Will the year-long ‘Transition’ from formally leaving the EU be to an agreeable or disagreeable relationship? The answer depends at least on answers to these questions.
Question 1. Why did Johnson sign a bad withdrawal agreement (WA) and now wants to change it?
Parliament had rejected Theresa May’s bad deal three times but also refused to revoke the Fixed Term Parliaments Act, meaning no election was possible before 2022. So the UK remained in the limbo of Transition (‘a temporary state on the edge of hell’), possibly lasting another three years. And then what?
On the third occasion Boris and other leading Brexit supporters reluctantly voted in favour of May’s WA (fellow backbencher Jacob Rees Mogg told this writer that “the bad parts will fall away over time“, but he didn’t justify the claim). There was still no majority in favour of resolving anything and the Prime Minister resigned for having failed to deliver any form of Brexit and losing the support of her party..
To get selected for the final run-off in the leadership contest – decided by the Party membership – Johnson had to promise Tory MPs that he would avoid a ‘hard’ Brexit. There was no prospect of rebooting the negotiations, which meant he had to accept the Withdrawal Agreement (WA) largely as it was. He then needed to get a general election agreed from a minority position in the House of Commons against the Fixed Term Parliament Act – the Liberal Democrats eventually assented, giving him the majority he required.
Having achieved the premiership he then had to deal with the WA. In short order he got several modifications agreed by the UK Parliament and the EU, which included replacing the ‘backstop’ with a revised Northern Ireland Protocol. In other words, it was politics all the way.
Either he and his advisers did not spot the subtle dangers in the Protocol or he believed that he could not negotiate suitable changes with the EU in time; it is unlikely that we will ever know which it was.
It is hard to believe that an elected government of the UK hoped to persuade us that this was a good deal. It seems to have been signed by the UK on the assumption that there would be an agreement on the future relationship with the EU, finalised before the end of the transition period, which still looks uncertain as we write. The fact that the Government are now proposing to modify certain terms, through the Internal Market Bill (IMB), suggests that they may have woken up to its true nature.
Question 2. Is the EU’s outrage about the UK Government unilaterally overriding an international treaty hypocritical?
Ambrose Evans-Pritchard cited examples of the EU unilaterally overriding international agreements:
“The EU has systematically refused to comply with the judgments of the World Trade Organisation, flouting rulings on GMO crops, hormone beef, and Airbus subsidies, as if the matter were optional. It has repudiated the doctrine of legal supremacy and “direct effect” [see Q4], the very doctrine that the EU now asserts in the Withdrawal Agreement.”
Many others have produced examples of the arrogance with which the EU behaves in this context, harrumphing hypocritically about the UK having the temerity to adopt practices that the EU itself justifies through the use of judgements from the CJEU. In another example, the CJEU ruled that the EU could and should disregard an edict by the UN Security Council when it judged that the UN Charter (supreme in international law) conflicted with the EU’s constitutional order, otherwise knows as the Treaties.
Joe Biden takes his lead from Dublin in the dispute over the UK’s Internal Market Bill. The USA is cautious about signing international treaties in the first place, such as the International Criminal Court, the UN conventions on children’s rights and on women’s emancipation, and the International Convention on the Law of the Sea. It has walked away from the Paris Agreement on climate change, reduced funding for the WHO and is at odds with the WTO. It’s unlikely that Joe will reverse all these positions and thereby surrender control – his voters wouldn’t stand for it, so why should ours?
Question 3. Can the Right Honourable Members find another way to protect their own union from sabotage?
This question refers to the union of the four entities that form the United Kingdom. The question has been raised in the context of the IMB because that Bill has been presented by the Government as clarifying the Protocol on Northern Ireland, which, as it stands, is open to abuse should the EU wish to declare that goods transferred between Great Britain and Northern Ireland are “at risk” of being transferred to the Republic of Ireland and thus to the EU:
The position of the UK as a member of the EU was that “No customs duties shall be payable for a good brought into Northern Ireland from another part of the United Kingdom by direct transport” The Protocol adds the rider: “unless that good is at risk of subsequently being moved into the Union” and we know that it will be the EU itself that determines the risk:
“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.”
Again, what is “strictly required” will be decided by the EU, as will “any international obligations of the Union.”
“Article 12: 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.”
The UK “shall not act as leading authority…” means that we will be subservient to the EU’s judgements on any such risk assessment. The UK Government has sought to remedy this risk to the union of Great Britain and Northern Ireland through the IMB. Opposition to the Bill raised this question.
Question 4. What is ‘direct effect’ in EU law?
For example, “an obligation which has direct effect in the legal systems of the Member States”
Definition from IATE (European Union Terminology): a “measure created for certain Community acts which are directly applicable and do not have to be transposed beforehand into national law”
Much of the acquis communautaire (the complete collection of EU laws, regulations, directives, decisions, etc.) has, by the Treaties, to be approved by the Parliaments of the Member States for transmission into national law; this is not so in the case of obligations that have direct effect.
An example of something that has direct effect is Article 4 of the UK Withdrawal Agreement (Methods and principles relating to the effect, the implementation and the application of this Agreement):
“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.”
“Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.” (our emphasis)
The EU Treaties do not appear to use the term ‘direct effect’ but Article 297 of the TFEU has this, which illustrates the definition:
“Other directives, and decisions which specify to whom they are addressed, shall be notified to those to whom they are addressed and shall take effect upon such notification.”
Question 5. Why is the UK expected to relax its conditions for reaching an agreement in the few days remaining?
The existing fishing arrangements are a historic injustice, agreed to by a desperate Ted Heath at the insistence of a demanding and truculent French government. We have the same situation now but the UK is offering a gentle transition instead of an abrupt one. To follow Heath’s example would betray our deprived coastal communities.
Our Government, like every one of theirs, will need to deploy state resources creatively to recover the economy from the shattered conditions all have suffered. There are WTO rules on fair competition which are all the EU has to defend itself in many of its other vital trade relationships. Provided those limits are observed our endeavours must be under our control. But the EU fears competition and feels that it must block it, even though it says that the UK will not be successful outside the project.
The EU does not have an independent judiciary, its courts are mandated to further the interests of the Union. The UK no longer shares those interests (if it ever did). The WA and EU’s demands for an agreement on the future relationship seek to preserve the UK’s subservience to EU laws and the judgements of the CJEU.