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No democracy please, we’re British.

british brexit democracy
Written by Caroline Bell

Theresa May seeks to ‘sell’ her draft Withdrawal Agreement as a sensible and practical compromise. In reality, it resembles the surrender document of a defeated state: the WA binds the UK indefinitely to the EU in a subordinate position, and removes its parliamentary and legal sovereignty in an unprecedented attack on our democratic rights.

Read the detailed report, of which this is a summary, on our website.

It isn’t just the Northern Ireland “backstop”, which carves out Northern Ireland as a province of the EU and also keeps the entire UK in permanent subjection to EU laws on all areas of economic activity. Nor is it the hugely expensive and indefinitely extendable “transition period”, during which the UK will bound by and have to implement EU law over which it has no say and be committed to paying large sums demanded by the EU for many years after the end of the transition period. It isn’t even the fact that we will be subject to EU law under this Agreement and our only judicial remedy will be through the European Court of Justice. All these elements are completely unacceptable.

But the real sting and the greatest betrayal is the way the governance procedure has been designed to strip British MPs and by extension their constituents of any right to ever examine, question or make decisions on any part of this Agreement or our future relationship with the EU.

The Withdrawal Agreement states that once it comes into force (i.e. at the start of the transition period on 30 March 2019), EU law shall apply and be enforced in the UK as if we were a member state. Article 131 invests all EU bodies and agencies with the same powers and functions in relation to the UK which they have now, and in particular the European Court of Justice is supreme. Article 7, meanwhile, strips the UK of all representation in the decision-making bodies of the EU.

But it gets much worse.

The WA specifically removes all control over the agreement and our relationship with the EU from the elected members of the UK Parliament and hands it to a ‘Joint Committee’ (Arts. 164-169). The Committee will be appointed and co-chaired by a UK government minister (note: doesn’t have to be elected) or civil servant and a representative from the European Commission. This Committee will have the exclusive right to implement the Agreement, interpret the Agreement and amend the terms of the Agreement ‘for up to four years after the end of the transition period’ and make binding decisions enforceable in the United Kingdom. It will also have the exclusive right to settle disputes. No dispute may be taken to the International Court, as is customary under treaty law (Art. 168).

If disputes cannot be settled by the Committee, then it may convene an international arbitration panel… However, where the dispute concerns “a concept of Union law, a  question of interpretation of a  provision of Union law referred to in this Agreement or a question of whether the United Kingdom has complied with its obligations… it  shall request the  Court of Justice of the  European Union to give a ruling on the question… which shall be  binding on the  arbitration panel.”

Since European Union law will apply in full throughout the transition period, the only arbiter will in all cases be the ECJ, enabling the EU to enforce whatever it wants on the UK, especially laws which are directly against our interests (like VAT Directives or the Financial Transactions Tax).

The unelected Joint Committee becomes de facto a supranational governing body of the UK during the transition and backstop, and its innocent-sounding ‘procedural rules’ appear to have come from the Soviet Union. Rule 10 on publicity and confidentiality on page 560 of the Withdrawal Agreement states that:

“1. Unless otherwise decided by the co-chairs, the meetings of the Joint Committee shall be confidential.
2. Where the Union or the United Kingdom submits information considered as confidential or protected from disclosure under its laws and regulations to the Joint Committee or any specialised committee, the other party shall treat that information received as confidential.
3. Without prejudice to paragraph 2, the Union and the United Kingdom may  each decide individually on whether to publish, the  decisions and recommendations adopted by  the Joint Committee  in their respective  official publication  journals.”

Decisions made by the Joint Committee and enforceable in the UK under European law therefore do not need to be made in public or made public.

And if this secrecy isn’t bad enough for day-to-day business, Article 132 allows this exclusive and secret Joint Committee, not MPs in Parliament, to decide “before 1 July 2020, [to] adopt a single decision extending the transition period up to [31 December 20XX].”

In other words, the unelected Joint Committee will have the unilateral right to decide in secret to keep the United Kingdom in indefinite vassalage to the European Union.

British citizens will become permanently disfranchised under this agreement. The Joint Committee is invested with the sole right to implement and enforce the Withdrawal Agreement as well as with the power to extend the transition period indefinitely or to end the backstop. There need never be any further reference to democratically elected members of Parliament.

Far from restoring control of our laws, the Withdrawal Agreement is the death of parliamentary sovereignty in the United Kingdom and removes from British citizens civil rights that extend back to Magna Carta.

Copyright © Caroline Bell

About the author

Caroline Bell