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May-Barnier Withdrawal Agreement. Not the End of the Story

withdrawl agreement
Written by Jonathan Story

Professor Story describes the WA as a deal for which there is no parallel in British history. The UK government is in effect saying that the UK is in effect a province of the EU.

Professor Story comments on the Withdrawal Agreement. His comments should be read in conjunction with the WA Summary on our Briefings page.

May and Barnier have both co-operated in the creation of the withdrawal Agreement (WA). May has stated that this is the deal she wanted, and Merkel has observed that May does not want to leave the EU. Put side by side, these remarks support the view that May has anticipated BRINO (Brexit in Name Only) and is prepared-regardless of what she has stated in the past-to edge back to Remain.

This document is also the EU’s: from a legal point of view, it is clear when the EU wants it to be clear and vague when it wants it to be vague. Clarification on either point lies in the hands of the ECJ. This is the essence of BRINO, and of course the EU wants the UK to Remain. A reasonable interpretation of the WA is therefore that it is the joint work of May and Barnier, not of Barnier v. May. May was a Remainer, and has remained a Remainer. Barnier has from the start stated that the decision to Leave was the UK’s – in other words, while “respecting British democracy”, the UK was the “demandeur”-asking for permission to Leave. May clearly by her actions, less than by her words, has indicated her accord.

Relations between UK and EU.

The WA, once in force, is legally binding. The Future Arrangements Agreement (FAA) is not. To bridge this gap, both parties commit to use their “best endeavors” to reach and ratify an FAA  – on the basis of the Political Declaration which sets out a programme to facilitate reaching agreement by the end of 2020.

How the UK may expect to be treated is spelt out in the WA. Article 8 stipulates that the UK will be shut out of all EU networks and data bases for security. Article 124 ties the UK to EU foreign policy for an unspecified time. Article 34 allows the UK to be an observer as the EU passes law impinging on the UK. Articles 40-49 mandate in effect that the UK remains part of the customs union. 

Timetable. 

May says the UK leaves at the end of March. This is not so. Articles 6, 7, 8 make clear that the UK is a member state, without representation, until the end of the transition period. The end of the transition implementation period (TIP) is elastic. Article 39, dubbed “the lifetime” clause, states that persons covered by this Part enjoy the rights provided for in the relevant Titles of this Part for their lifetime”.

During the TIP, EU law prevails, without formal UK participation in its making. The ECJ rules during the TIP, and in the event of cases brought before its end, afterwards. It reigns over  Citizens’ Rights provisions for a period of 8 years from the end of the TIP; on those financial provisions which continue to apply after TIP; in respect of EU legislation applicable to NI and Cyprus. During the TIP, the UK is bound by obligations to third countries in any external agreement which the EU has entered in to. EU law will apply extensively in Northern Ireland, under the “Backstop” spelled out in the NI Protocol. After the end of the TIP,  the ECJ will continue to determine the interpretation of EU law applicable under the WA by the mandatory reference procedure from the arbitration panel.

The UK will conform to specific EU legislation on customs, including with respect to third countries. In the Political Declaration, para 79 commits the UK to a ‘level playing-field’ and  the UK commits to on-regression (from the law as it stands at the end of the TIP) on EU environmental protection, labour and social standards, state aid and competition and state-owned undertakings in respect of administration of tax. This customs union would be a practical barrier to the UK entering separate trade agreements on goods with third countries.

The “Backstop” is the core of the Protocol on Northern Ireland (NI). It The Protocol, including the backstop, could be  superseded in whole or in part by an FAA. Under the Backstop the UK will form a customs union with the EU (except for trade in fisheries and aquaculture products which await further agreement on fishing opportunities – which the parties shall use their “best endeavors to achieve by 1 July 2020).

The Attorney General, in his six-page letter to Prime Minister May on November 13, but published on December 4, said the “current drafting” of the backstop “does not allow for a mechanism that is likely to enable the UK to lawfully exit the UK wide customs union without a subsequent agreement”. “This remains the case even if the parties are negotiating many years later and even if the parties agree that talks have clearly broken down and there is no prospect of a future relationship agreement.” Mr Cox said that despite assurances that the arrangement was not intended to be permanent “in international law the protocol would endure indefinitely until a superseding agreement took its place”.”In the absence of a right of termination, there is a legal risk that the UK might become subject to protracted and repeated rounds of negotiations,” he said. “The resolution of such a stalemate would have to be political.”

Relations between UK and EU.

The WA, once in force, is legally binding. The Future Arrangements Agreement (FAA) is not. To bridge this gap, both parties commit to use their “best endeavors” to reach and ratify an FAA  – on the basis of the Political Declaration which sets out a programme to facilitate reaching agreement by the end of 2020.

How the UK may expect to be treated is spelt out in the WA. Article 8 stipulates that the UK will be shut out of all EU networks and data bases for security. Article 124 ties the UK to EU foreign policy for an unspecified time. Article 34 allows the UK to be an observer as the EU passes law impinging on the UK. Articles 40-49 mandate in effect that the UK remains part of the customs union.

ECJ supremacy.

The 1972 European Communities Act (ECA) Section 2.1. states that the highest court in the land is the ECJ. The WA repeats this: Article 4 stipulates that both companies and citizens can refer to it; Article 4.2. orders UK courts to recognize this; Article 87 says that the Commission can bring matters before the ECJ up to four years after the end of (an unspecified) transition period. The WA mentions the ECJ 60 times. Article 158 states that ECJ jurisdiction in the UK applies up to 8 years after the end of (an unspecified) transition period. Article 6.2. indicates that the UK will be bound by any future changes in EU law. Article 168 states that disputes will be decided by the ECJ; arbitration is to be decided under ECJ rule. The UK therefore has no possible recourse to international law, where it would be considered legally as a co-equal of the EU. Under the WA, the EU defines who is/not a UK national, according to the Lisbon Treaty definition of citizenship. Articles 71-73 bind the General Data Protection Regulation into UK law.

Article 159 establishes a Joint Committee to “guarantee the implementation and application of this agreement”; the JC will be able to spawn sub-committees with jurisdiction over citizens rights, separation issues, NI, Gibraltar and Cyprus; the financial provisions under Article 105. It is answerable to the ECJ for interpretation of the accord. 

Reciprocity 

The fulfilment by the UK of its obligations under the WA are not conditional on reaching a satisfactory FAA. Article 184 provides for the Parties to “use their best endeavors, in good faith and in full respect of their respective legal orders,” to take the necessary steps to the FAA. Article 5 refers in this regard to a duty of either Party to engage in “sincere cooperation”.  It should be noted that there is no legal consensus about how much the UK owes the EU from the putative sum of  £39bn. The WA includes confidentiality clauses(for instance Article 105). 

Finance 

The WA abounds about what the UK owes the EU. Under Article 104, the EU and its employees are agreed to be immune to UK tax laws. Article 101 specifies that the UK will not prosecute EU employees who are or may be criminals. Article 34.2. states that the UK shall participate in the Electronic Exchange of Social Security Information(EESSI) and bear the costs. Article 37 adds that the EU and the UK will undertake “awareness-raising campaigns” concerning social security issues. Article 50 stipulates that the UK will reimburse the EU for access to networks, formation systems and  data bases; the amount will be decided by the EU.  Articles 75-78 bind the UK to EU rules on procurement during the indefinite TIP. Article 103 hands over to the EU all rights to data that the EU has made with the UK as a co-financier. Article 44 has the EU decide which capital projects the UK is liable for. Article 93 binds the UK to EU state aid laws until there is a future agreement. Artcile 142.2. has the UK libale for any outstanding financial commitments after 2022, with Article 140 stipulating that the EU decides how much. Article 143 states that the UK will be liable for future lending(in very considerable detail). Article 150 stipulates that the UK will remain liable for capital projects approved by the European Investment Bank(EIB). Articles 152-154 state the the UK remains party to the European development Fund. The UK has to pay the EU to extend the transition Article 32.3. In short, Articles 140-149 cover mechanisms for payments to be made after 2022.

Conclusions.

The WA is the result of close collaboration between Barnier and May. They agree on the fundamentals that the deal is a second best. Barnier clearly states that this is just logical and flows from the regrettable decision to Leave. May does not say so for political reasons, but her  actions as illustrated in the WA indicate that she agrees.

May states that the UK will leave March 31, 2019, that it has won back controls of its laws, its money, immigration and can make trade deals. The WA terms indicate that this is a heroic interpretation. To phrase the matter in terms of the post-modernist ideology, May’s narrative does not match the facts.

May is in direct line of descent from Prime Minister Heath who fervently considered that the EU is a supranational entity, and that EU law overrules UK law. Like Heath, May is having difficulties selling the concept to the British public. The reality is of course that the UK is a major contributor over 43 years to the elaboration of a supranational doctrine. That doctrine is now being applied with May connivance on the UK public.

International treaties between equals involve reciprocity. The WA holds no indication of reciprocity. As I have elaborated on this blog. The EU is not negotiating; it is dictating. May, to repeat, is acquiescing.

The UK is not legally bound to hand over 40 billion sterling, but the WA makes clear that the EU has much larger sums in mind.

What to make of this deal? It is a deal for which there is no parallel in British history. The UK government is in effect saying that the UK is in effect a province of the EU, even more so out of the EU than in.

When MPs vote on this, they should all realize that they will be held to account. Political parties of all stripes have tried lies, deceit, comforting mantra, whatever springs to mind to justify the diminution of the inherited liberties and rights of British citizens. Parliament has the chance to reject this deal;

Parliament then faces the choice: vote to Remain or vote to Leave. This WA is not the end of this story.

About the author

Jonathan Story