from the Union, it is also necessary to establish, in separate protocols to this Agreement, durable arrangements addressing the very specific situations relating to Ireland/Northern Ireland…
From Article 185 :
The Protocol on Ireland/Northern Ireland shall apply as from the end of the transition period…
This makes it abundantly clear, whatever else the WA says about the backstop being temporary, that the intention of the EU is to bind the UK into the Protocol/backstop indefinitely.
From the PROTOCOL ON IRELAND AND NORTHERN IRELAND (pages 302-475 of the WA)
The introductory paragraphs have the following:
RECALLING the Union’s and the United Kingdom’s intention to replace the backstop solution on Northern Ireland by a subsequent agreement that establishes alternative arrangements for ensuring the absence of a hard border on the island of Ireland on a permanent footing…
This appears to flatly contradict Article 185, quoted above. But the Articles will be legally binding whereas the chatty rubric is just that.
HAVING REGARD to the Union and to the United Kingdom’s common objective of a close future relationship, which will establish ambitious customs arrangements that build on the single customs territory provided for in this Protocol…
This reveals the EU’s intentions with regard to the future relationship. In the first paragraph above the parties propose to “replace the backstop solution”, while the second paragraph states that the future relationship will “build on…this Protocol”. And Article 185 states that the Protocol will continue to apply. No doubt the discrepancies between these paragraphs are designed to confuse and mislead. But it is Article 185 that will be produced in court (the CJEU – see below).
From Article 8 (of the Protocol)
The United Kingdom in respect of Northern Ireland may not initiate objection, safeguard or arbitration procedures provided for in provisions of Union law made applicable by this Protocol as far as these procedures concern the technical regulations, standards, assessments, registrations, certificates, approvals and authorisations issued by competent authorities of the Member State or by bodies established in Member States.
So we must forget about raising objections about anything that matters. Part of the punishment that the WA is primarily about.
From Article 14
Without prejudice to paragraph 4, the authorities of the United Kingdom shall be responsible for implementing and applying the provisions of Union law made applicable by this Protocol to and in the United Kingdom in respect of Northern Ireland.
… In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties in this respect.
Link this with Article 185 and we have the evidence that Juliet Samuel has misunderstood the backstop. To ensure that the UK will have no wriggle room, the authors (presumably not Mrs May, though she accepts it and wants her Parliament to do so too) produce this:
From Article 9
The United Kingdom shall establish or maintain an operationally independent authority (“the independent authority”).
Decisions of the independent authority shall produce in respect of and in the United Kingdom the same legal effects as those which comparable decisions of the European Commission acting under the Union State aid law provisions listed in Annex 8 to this Protocol produce within the Union and its Member States.
From Article 10
Where disputes arise in relation to the verification procedures of Article 9 which cannot be settled between the customs authorities requesting a verification and the customs authorities responsible for carrying out this verification, or where they raise a question as to the interpretation of this Annex, they shall be submitted to the Joint Committee.
To understand the significance of this last point we need to go back to the main parts of the WA, which sets up a Joint Committee with power over decisions made by the UK Parliament.
From Article 166
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…
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.
This is not about the withdrawal or about any transition period; this is intended to be a permanent feature carried forward into any future relationship agreement between the EU and UK.
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.
Again, in case the UK tries to wriggle. The WA allows for arbitration, except:
From Article 174
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.
As we said in Draft Withdrawal Agreement: A Fatal Flaw, it is more than likely that any dispute submitted by the UK will fall under one of these categories, particularly as the interpretation of Union law is within 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. There will be no wriggling out of this trap.
Sorry Ms Samuel, there is no escape from the jurisdiction of EU courts, which surely is as good a reason as any for continuing to reject the Withdrawal Agreement.