it's more than just the backstop, boris.

There are rumors that Boris Johnson is considering a re-packaged version of the deal negotiated by his predecessor, minus the much-discussed Irish ‘backstop’. But it's more than just the Backstop which makes the Withdrawal Agreement unsuitable:

1. Restricts Parliamentary independence - The ECJ governs the entire Agreement and EU law takes precedence - binding future British Parliaments and requiring judges to overturn laws passed by the British Parliament if the ECJ considers them to be inconsistent with obligations in the Withdrawal Agreement.  (Articles 4, 87, 89 and 127).

 

2. Replaces one Commission with another - A new body with ‘powers equivalent to those of the European Commission’ (Article 159) and a Joint Committee (Article 164).

 

3. Prevents independent arbitration - The UK is expressly denied the right to take any dispute about the agreement to the international courts and must accept the exclusive jurisdiction of the Arbitration Panel (half of whom are appointed by the EU) and, via it, judgments of the ECJ (Articles 168, 174).

 

4. Grants EU officials immunity - The EU and its employees are to be immune to UK regulations, criminal law and exempt from tax (Articles 101, 104, and 106-116).

 

5. Imposes a gagging order on the UK - The UK must keep all EU information confidential but the EU can use UK information as it sees fit. (Articles 74 and 105).

 

6. Leaves the UK with EIB risks but no profits - We abandon rights to not only past and future profits made from our investment in the EIB, but also our share of assets of the EIB and yet remain liable for contingent liabilities of up to 500bn euros of guarantees given to the EIB via the EU budget (Articles 143, 147, 150).

 

7. Prevents an independent trade policy - The Political Declaration requires the UK to “build on the single customs territory provided for in the Withdrawal Agreement” (para 23) consequently the UK will never be able to set its own tariffs for goods - the reduction of which is the major incentive third countries have to do a free trade deal with the UK. There is also the additional problem that there is no definition in the Withdrawal Agreement for the word “goods” and so its scope will be interpreted as the ECJ determines from time to time (Article 127).

 

8. Prevents an independent tax policy - The Political Declaration expects the future relationship to impose EU State Aid rules and “relevant tax matters” on the UK (para 79), the Withdrawal Agreement applies EU law to the UK during the transition period and any extension to it (Articles 127 and 132) - allowing the EU to sue the UK, including infringement proceedings for: as yet unidentified breaches of State Aid rules (which can take the form of tax exemptions); and billions in unpaid VAT on commodity derivative transactions dating back to the 1970s (Articles 86, 93 and 184).

 

9. Imposes EU public procurement rules - at least during the transition period and any extension to adopted by the Joint Committee (Articles 75-78, 127 and 132) and then permanently under the Political Declaration (Article 184).

 

10. Prevents independent military action - If the EU decides UK military action is not in its interests the EU can agree a contradictory policy which we could not act against (Article 129(3)(6)).

 

11. Requires contributions to the EU Defence Agency - despite making payments to the agency during the transition period (and any extension adopted by the Joint Committee under Article 132) British troops in EU battlegroups will not be led by British staff officers (Articles 129(7) and 156-157).

 

12. Restricts Foreign Policy - The UK will be bound by international agreements concluded by the EU despite having no influence in their negotiation during the transition period (and any extension adopted by the Joint Committee under Article 132) and must “refrain, during the transition period, from any action... which is likely to be prejudicial” to the interests of the EU (Article 129).

 

13. Demands Payment of a sum to be decided by the EU - possibly 39bn according to HM Treasury but as that amount can’t anticipate EU fines and contingent liabilities it’s just a minimum figure (Articles 138-144, and 152-155).

 

Benjamin Wrench,

Barrister

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