The Undead Deal?

Boris Johnson says he aims to get a deal with the EU; EU leaders say there’s a withdrawal deal (WA) “on the table” that they will not change.

Johnson says that deal is unacceptable as it stands because of the Irish backstop and is prepared to leave without a deal if necessary. There doesn’t seem to be any room in between for compromise, but it is possible that something close to the WA may resurface. We need to remember why the WA is no good at all and should be rejected again, as it has been three times already by the Westminster Parliament. Latest news is that Johnson has said that “a deal is going to be touch-and-go”.

We had an opportunity in June this year to ask Jacob Rees-Mogg, now Leader of the Commons, why he had been willing to accept the WA minus the Backstop (albeit reluctantly) at the third time of asking Parliament. JR-M replied that the other problem issues would “fall away” over time (he’s assuming, as we cannot, that the WA applies only and strictly to any transition period). Later we put the same question to Bill Cash MP who has always voted against the deal; he said his good friend Jacob had been wrong about this. … What do you think? Here are the facts, as we find them.

In summary we conclude that the WA proposes neither a proper withdrawal from the EU nor a satisfactory legal basis for a transition to an unspecified future relationship between the UK and the EU. A major problem is the impositions this WA makes on any such future relationship; they indicate clearly the EU’s intentions, which are to keep the UK locked into an unfavourable customs union and so to deny us the opportunity that Brexit should give to recover a successful independence. What follows has been selected and updated from our previous posts on this topic. Pointers to the evidence are in the footnotes below.

The proposed Joint Committee will be able to impose laws on the UK and override decisions of the UK Parliament. [1] Article 166 has severe implications for the sovereignty and independence of the UK during and after the withdrawal and transition period. Superficially it appears to offer benign cooperation but it dramatically undermines UK democracy by giving unelected officials authority over the elected Parliament and Government at Westminster.

The Article states clearly that decisions of the Joint Committee will override any non-compliant decisions of the UK Government. So, at a general election UK voters would not be electing a supreme representative legislature, which has been at the heart of our democracy for centuries, until the UK joined the EU, 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.

Although an independent arbitration panel can settle issues that the Joint Council can’t agree on, it is restricted in the areas it can arbitrate. Anything affecting EU laws and regulations must be decided by the CJEU. Thus under any such agreement—withdrawal, transition or beyond—the UK will remain under the ultimate jurisdiction of the EU [2] but with no say on its laws and no representation amongst its judges. This could, and surely would, be used to counter any advantage the UK might threaten to build in any area of interest to the Union or to undermine any advantage it already has. (For example, the City should fear for its survival under these conditions.)

The EU will incorporate significant features of the WA 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 WA, including in particular Article 36 [3], beyond the end of the transition period. It confirms the precedence of Joint Committee decisions over the activities of both UK and EU governments—though who can believe that it will be allowed to overrule the EU? Note that the final arbiter would be the CJEU, which is required by the Treaties to further the causes of the Union. [1], [3] The UK will remain bound by membership terms as they are at present and as they may be modified during the transition period.

By this WA the previous UK government 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 Joint Committee will have to refer many issues to the ECJ for resolution. The laws will undoubtedly be changed to the UK’s disadvantage in the transition period, without UK 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).

The phrase [4], “shall have due regard to”, is suitably squishy but they mean to continue to override UK law (why else would they use the phrase?), so fundamentally we will not be leaving the EU since we will be tied by any arbitrary rules it says will be “handed down” (the very expression typifies EU autocracy).

We cannot know at this stage what will be the terms of a future Agreement between the EU and the UK but there are convincing clues in this WA to the intentions of the EU in this regard. The point is made in many Articles ([5] gives one example) that indicate explicitly that EU laws, regulations, and so on, will continue to apply to the UK “after the end of the transition period”. Article 92 is headed “Ongoing administrative procedures” [6] so the “Ongoing” and the absence of any reference to the transition period indicates that the EU intends to manage indefinitely the UK’s “compliance with Union law”. The UK will be (mis-)treated as a semi-detached ‘member’ and potential competitor. It remains an open question whether such legal binding is enforceable in practice, but the UK should not sign up to this or anything that resembles it.

We don’t think we need to say more on this, though the WA does so, repeatedly. Much that follows confirms that the UK would not truly leave the European Union under this Agreement. They clearly expect the UK to remain bound by the treaties (specifically TFEU in this case) after ‘withdrawing’. [7]

We can be sure who will decide what “facts [will have] occurred before the end of the transition period”. As we keep reminding ourselves, the ECJ will continue to rule: is that OK? [8]

The draft Withdrawal Agreement to this point is supposed to cover the withdrawal itself and any transition period that is agreed. We have seen that much of what it covers intrudes into whatever relationship is negotiated beyond this period. The protocols that follow and Article 185 [9] imply that the Withdrawal Agreement will not expire until it is overtaken by its formal termination; the date of which is not given.

The introductory paragraph of the Protocol [10] (RECALLING) has the only reference in the WA to “backstop solution” and it is not clear whether the term applies, in whole or in part, to this Protocol, during the Transition Period and/or beyond. We assume that “backstop solution” means this Protocol, which will endure beyond the transition.

The next paragraph (HAVING REGARD to) may give a clue to the EU’s intentions with regard to the future relationship. In the first paragraph 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 ambiguities between these paragraphs are deliberate, so people will pick the one they want to believe.

This draft withdrawal agreement makes it possible for the EU to impose many sorts of restrictions on the behaviour of the UK, not only during the transition period but beyond it and into any future agreement on the relations between the UK and the EU. This WA cannot be ‘tweaked’ to make it acceptable. It has been composed fully in the interests of the EU (as its leaders see these interests) and against the interests of the UK as a would-be independent, possibly competitive, nation.

In summary, under this Withdrawal Agreement the United Kingdom will not leave the European Union but will move to a new, and inferior, status under the thumb of the Union and its judicial arm. Just about every article is an insult and an attack on the freedom of Britain.

That is our interpretation, we would welcome alternative views via Comments and will review them fairly.

[1] See The Withdrawal Method-2 and linked posts, particularly from A Withdrawal Agreement (WAG), Article 166 (WAG para. 10) and Article 174 (WAG para. 22)

[2] See Unnatural Justice

[3] Draft Withdrawal Agreement: a Fatal Flaw (DWAG). Article 36 Development of law and adaptations of Union acts (p.64) (DWAG para. 9)

[4] From The Method in their Withdrawal Madness (‘Madness’, linked from DWAG para. 2)

Part 1 Common Provisions, Article 4 (Madness page 1) has sub-paragraph 5:

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.

[5] From The Method in their Withdrawal Madness (‘Madness’, linked from DWAG para. 2)

Part Three, Title VII, Data and Information Processed or Obtained before the end of the Transition Period, or on the basis of this Agreement (Madness – page 5)

From Article 71 (p.128):

[…](b) are processed in the United Kingdom after the end of the transition period on the basis of this Agreement. 
(our emphasis)

[6] From Article 92

1. The institutions, bodies, offices and agencies of the Union shall continue to be competent for administrative procedures which were initiated before the end of the transition period concerning:
(a) compliance with Union law by the United Kingdom, or by natural or legal persons residing or established in the United Kingdom

[7] From Article 95

1. Decisions adopted by institutions, bodies, offices and agencies of the Union before the end of the transition period, or adopted in the procedures referred to in Articles 92 and 93 after the end of the transition period, and addressed to the United Kingdom or to natural and legal persons residing or established in the United Kingdom, shall be binding on and in the United Kingdom.
3. The legality of a decision referred to in paragraph 1 of this Article shall be reviewed exclusively by the Court of Justice of the European Union in accordance with Article 263 TFEU.

[8] From Article 98

2. Administrative cooperation procedures between a Member State and the United Kingdom set out in Annex VI that are launched within a period of 3 years after the end of the transition period but concern facts that occurred before the end of the transition period shall be completed by that Member State and the United Kingdom in accordance with the relevant provisions of Union law.

[9] From Article 185 (Madness page 13)

Parts Two and Three, with the exception of Article 19, Article 34(1), Article 44, and Article 96(1), as well as Title I of Part Six and Articles 169 to 181, shall apply as from the end of the transition period.
The Protocol on Ireland/Northern Ireland shall apply as from the end of the transition period, with the exception of the following provisions of that Protocol that shall apply as from the entry into force of this Agreement: (followed by a list of exceptions)


See Article 1 (Madness – page 14)

1. This Protocol is without prejudice to the provisions of the 1998 Agreement regarding the constitutional status of Northern Ireland and the principle of consent, which provides that any change in that status can only be made with the consent of a majority of its people.

This is cheeky, to put it politely. The EU never does anything “with the consent of a majority of its people”, as its constitution (the Lisbon Treaty in effect) does not provide for such democratic input.

4. The objective of the Withdrawal Agreement is not to establish a permanent relationship between the Union and the United Kingdom. The provisions of this Protocol are therefore intended to apply only temporarily

However, compare this with Article 185 above [9]. Which do you think they mean to apply?

Annex 4, Part One, Taxation

See Article 1 (Madness – page 14)

 measures that are ‘harmful’ will be decided by the Union. This will enable the EU to curb any inclination of the UK to implement tax measures that may benefit UK companies preferentially (such as free ports).

See Article 2 (Madness – page 16)

This commits the UK to whatever standards the EU dictates during the Transition Period (when the UK has no say in them).


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