https://brexitfacts.blog.gov.uk/2018/11/23/response-to-city-am-article-from-brexit-to-brino-the-10-capitulations-of-theresa-may/

Response to City A.M. article: ‘From Brexit to Brino: The 10 capitulations of Theresa May’

Our response to claims made by City A.M. in their article 'From Brexit to Brino: The 10 capitulations of Theresa May’ - published on 22 November 2018

Claim

First, Brexit will necessitate the UK remaining in the customs union (or something very much like it), unless the EU gives us permission to leave or agrees a free trade agreement with us. Either way, the UK will not have control of when or whether it leaves.

Response

The UK is leaving the Customs Union. The government’s policy, as set out in the White Paper, is an ambitious customs arrangement that allows for frictionless trade, protecting jobs and delivering for the UK economy, as well as the operation of an independent trade policy.  

On leaving the backstop: there is also an explicit review clause built into the agreement, enabling the backstop to be terminated where we agree it is not necessary to meet its objectives.

Claim

Second, the draft withdrawal agreement will prevent us from signing free trade deals with third-party countries – again, unless the EU agrees its own free trade deal with us, which releases us from any backstop obligations. Forget deals with the US, China, and India.

Response

The text of the Political Declaration on our Future Relationship makes clear that our new customs arrangements will be in line with the principles set out in the PD, ensuring the UK can develop our independent trade policy.

Many of our partners including Japan and Australia have said publicly that they look forward to signing trade agreements with us, and, following the UK’s consultations earlier this year, the US and New Zealand are currently consulting on what these agreements will look like.

In the backstop, we would also be able to negotiate, sign and ratify Free Trade Agreements with rest of world partners and implement all elements not covered– such as those aspects related to services, procurement and investment.

Claim

Third, in addition to remaining in the customs union, the UK will be legally bound to “ensuring a level playing field” and an “alignment of rules”, putting an end to any thoughts of using Brexit to enhance the regulatory competitiveness of the UK economy to attract foreign direct investment.

Response

Commitments to open and fair competition are fundamental to all trading relationships. The Protocol sets out “level playing field” commitments that would apply in the backstop, including on state aid, and workers’ rights.

As set out in the political declaration, the UK and the EU will establish new arrangements on investment, ensuring that investors can operate across a broad range of sectors without facing unjustified barriers. These arrangements will ensure that the UK has autonomy to regulate investment in the future.

Claim

Fourth, we will regain control of our borders, but not of our labour market, with employment law still subject to Single Market legislation set by the EU during the transition period and level playing field rules under the backstop, which we will be powerless to shape or influence.

Response

It takes on average two years for significant new rules to pass through the EU, and the UK would therefore have helped to shape rules that come into effect during the IP. It makes sense that common rules will continue to apply until the Implementation Period ends in 2020, to give UK citizens and businesses consistency and certainty.

Under the Protocol, the UK and the EU have agreed that they will not reduce the current high levels of protection for social and employment, as they stand at the end of the implementation period, beyond that, the UK will have the freedom to set its own rules.

Claim

Fifth, we will regain control of our money, but at a high price. The £39bn cheque made payable to the EU will be equivalent to around four years of net contributions at present.

Response

The financial settlement represents a fair settlement of our obligations as a departing Member State, and was agreed in the context of the implementation period and our future relationship. Negotiations have ensured a fair deal for British taxpayers, with some commentators initially suggesting an upfront settlement of as much as £100 billion. Parliament will vote on the financial settlement and the Political Declaration on our future relationship as a package.

Claim

Sixth, we will be told that we can take back control of our laws, but the withdrawal agreement means that the European Court of Justice (ECJ) will supercede British jurisdiction in some areas during the transition, and potentially permanently if the backstop comes into force.

Response

It makes sense that common rules will continue to apply until the implementation period ends in 2020, to give UK citizens and businesses consistency and certainty. The implementation period is designed to ensure continuity and certainty for businesses and citizens.

After the implementation period, the jurisdiction of the CJEU in the UK will end, including the end of direct effect and supremacy of EU law. Going forwards, all laws in the UK will be passed by our elected representatives in Belfast, Cardiff, Edinburgh and London. UK courts will no longer be able to appeal to the CJEU, other than for a time-limited period on the important matter of citizens rights and on very specific aspects of our exit from the EU budget where it makes sense to maintain a consistent legal interpretation.

Claim

Seventh, the withdrawal agreement will do as little as possible to separate Britain from the EU but as much as possible to separate Northern Ireland from the rest of the UK. EU Single Market rules will apply even more forcefully in Northern Ireland than in Great Britain.

Response

The EU said we couldn’t preserve the invisible border between Northern Ireland and Ireland without splitting the UK’s customs territory.  The Withdrawal Agreement maintains the integrity of the UK’s customs territory, and creates no internal new borders.

The island of Ireland is already a separate entity to Great Britain for the purposes of plant and animal health, but the Government will keep regulations consistent across the whole of the UK in order to minimise any checks and controls. On VAT, HMRC will be responsible for collective VAT across the whole UK.

Claim

Eighth, negotiations may lead to an extension of the transition period until the end of 2022, and so more than six years after voting to leave the EU, we won’t really have done so.

Response

Nobody expects or wants the Implementation Period to be extended. The Political Declaration sets out a clear framework for our future relationship and provides negotiating instructions on how we will deliver a legal agreement for this by the end of 2020.

Claim

Ninth, the UK will be signing up to an agreement where any dispute resolution will ultimately fall under the auspices of the ECJ. Does the Prime Minister not realise that independent sovereign states do not allow their treaty obligations to be interpreted by a foreign court? Imagine a future scenario whereby the UK dramatically cuts taxes and regulation, but the EU accuses us of not properly following EU rules, with the arbitration panel passing on the decision to the ECJ, which then rules against us.

Response

This is incorrect: An ability for the CJEU to provide an interpretation of EU law is not the same as it resolving disputes - the UK has been clear that must fall to an independent arbitration panel. This respects the principle that the court of one party cannot resolve disputes between the two.

Claim

Finally, there will be no incentive for the EU to work towards a free trade agreement with the UK. A free trade agreement would provide Britain with a huge competitive advantage, outside both the customs union and Single Market rules, that Brussels is unlikely to countenance. And even if a deal were in the best interest of some or even most member states, any agreement would require all 27 signatories – which is unlikely, given issues with particular countries, such as Spain’s concerns over Gibraltar.

Response

Both the UK and the EU have made legally binding commitments under the Withdrawal Agreement to use “best endeavours” to negotiate our future relationship. The Outline Political Declaration provides a detailed set of instructions for this – this will be the most ambitious Free Trade Deal ever agreed. It is in the interest of both sides to settle our future relationship as soon as possible to give certainty to our citizens, our businesses, and the wider international community.