The UK Government has said that it wants to ‘clarify’ some terms of the Withdrawal Agreement and a bill to that effect is being discussed in Parliament. However, Her Majesty’s Government (HMG) has acknowledged that the bill as proposed will transgress international law.
In our recent post [1] we made a guess at why this is occurring.
The word ‘sovereignty’ has begun buzzing in our ears again (we referred briefly to this notion in our Sovereignty post before the Referendum [2]). The term means something along the lines of ‘the right and the freedom of a nation to act as it chooses’. Once the term is defined in some such way discussions of the abstract idea itself become pointless; it makes better sense to focus on the meaning in practice.
We know that ‘sovereignty’ is constrained in practice because every nation is subject to international law as well as to any agreements it has, for example in trade, with other nations. The important question for this blog’s authors is whether the future relationship between the UK and the EU will constrain either the right or the freedom of the UK to act as it chooses, rather than to be subject to constraints imposed by the EU.
The Withdrawal Agreement (WA) reached between the new UK Government and the EU, in 2019 [3], defines the Transition Period of Brexit, which is due to end on 31 December 2020, with or without any formal agreement on the future relationship. It includes the divorce bill and requires the UK to continue to live as if still a member but without representation and extends to the future relationship, which both sides would attempt to agree in “good faith”.
There are terms in the WA that appear to tie the UK under the remit of the Court of Justice of the European Union (CJEU) beyond Transition. This is what HMG claims is to be clarified by the new bill before Parliament.
We covered the draft WA (a previous version) in considerable detail in our post of December 2018 [4] and we now review our arguments in the light of the revised version, to see if we can understand the post-transition constraints that it implies. Here we quote from the revised WA, with our (appropriately revised) comments from the previous post.
Throughout its 541 pages of typically tortuous wording the EU repeatedly demands legal compliance with its rules. Our review is correspondingly lengthy – sorry – but even a skim through this will show the reader the intention.
From Article 36: Development of law and adaptations of Union acts
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.
This appears to confirm our belief that the EU intends to retain significant features of the WA in any agreement on the future relationship between the UK and the EU. If there is no agreement then some of these features may continue, keeping the UK in thrall to the EU. Article 166 gives the Joint Committee the authority to overrule (“disapply”) UK legislation and thus to impose terms of the WA, including Article 36, beyond the end of the transition period.
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.
After being informed, the Joint Committee will have the right to overrule such changes, as it sees fit. Is there any way, without new legislation or at least clarification, that HMG (on behalf of its sovereign Parliament) can dispute or appeal a decision of the Joint Committee? From what follows it seems not.
In making its assessment, the Joint Committee shall consider in good faith the scale of the changes referred to in the first subparagraph of this paragraph, as well as the importance of the continued good functioning of Regulations (EC) No 883/2004 and (EC) No 987/2009 between the Union and the United Kingdom and the importance of there being a competent State in relation to individuals within the scope of Regulation (EC) No 883/2004.
The expression “in good faith” seems to be crucial to HMG’s case; this would probably have to be tested quickly in court, but whose court?
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.
HMG has agreed that the UK has no recourse outside the Withdrawal Agreement, which is overseen by the Court of Justice of the European Union (CJEU)..
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 (and after) 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.
HMG 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 in the ‘negotiations’ (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, though in fact the EU wants British courts to take account of CJEU precedents (see Article 5 below); the CJEU will continue to decide for us. The CJEU 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 HMG wanted 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 has “handed down after the end of the transition period” – so CJEU judgements made after the UK becomes ‘sovereign’ must continue to affect judgements made in UK courts. (the very expression typifies EU autocracy).
From Article 5:
This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.
This reads as if “the principle of sincere cooperation” is written into Union law, whatever it might mean in practice; which is that the EU will ‘cooperate sincerely’ to make sure that the UK will never pose any threat to the EU commercially or politically. We wonder how this ‘principle’ would stand up in a truly independent court – or in arbitration
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 in accordance with the requirements laid down in Article 258 TFEU or the second subparagraph of Article 108(2) TFEU, as the case may be. The Court of Justice of the European Union shall have jurisdiction over such cases.
In this Article the post-transition continuity is explicit. These failures by the UK before the end of Transition can be pursued by the EU if it chooses for up to 4 years after.
2. If the United Kingdom does not comply with a decision referred to in Article 95(1) of this Agreement, or fails to give legal effect in the United Kingdom’s legal order to a decision, as referred to in that provision, that was addressed to a natural or legal person residing or established in the United Kingdom, the European Commission may, within 4 years from the date of the decision concerned, bring the matter to the Court of Justice of the European Union in accordance with the requirements laid down in Article 258 TFEU or the second subparagraph of Article 108(2) TFEU, as the case may be. 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.
This too indicates clearly the intention of the EU to keep the UK as a harmless vassal state under the jurisdiction of the CJEU.
From Article 89: Binding force and enforceability of judgments and orders
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.
2. If, in a judgment referred to in paragraph 1, the Court of Justice of the European Union finds that the United Kingdom has failed to fulfil an obligation under the Treaties or this Agreement, the United Kingdom shall take the necessary measures to comply with that judgment.
In summary, under this Withdrawal Agreement the United Kingdom will not exit the European Union but will move to a new, and inferior, status under the thumb of the Union.
Meanwhile meaningless negotiations continue on the future relationship (meaningless because of the intrusion of the WA into any post-transition future and because of the ‘negotiating’ mandate). While we cannot know at this stage what will be the terms, if any, of a future agreement between the EU and the UK, there are clues in the WA as to the intentions of the EU in this regard.
The rest of the document goes into the details and does nothing to shake our belief that this is a very bad deal for the UK – by design. It is hard to believe that an elected government of the UK wanted to persuade us that this is a good deal. It seems to have been agreed by the UK on the assumption that there would be an agreement, which is naive considering what had occurred already. How can HMG’s lawyers have missed this, or were they complicit in undermining UK sovereignty?
The fact that HMG is now proposing to modify some terms suggests that they may have woken up to its true nature. In fact it claims it was alerted by Barnier threatening to interpret the terms of WA to prevent Northern Ireland from importing any agricultural products from Britain without the EU’s agreement which would result in a hard, digital border in the Irish Sea to check the ‘paperwork’, which leads neatly onto the following:
From the WA PROTOCOL ON IRELAND/NORTHERN IRELAND
RECOGNISING that Irish citizens in Northern Ireland, by virtue of their Union citizenship, will continue to enjoy, exercise and have access to rights, opportunities and benefits, and that this Protocol should respect and be without prejudice to the rights, opportunities and identity that come with citizenship of the Union for the people of Northern Ireland who choose to assert their right to Irish citizenship…
This, “come with citizenship of the Union”, presumably doesn’t refer to the Union that is the UK. But does it imply that only the rights of people with dual British and Irish citizenship will be respected?
Article 1: 1. This Protocol is without prejudice to the provisions of the 1998 Agreement in respect of 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.
The “the principle of consent” seems to refer to the Northern Ireland Executive, but doesn’t tell us what happens when that is not operational. How is consent to be ascertained if not democratically? (See our comment on Article 18 below.)
Article 4: Accordingly, nothing in this Protocol shall prevent the United Kingdom from including Northern Ireland in the territorial scope of any agreements it may conclude with third countries, provided that those agreements do not prejudice the application of this Protocol.
As we must expect by now, the Protocol (and therefore the WA) rules over all.
Article 5: 1. No customs duties shall be payable for a good brought into Northern Ireland from another part of the United Kingdom by direct transport unless that good is at risk of subsequently being moved into the Union, whether by itself or forming part of another good following processing.
(Our emphasis, here and below) This is very dangerous because potentially any good can be determined as “at risk” and we know that it will be the EU itself that determines the risk. This appears to be a trap set in the event that no deal is agreed by the time the transition period ends.
2. Before the end of the transition period, the Joint Committee shall by decision establish the criteria for considering that a good brought into Northern Ireland from outside the Union is not at risk of subsequently being moved into the Union.
(See [4] for our comments on the Joint Committee.) This Article confirms our suspicion that all goods will be considered to be at risk unless the JC shall so decide.
Article 6: 1… Provisions of Union law made applicable by this Protocol which prohibit or restrict the exportation of goods shall only be applied to trade between Northern Ireland and other parts of the United Kingdom to the extent strictly required by any international obligations of the Union.
As always, what is “strictly required” will be decided by the EU.
Article 12: 4. …the institutions, bodies, offices, and agencies of the Union shall in relation to the United Kingdom and natural and legal persons residing or established in the territory of the United Kingdom have the powers conferred upon them by Union law. In particular, the Court of Justice of the European Union shall have the jurisdiction provided for in the Treaties in this respect.
5. Acts of the institutions, bodies, offices, and agencies of the Union adopted in accordance with paragraph 4 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.
So the UK will continue to be subject to EU legislation, though without having a say in its formation.
Article 13: 2. Notwithstanding Article 4(4) and (5) of the Withdrawal Agreement, the provisions of this Protocol 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.
6. Authorities of the United Kingdom shall not act as leading authority for risk assessments, examinations, approvals and authorisation procedures provided for in Union law made applicable by this Protocol.
That was clear enough from Article 5 (2) above.
8. Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes. Once a subsequent agreement between the Union and the United Kingdom becomes applicable after the entry into force of the Withdrawal Agreement, this Protocol shall then, from the date of application of such subsequent agreement and in accordance with the provisions of that agreement setting out the effect of that agreement on this Protocol, not apply or shall cease to apply, as the case may be, in whole or in part.
We learn from “parts of this Protocol which it supersedes” that the parts that are not superseded will continue to apply.
Article 16 (Safeguards): 1. If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
3. Safeguard and rebalancing measures taken in accordance with paragraphs 1 and 2 shall be governed by the procedures set out in Annex 7 to this Protocol.
This sounds OK, until we read Annex 7 below. And we know who will decide what “leads to serious economic, societal or environmental difficulties”, and doesn’t.
Article 18 (Democratic consent in Northern Ireland): 1. Within 2 months before the end of both the initial period and any subsequent period, the United Kingdom shall provide the opportunity for democratic consent in Northern Ireland to the continued application of Articles 5 to 10.
2. For the purposes of paragraph 1, the United Kingdom shall seek democratic consent in Northern Ireland in a manner consistent with the 1998 Agreement. A decision expressing democratic consent shall be reached strictly in accordance with the unilateral declaration concerning the operation of the ‘Democratic consent in Northern Ireland’ provision of the Protocol on Ireland/Northern Ireland made by the United Kingdom on 17 October 2019, including with respect to the roles of the Northern Ireland Executive and Assembly.
Do we believe that in the absence of an operational Northern Ireland Executive any decision made by HMG will be regarded as being “strictly in accordance with…” anything?
5. For the purposes of this Article, the initial period is the period ending 4 years after the end of the transition period. Where the decision reached in a given period was on the basis of a majority of Members of the Northern Ireland Assembly, present and voting, the subsequent period is the 4 year period following that period, for as long as Articles 5 to 10 continue to apply. Where the decision reached in a given period had cross-community support, the subsequent period is the 8-year period following that period, for as long as Articles 5 to 10 continue to apply.
This is followed by 100 pages of Annexes, mostly listing the EU regulations that apply to this Protocol.
ANNEX 7 (Ref. Article 16, above):
1. Where the Union or the United Kingdom is considering taking safeguard measures under Article 16(1) of this Protocol, it shall, without delay, notify the Union or the United Kingdom, as the case may be, through the Joint Committee and shall provide all relevant information.
2. The Union and the United Kingdom shall immediately enter into consultations in the Joint Committee with a view to finding a commonly acceptable solution.
3. The Union or the United Kingdom, as the case may be, may not take safeguard measures until 1 month has elapsed after the date of notification under point 1, unless the consultation procedure under point 2 has been concluded before the expiration of the state limit. When exceptional circumstances requiring immediate action exclude prior examination, the Union or the United Kingdom, as the case may be, may apply forthwith the protective measures strictly necessary to remedy the situation.
This reference to “safeguard measures” takes us neatly into a review of the controversy surrounding the revised Parliamentary Bills, which we pick up in the next two posts [5], [6].
[1] Breaking News
[2] Sovereignty
[3] The 2019 WA:
This EU Won't Work 