The revised WA still contains many severely negative features. This is because the text of the NI backstop Protocol is to be revised, but unfortunately the actual WA text itself, as negotiated and serially capitulated by Theresa May, will be untouched.
The most important and damaging feature which remains is the long term subjection of the UK to rulings by the ECJ. At present, the ECJ is a multinational court in which we jointly participate. After we exit the EU, it will become an entirely foreign court. It will be an organ of the opposite treaty party with whom we may be in dispute, owing no loyalty at all to the UK. It is virtually unheard of in international relations for any sovereign independent state to submit the interpretation of its treaty obligations to the courts of the opposite treaty party, allowing them to be effectively re-written for the benefit of that party.
However, TM’s WA contains a clause (Art.174) which means that the nominally independent arbitration panel set up to decide disputes would have to refer any issues of EU law for decision by the ECJ, and moreover would be bound by the result. Where the dispute concerns such issues, this would reduce the arbitrators to being a post box to send the dispute on to the ECJ and a rubber stamp to formalise the ECJ’s reasons. The ECJ would be the effective decision maker.
This clause was originally imposed by the EU on the desperate former Soviet republics of Ukraine, Georgia and Moldova. It was successfully resisted by Norway and the other EEA States and most recently has been rejected again by Switzerland in the EU’s attempt to impose it as part of a new framework agreement. Dr Carl Baudenbacher, a Swiss lawyer who recently retired as president of the EFTA Court, has said ‘It is absolutely unbelievable that a country like the UK, which was the first country to accept independent courts, would subject itself to this.‘ Indeed, it is hard to understand why the UK which is so much bigger than Switzerland and far less dependent on trade with the EU, should be willing to succumb to this clause.
The clause in the WA would apply long term: for EU citizens’ rights, effectively in perpetuity, or at least for the lifetime of EU citizens in the UK and their children. Further, the revised PD commits the parties to including a similar clause in the long term relationship agreement with the EU, so it would be with us for ever. If level playing field clauses in the long term agreement are modelled on EU law, the clause would bite. It would convert obligations to follow EU laws as they objectively stand, in effect into obligations to follow unpredictable “reinterpretations” of EU laws by the ECJ in the future.
Secondly, the WA would still contain the so-called transition period. It is understood (although this is not reflected in the legal text) that Boris Johnson’s government would not agree to extend this period beyond December 2020. During this period, the UK would be subject to all EU laws, both those that exist now and those that are brought in during that period, but would no longer have a vote or veto.
This situation is highly dangerous for some industries in particular: financial services, who may be subjected to rule changes designed to force business such as Euro derivatives clearing from the City into Continental centres, and our fishing industry who will be vulnerable to further severe damage during the period before they can escape from the Common Fisheries Policy. Against that, it is hard to see what is now the justification for this over elaborate transition period when we are going to change to a free trade relationship with the EU instead of remaining in the customs union.
The third big problem in the WA which has not been addressed is that it imposes financial obligations on the UK which go well beyond the UK’s obligations under international law. The amount of this gratuitous over-payment is generally referred to as “£39bn”. In fact, the obligation is not defined in the WA as an amount of money, but as a series of vague forms of words which are open to interpretation. And in one of her maddest acts of capitulation of many, Theresa May agreed a clause under which the UK’s financial obligations are unilaterally decided upon by the ECJ instead of by a neutral arbitration mechanism. I predict that the eventual liabilities will end up a lot bigger than £39bn.
And this money will be unconditionally payable, whether or not the EU offers the UK a satisfactory long term trade agreement. There is just no linkage.
Fourth, the revised Northern Ireland Protocol would still impose an EU-law based legal regime on NI and create new administrative barriers to trade between GB and NI, albeit that goods imported to NI could avoid being subject to EU tariffs under a complex rebate or exemption system. More fundamentally, the consent mechanism for the continuation of EU laws over NI does not conform with the concept of the consent of both communities under the Belfast (Good Friday) Agreement. We intend to cover these complex issues in greater depth in another article.
So is it overall a good or bad deal?
In very important respects, this deal is much much better than Theresa May’s deal. But using that deal – utterly atrocious from end to end – as a flawed benchmark for comparison greatly flatters the Johnson deal.
If we ask whether is it a good deal compared with the deal which a competent government could have negotiated with the EU, the answer is undoubtedly “no”. The progress which has been made by a determined PM in forcing the EU to reopen the text which they previously insisted could not be reopened is proof that a similarly determined attitude throughout the negotiation process would have yielded much better terms for the UK.
The problem is that it is much more difficult to try to renegotiate an existing text than it would have been to get the right result at the more fluid stages of original negotiation.
This extract from an article by Martin Howe QC, Chairman of Lawyers for Britain, appeared in shortened form in the Daily Telegraph on 18 October 2019.