Round and Round the Mulberry Bush

How the Political Declaration destroys the current Withdrawal Agreement that Parliament has voted to re-introduce

Parliament-1Parliament has voted (52% to 48%: didn’t they complain that was too small a margin after the Referendum?) to deny Boris his ‘no deal’ exit. Actually it wasn’t his; Theresa May’s version was “no deal is better than a bad deal” Now the bad deal is back, still smelling of rotting fish (though caught swimming in UK waters).

As the Withdrawal Agreement (WA) is nearly a year old (November 2018) we thought we should remind you of analyses made soon after it was published (but before the third rejection by Parliament). BrexitCentral has a useful and clear summary of the Political Declaration (PD), from an anonymous civil servant:

https://brexitcentral.com/political-declaration-not-vague-wish-list-attempt-bind-uk-eu-policies/

The section titled Customs and the Irish border is particularly revealing as even the EU acknowledges that there is no need for the ‘backstop’ that has caused so much controversy. The full analysis linked at the end of the summary of the PD (29 pages of detailed notes, paragraph-by-paragraph) is well worth reading.

The EU therefore admits in the Political Declaration that there is no need for the backstop or a customs union to avoid a hard border in Ireland.” (from the summary) and:

Since the EU acknowledges that trusted trader schemes and customs facilitations remove the need for a hard border in NI/EI, they therefore also negate the need for an inescapable ‘backstop’” (from the analysis).

Political DeclarationThe Political Declaration itself can be downloaded from here [1].

We have devoted several posts, and a lengthy analysis, to the WA [2]. If you want a legal opinion, a rigorous one has been provided in Briefings for Brexit by Politeia, which can be found here [3].

“…the EU has set its face against any ‘reopening’ of the WA. It extracted a formal commitment from Mrs May not to try to reopen it as a condition of the European Council decision to grant an extension of the Article 50 ‘two year negotiating period’ to 31 October 2019.”

The WA “would perpetuate the doctrines of ‘direct effect’ and supremacy of EU law over UK law (including new EU laws on which the UK would have no voice or vote), under which the UK courts are required to strike down Acts of Parliament if found to be inconsistent with EU law or even vaguely drafted treaty provisions. The doctrines apply to the provisions of the WA itself and also any long term relationship agreement with the EU that would replace it.”

The WA would perpetuate the jurisdiction of the ECJ either directly, or via a backdoor mechanism modelled on the EU’s agreement with Ukraine, under which the supposedly neutral arbitral tribunal set up under the WA would be bound on matters of EU law by decisions of the ECJ. Meanwhile the ECJ itself would have become an entirely foreign court with no post- Brexit British judge” (see the Government’s version below).

WA rejectedIt’s hard to find anyone (other than Mrs May’s government) arguing coherently for the benefits of the WA; most reports we have found are notionally neutral, offering explanations but giving implicit support by not discussing the reasons for its rejection by the UK Parliament—let alone why the rest of us should reject it (though we, the people, are not likely to be asked). Indeed, Parliament doesn’t even want to let us elect a new Parliament until it has ensured we get a deal or we remain, though it knows the only deal will be the WA, or very close to it, especially as the EU is no longer under any pressure.

At least one law firm suggested that the third vote, offering to separate the PD from the WA, would have failed anyway because the Withdrawal Act of 2018 explicitly ties the two together, as does the EU:

As for the link between the Withdrawal Agreement and the Political Declaration…it can be made clear that these two documents, while being of a different nature, are part of the same negotiated package.” (Quoted early in the BrexitCentral summary, above.)

Perhaps arguments in favour of the WA simply don’t exist—the opposing arguments seem compelling.

The UK Government at the time offered us this (among other supporting documents, which seem to be no more than Government propaganda), which wilfully ignore or misrepresent the issues raised by the ‘civil servant’. See, for example, slide 11, Resolution of disputes, from [4]:

Resolution of disputes through a Joint Committee and independent arbitration, rather than the CJEU as the EU originally proposed, with references to the CJEU only about questions of interpretation of EU law…”.

Compare that with Article 174 of the WA:

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.

TrappedSo the UK will be bound by decisions of the EU’s court on laws it had no say in introducing. These laws cover such things as state subsidy, the environment and social policy. They 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. What is the point of leaving if it offers the UK no advantage and no representation? Is this what Labour MPs mean by “respecting the result of the Referendum” (from the 2017 manifesto on which they were elected)? And why would they reintroduce the WA now they have banned no deal and then campaign against it in a general election? (See If You Don’t Like the Answer, Change the Question.). And they have the nerve to call Boris Johnson a liar.

Slide 35 has ten ‘bullet’ points, including these two:

Taken together, this package would mean that the future relationship will deliver benefits across a range of areas…End to the jurisdiction of CJEU in the UK…An end to the direct effect of EU law”.

The final slide, 36, has six dubious points, including:

WA is overseen by a Joint Committee and an independent arbitration panel, rather than the CJEU.”

Are you prepared to trust the future of your country to any of Parliament, the Government or the EU?


[1] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/758556/22_November_Draft_Political_Declaration_setting_out_the_framework_for_the_future_relationship_between_the_EU_and_the_UK__agreed_at_negotiators__level_and_agreed_in_principle_at_political_level__subject_to_endorsement_by_Leaders.pdf (this is the UK Government version) or here:

https://ec.europa.eu/commission/publications/political-declaration-setting-out-framework-future-relationship-between-european-union-and-united-kingdom_en (the official EU version—these appear to be the same document).

[2] Draft Withdrawal Agreement: a Fatal Flaw (04/12/2018)

A Withdrawal Agreement (18/01/2019)

Withdrawal Method-2 (25/06/2019)

The Undead Deal? (27/08/2019)

[3] http://www.politeia.co.uk/wp-content/Politeia%20Documents/2019/13.06.19%20Howe%2C%20Aikens%20%26%20Grant/Avoiding%20the%20Trap%20-%20How%20to%20Move%20on%20from%20the%20Withdrawal%20Agreement%2C%20Martin%20Howe%2C%20Richard%20Aikens%20and%20T.%20D.%20Grant.pdf

[4] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759023/25_November_Explanatory_slides_for_the_Withdrawal_Agreement_and_Political_Declaration_on_our_future_relationship_with_the_EU.pdf

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