After all the Remainer legal chicanery, I’ll be closely monitoring the next stage of talks with Brussels
27 January, 2020
by Martin Howe QC
Theresa May’s Withdrawal Agreement must be the worst international agreement ever to have been ‘negotiated’ by the United Kingdom – if you can call it a negotiation at all. Article after article contains gratuitous surrenders to the EU, where it does not embody sheer unadulterated technical incompetence by British officials – such as agreeing clauses in the customs union terms under which UK exporters would need to take paper customs forms to HMRC for physical stamps to be applied, when electronic customs forms have replaced paper throughout the EU for decades.
Have no doubt that it would have been an unmitigated catastrophe for the country had Parliament agreed that the UK should ratify Theresa May’s agreement. It would have locked us into a vassal state rule-taking relationship with no legal escape route, which would have completely destroyed the purpose of Brexit by throwing away the freedom Brexit gives us as a country to make our own laws and to chart our own course in global trade.
One day before too much time has passed, we shall need a Truth Commission to find out exactly why – and by whom – the clauses of this dreadful agreement came to be accepted by the UK. The more charitable view is that this was the result of grotesque and sustained incompetence. A less charitable view is that there were influential actors at work who intended to undermine the future independence of the UK in order to force the UK into a subservient relationship with the EU from which the only escape route would be to go back to being an EU member state.
But I am proud that we at Lawyers for Britain played our part in highlighting the dreadful legal problems in this agreement, and in refuting the May Government’s desperate attempts to use legal chicanery to pretend to Parliament that there would be a legal escape route from being locked into this agreement if we had ratified it.
Theresa May’s blind determination and repeated attempts to ram through her terrible deal wore down the resistance of many good Leave-supporting people. The nadir was in Spring 2019 when many had reached the despairing conclusion that they would have to back Theresa May’s deal as the only way to secure Brexit. This is not an assessment with which my colleagues at Lawyers for Britain or I could agree. As lawyers, we were very conscious of the inescapable nature of the trap into which her Withdrawal Agreement would have bound our country.
Fortunately – thanks to the ERG’s ‘Spartans’, the DUP and with some unintentional assistance from Dominic Grieve and a few of his irreconcilable Remain-supporting allies – the dreadful Withdrawal Agreement was rejected by the House of Commons for the third, or even fourth or fifth (depending on how you count it) time, and the country was saved from a terrible fate.
The replacement of Theresa May with Boris Johnson as Prime Minister demonstrated how much could be achieved in a short time with the right approach – determined to regain our freedom and make a success of Brexit.
We now have a stunning General Election victory ‘in the bag’ and are looking forward with confidence to formally leaving the EU on 31st January. But it is too easy to forget the tortuous and narrow path which Boris Johnson and his Government had to tread in order to get here, hemmed in by the EU on one side and by a disloyal parliamentary majority and a hostile judiciary on the other. Any slight misstep or different decision along the way could have ended in disaster for the Government and for Brexit.
That is why I am forgiving of the Prime Minister for having concluded a Withdrawal Agreement which, despite the removal of the original Northern Ireland backstop Protocol, still contains many shockingly bad provisions left over from Theresa May’s negotiations.
The removal or neutering of these provisions – most importantly, those which provide for long-term binding ECJ jurisdiction over the UK – remains unfinished business for the next stage of the negotiations with the EU. Boris Johnson has made an excellent start by formally and legally ruling out any extension to the transition period.
Nonetheless it is clear from the EU’s latest attitude that there will be a major battle to reach a relationship with the EU which will give us back control of our laws, money, borders and international trade from 1st January 2021. Despite the political and legal significance of us formally leaving the EU on 31st January, we will not get back control of any of these things until the all-enveloping so-called ‘transition’ period ends on 31st December.
So there is still legal work to be done, and Lawyers for Britain will not be declaring “job done” until we are confident that we have actually secured the return to this country of independent democratic control over our laws, money, borders and international trade.