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The Draft Withdrawal Agreement

Political Declaration
Christopher Howarth 27 November 2018
The Draft Withdrawal Agreement
A legally binding draft treaty including:
• EU and UK citizens’ rights
• Transition period
• Financial settlement of c.£39bn
• A potentially permanent backstop Customs Union
• Other provisions on security cooperation etc

The Political Declaration

Not legally binding, aspirational and mutually contradictory:
• “build and improve on the single customs territory”
(para 23)
• Or is it “a free trade area” (para 22)
The Draft Withdrawal Agreement
Five failings
1. It hands over £39bn for nothing in return
2. The backstop could lead to a regulatory border in
the Irish Sea
3. The Customs Union backstop is permanent. There
is no unilateral right for the UK to leave.
4. UK remains a rule taker under the ECJ
5. UK Fish treated as outside of the Customs Union
backstop leading to a probable Fish for trade deal.
1. £39 billion for nothing
• The financial settlement will be in a legally binding
international treaty, the future trade agreement (if not the
backstop) is aspirational.
• The future financial settlement is made up of various
elements; unfunded commitments (RAL); pension
contributions and EU budget contributions during the
transition is estimated to come to c.£39bn.
• It is perfectly possible that we could agree to pay the
various elements of the £39bn yet remain in the backstop
after the end of the transition with no free trade deal.
2. Border down the Irish Sea
• The Irish / Northern Ireland Protocol would, if it comes
into force at the end of the Transition period, keep the UK
in a Customs Union and Northern Ireland in further areas
of regulatory alignment.
• If Northern Ireland is forced to accept regulatory
alignment and Great Britain does not then UK goods
flowing to Northern Ireland could go into the EU market.
To prevent this would require an Irish Sea Border.
• For that reason Article 7 of the Protocol guarantees only
NI>GB trade not GB>NI trade
3. The Backstop is permanent
• The Ireland / Northern Ireland Protocol (backstop) has no
unilateral right of exit.
• The backstop includes a Customs Union, meaning the UK
will have no independent trade policy. (Art 4 of Protocol)
• Article 20 of the Protocol gives the EU a veto on UK exit.
• To this the French and Spanish Governments have added
new stipulations on fish and Gibraltar that make leaving
the Protocol more difficult.
How we are trapped.
• Article 1 of the Protocol states ‘North South cooperation’,
‘Avoid a hard border and the ‘1998 Agreement in all its
dimensions’ as the reason for the backstop.
• Article 20 states if the UK “considers that this Protocol is,
in whole or in part, no longer necessary” the EU and UK
may “decide jointly” within the Joint Committee.
• Therefore the EU must agree a new trade agreement and
agree the criteria above have been fulfilled before the
protocol can be exited. The EU can therefore veto UK exit.
4. UK remains subject to the ECJ
The ECJ will remain the final arbiter of the agreement.
• The Transition – Article 4 (1)
• On cases arising in the transition – Article 87
• On elements of the financial settlement – Article 160
• Over the interpretation of EU law used by the Arbitration
panned – Article 174
• Over the backstop – Article 14 (1) of the Protocol
The EU will continue to keep EU laws during the transition
and then over Northern Ireland in the backstop.
5. Fisheries at risk of being traded away
• The Withdrawal Agreement’s backstop (Art 6) treats fish
differently than other goods and products. They will remain
outside of the Customs Union and therefore UK fish will not
gain tariff free access to the EU.
(EU tariffs on fish are c. 9% Civitas)
• If the UK ends up in the backstop UK caught fish will therefore
have less favourable access to the EU’s market putting pressure
on the UK to trade access to the EU’s market for EU boats’
access to UK fish.
• The political declaration Para 75 specifically links fish to the
trade deal.
• During the transition the UK will not be at the table.
What happens with the meaningful vote
• Under the European Union Withdrawal Act (s.13)
there will be a ‘meaningful vote’ to approve the
Withdrawal Agreement and Political declaration.
• The WA can only be ratified if they “have been
approved by a resolution of the House of
Commons..” A conditional approval is not approval.
• If the Commons does not approve the WA / PD the
Act stipulates a HMG statement within 21 days on
which HMG must bring forwards a neutral motion.
• The UK then leaves the EU on 29 March 2019.
Bad reasons to vote for the deal:
• ‘No deal’ means remain
There is no mechanism to ‘vote against no deal’
• ‘No deal means EEA’
There is no mechanism for this, and is legally complex
• ‘No deal means Corbyn’
Au contraire, where are Tory votes coming from now?
• ‘No deal means a General election’
Fixed Term Parliament Act
• ‘No deal means chaos’
Not significant if handled correctly
• ‘No deal will prevent us achieving rest of program’
Without DUP there is no Conservative program and potentially an election
• Art 50 can not be the basis for permanent backstop – it will end
So just like the permanent deal on Geo Indicators under Art 50 and EU citizens rights?
Thank you