https://brexitfacts.blog.gov.uk/2018/11/23/response-to-spectator-article-mays-brexit-deal-the-legal-verdict/

Response to Spectator article: ‘May’s Brexit deal - the legal verdict’

Our response to several claims made by The Spectator in their article "May’s Brexit Deal - the legal verdict" - published on 22 November 2018.

Claim

Once the Protocol is in force, the UK cannot leave it except by ‘joint’ decision of the UK and the EU. This gives the EU a right of veto over the UK’s exit. In agreeing to this clause, the government has caved in over seeking a right to leave.

Response

The Protocol is explicit in the legal text that it is intended to be a temporary arrangement. The Withdrawal Agreement establishes a binding obligation on both the UK and the EU to use their best endeavours to agree a future relationship which would supersede the backstop by December 2020. Compliance with this obligation can be subject to independent arbitration.

There is also an explicit review clause built in to the agreement, enabling the backstop to be terminated where it is not necessary to meet its objectives. If the EU does not engage in that review in good faith, that too can be arbitrated.

And ultimately we want to ensure it never needs to be used; or is used only for a temporary period. A future agreement - whether our future relationship or other “alternative arrangements” (as referenced in the legal text) would ensure that the backstop was never needed or was turned off.

Claim

Indeed, the Protocol — which has become known as the ‘backstop’ — locks the whole UK into a customs union with the EU with no decision-making power.

Response

The UK will be able to negotiate, sign and ratify Free Trade Agreements with rest of world partners and, following the Implementation Period, implement any elements that do not affect the functioning of the backstop – such as those aspects related to services, procurement and investment.

The single customs territory also ensures no tariffs, quotas or checks on rules of origin for UK goods trade with the EU – it is by its nature reciprocal. Goods sectors, including agrifood, account for £226 billion of UK GVA, employ 835,000 people and see 48% of exports go to the EU. This amounts to £146 billion of exports, more than three times the £47 billion that went to the US, the UK’s second largest trade partner.

Claim

The declaration states that there will be “customs arrangements that build on the single customs territory provided for in the Withdrawal Agreement”. This means that the EU will not even be under a moral, still less legal, obligation to agree a trade deal which allows the UK to conduct its own future independent trade policy.

Response

The political declaration is clear that whatever is agreed in the future partnership must recognise the development of an independent UK trade policy beyond this economic partnership. The political declaration in fact recognises that our customs arrangements will build and improve on the single customs territory. That means exactly what it says — that we can make use where appropriate of what we have included in the Withdrawal Agreement. For example, there is explicit agreement to use all available facilitations and technologies in developing this ambitious customs arrangement, including examples of tools that the UK and the EU may draw on, such as trusted trader schemes.

Claim

The ‘transition’ period would see most EU laws continuing to apply in the UK, enforced as now by the Commission and adjudicated by the ECJ

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 these rules. 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 during this limited period when EU law continues to apply.

Claim

The likely extension of the transition coupled with the very thin political declaration means that it could run indefinitely, prolonging the turmoil of the past 18 months and uncertainty about the future.

Response

This is untrue. There is a provision for further extension of the Implementation Period if strictly necessary, but it can be extended only once and only for a time limited period. It is simply not true to state the Agreement provides for an indefinite Implementation Period.

Claim

The ‘independent’ panel will simply act as a postbox for sending the dispute to the ECJ. And as a rubber stamp when the answer comes back.

Response

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

This draft agreement will not take us closer to an acceptable final deal with the EU. Instead, it locks us down by throwing away in advance our two strongest negotiation cards: EU budget payments of £39 billion and the future access to our market for EU goods.

Response

This agreement confirms that as we leave the EU the days of sending vast payments to the EU are coming to an end. The financial settlement reflects a fair settlement of our rights and obligations as a departing member of the EU. It is estimated to be much lower than some of the estimates we heard – as high as £100bn and it is agreed in the spirit of our future relationship.

Claim

It would not let us forge our own trade policy with other parts of the world.

Response

The political declaration is clear that whatever is agreed in the future partnership must recognise the development of an independent UK trade policy beyond this economic partnership. During the IP we will be able to negotiate, sign and ratify free trade agreements with rest of world partners, ready to bring them into force thereafter. Even in a backstop, we could implement any elements that do not affect its functioning — such as those aspects related to services and investment.

Claim

It would not give us back control of our laws.

Response

In leaving the EU, 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. Disputes between the UK and the EU will not be resolved by the CJEU; its role will be strictly limited to the interpretation of EU law, consistent with the principle that the court of one party cannot determine disputes between the two.