The situation is changing even as you read this. On 4 December we heard the legal advice given to the European Court that Article 50 could be unilaterally withdrawn by this country to put us back where we were—an unsurprising opinion, given the federal mission of that court. We have no need to see the legal opinion that was extorted – it was obvious. Given the possibilities of reversal by means of another referendum or withdrawal, “Macbeth” sprang to mind:
“I am in blood
Stepp’d in so far that, should I wade no more,
Returning were as tedious as go o’er”.
Withdrawal from the EU is indeed like a divorce. One side will be milked for ever so that the other can keep up the style of living to which they are accustomed. Mrs May has proved not to be a bloody difficult woman, but a pushover.
From the outset one can see why the withdrawal agreement is not a genuine or workable solution to the complexities we face. It has been negotiated by each side with entirely different aims. Part one binds the UK and the EU to a duty of good faith, meaning that neither side should act in a way to undermine the agreement, and that the UK and the EU should support each other in carrying out the remit of the Agreement. But that good faith requirement is absent from the EU negotiators and aims. For them it has been about survival, holding on to the former eastern bloc states that have reverted to the authoritarianism that marked their 20th century history; it has been about beating down the competition, making life as difficult for the UK as it has done for Greece, Italy and Cyprus, in order that Germany may prosper. The Brussels bureaucrats fight for the federal illusion, and go on drawing powers into the centre, never to return them. Above all it a deterrent strategy: rebellion must be put down (les gilets jaunes contre Macron on a broader scale?) Similar competitive negotiations are taking place within our country. The true believers of Remain continue to cling to the myth of EU continuity and superiority. They have nothing to offer the nation, even if there were a second referendum, except self interest and no change.
We joined the Common Market over 40 years ago on a false prospectus. At each stage as it moves towards a federation, the grip of regulation, the euro, the social charter and the Charter of Fundamental Rights, gets tighter. As citizens become more disaffected, the project drives forward more relentlessly, with more controls, leading to more disaffection. Maastricht and the premature admission of the former soviet states were mistakes that contributed to the UK’s rejection of the EU. The Greek and Dutch referenda were ignored, and the young unemployed of Europe have been sacrificed to keep the euro and federal project on the road. We abandoned our relations with Australia, Canada and NZ, and made a massive miscalculation of future geopolitical influence. Now we can only hope that they welcome the return of the prodigal son.
This is not about the economy. It is not even about whether we will speculatively be poorer. It is about the recovery of self determination, and self respect, democratic governance, the rule of law and respect for human rights, all of which have been under attack by and within the EU.
In 2000 Larry Seidentop warned in Democracy in Europe that there was no “culture of consent”. He said: “by allowing an elitist strategy for rapid European integration to shape the image of liberal democracy in Europe, to the point almost of constituting it, Europe’s centrist politicians may unwittingly be fostering the things that are most antithetical to liberal democracy – xenophobic nationalism and economic autarky”. If we do not leave now, we will be chained to a corpse. The EU Empire is collapsing, as empires do. Poland, Hungary and Italy are breaking all the rules; the EU is unable to face up to Russia, fund Nato, or deal with crises. Its rulers treat their subjects as ignorant or stupid, make them vote again if they come up with the wrong result the first time or ignore their votes. It is the opposite of self confidence when the EU belittles, bullies and disheartens this country in order to deter other prospective escapees and to punish us for our decision. We are getting out in the nick of time.
It is in that light that we must consider the withdrawal agreement. As others have explained it takes all the money on the table, but holds us in a customs union potentially forever through the backstop unless we accept whatever departure terms the EU may dictate in the future. I do not believe in the professions of wishing it to be short term. The Joint Committee that makes the decisions will be weighted towards Europe, unaccountable and its meetings will be confidential. It is unacceptable to have the ECJ involved in arbitration over whether we could leave the backstop or not. That is a court with a federalist mission, with judges on short term contracts with vast salaries and pensions, dependent on their governments for renewal of appointment, a system that would be unacceptable here, and who have recently made judgments, such as upholding the non disclosure of MEPs’ expenses and the clamping down on gene edited crops, which are quite simply wrong: it is no impartial arbiter. The Protocol locking the UK in without a right to leave is unique and unprecedented in trade treaty law. Will the government persuade the PM to drop the backstop? will the Minister assure us that the Vienna Convention on the Law of Treaties will enable us to unilaterally withdraw from the withdrawal agreement, as I believe it does? The Treaty specifies conditions for withdrawal such as withdrawal being contemplated at the outset and a profound change of circumstances, which is very likely.
As far as Northern Ireland is concerned, it is sad that the threat of terrorism should affect our policy making. Every time the UK has suffered a terrorist incident, the national response has been that they will never make us change our way of life, and yet the shadow of terrorism has pervaded the deal. The agreement makes Northern Ireland subject to Dublin’s influence, and it is likely that unification is the only answer to the inflexible approach now being taken, and perhaps that was what was always in the mind of the Republic. Its democracy is being taken away; it will remain subject to EU law and control without having a vote, which is contrary to human rights, specifically the right to a vote. Either the EU should accept British bona fides on avoiding a hard border, or the technology that we know is available should be presaged in the agreement. Were there to be a clean break, the EU could force Ireland to conduct checks at the border. This might be the very shock needed to make Ireland find ways to arrange checks away from the border. So a clean break would be better for Northern Ireland than this agreement.
As in a bad divorce, the financial obligations will continue long past any commitment of the parties to each other – the meal ticket for life encompasses our meeting commitments entered into in 2020 and 2021, a great temptation to the EU to commit to as many programmes as they can in this period, while we have no vote. And we will have to meet the pension obligations incurred for the lifetime of the pensioners, a good reason why there should have been relevant declarations during the Brexit debates. All these sums will be calculated by the EU. The Union law referred to in the agreement includes the Charter of Fundamental Rights, in blatant contradiction to the decision of Parliament not to include that Charter in the carrying over of EU law after March. All in all, our sovereignty has not been reclaimed; it is even more diminished, and the rule of law is compromised by the uncertain scope of articles referring final decisions to bodies outside this country and not under our control.
Would a second referendum help? Quite apart from the difficulties of arranging one and deciding what the questions should be, it would create further constitutional complexities. To hold another one drains the last of its legitimacy; it means none are legitimate. A referendum’s legitimacy lies in its one-off quality – it is monogamy compared with bigamy or polygamy. If we Leavers were regarded as ignorant and misled in 2016, how can any voter in a hypothetical second referendum be regarded as competent unless they have read the 585 pages of the agreement and are able to choose between 4 or 5 options and have got to grips with the backstop, the customs union and the single market? In any case, it is highly likely that Leave would win again, because if there is one element that even a staunch Remainer will not stomach, it is being bullied into changing their mind under a barrage of state propaganda; the British voter remembers how the Dutch and Greek nay-voters were treated and up with this they will not put. Threats and inducements and speculative financial prognoses will not work.
We cannot accept an agreement about the future of the country which forbids us to leave without the permission of the other party. That is exactly the situation which Leavers have been trying to escape from for decades. We want to live under a safe, legitimate rule of law. If the Government cannot or will not drop the backstop, and is not prepared to rely on the international law of treaties to assure a way out, then we must have a clean break. After the transition period we will abide by WTO rules, and let the EU discover that their greed will ultimately lead to their losses.
Ruth Deech is a member of the House of Lords, and has served as chair of the Human Fertilisation and Embryology Authority, and as Principal of St Anne’s College, University of Oxford.