Draft EU Withdrawal Agreement - George's View

I have been contacted by a number of constituents on this matter and wanted to provide a thorough response. 

Of course, since I received some of these enquiries, the Prime Minister has also published the Political Declaration and my reply takes the contents of that document into account as well as the Withdrawal Agreement, given the link between them.

Broadly, the correspondence has fallen into three categories in around equal numbers:

·       Those who want to reverse Brexit or hold a second referendum.

·       Those who support the deal negotiated by the Prime Minister.

·       Those who are opposed to the deal and wish for a different kind of Brexit.

I will address these in turn.

A second referendum

I have always made clear that I do not support a second referendum.

Parliament supported a referendum on whether we should remain or leave the EU, which took place in 2016, and the UK population voted to leave. The proponents of a second referendum want a chance to reverse a decision that received the biggest turnout for any vote in our democratic history and I cannot support that.

Some correspondents have pointed out that the referendum was only an advisory exercise with no legal status itself. This is the case for all referendums in the UK, but Parliament has since passed the EU (Notification of Withdrawal) Act 2017, which gave legal effect to the result of the referendum and the decision that the people made.

It seems to me that, at the current time, a second referendum is designed only to frustrate the Brexit process, and that this in turn would undermine the democratic principles on which our nation is built.

Further, there are several practical objections to a second referendum

First, if a second, why not a third, a fourth and so on? In short, it would settle nothing.

Second, it is very difficult to imagine what the question or questions would be and, indeed, whether Parliament would be able to agree on any proposals.

Third, to hold a referendum would require an Act of Parliament to be passed “at least six months before it is required to be implemented or complied with”, according to the Electoral Commission report on the 2016 referendum. There is simply no time for a second referendum prior to us leaving the EU on 29th March 2019.

A second referendum is not only wrong in principle, in my view it isn’t practical either.

As I see it, this leaves two possible choices; leave with a deal or leave without a deal.

Accepting the Prime Minister’s negotiated deal

You will not be surprised to hear that I strongly believe that it is better to leave with a deal and, further, that the Prime Minister's proposals represent a realistic and practical option that delivers on the referendum’s instruction. We always knew there would be difficult compromises to make. 

I understand that for some who voted to leave, this has been met with forceful disagreement.

But, in my view, the deal the Prime Minister has agreed with the EU has delivered on what the referendum mandated: we will be leaving the EU in March next year, and we will take back control of our borders, our laws and our money.

Many will already know the fundamental tenets of the Withdrawal Agreement (WA): it secures the rights of EU citizens living in the UK, and UK nationals living in the EU; agrees the terms of a time-limited Implementation Period (IP) and a fair financial settlement; and it winds up other aspects of our current membership in an orderly way, such as current legal cases and goods that have been placed on the market before our exit.

But in addition, the deal as outlined also delivers continued access to EU markets where businesses have asked for this, and so allows us to guarantee the many jobs and livelihoods all over the UK that rely on our highly integrated supply chains with the EU.

This point is crucial. If we were to be bound irrevocably to the EU’s rules on goods with no say over those rules, I can see the argument that maintains we would be a ‘vassal state’.  But that is not the case.

Together, the WA and the Political Declaration (PD) acknowledge that any agreed deal should give us the right to choose where we follow the EU’s rules and where to decide not to do so, if it is in the UK’s interest. To my mind this is the real-world application of the control of our own sovereignty in action.

Of course, it will be argued by some that we should have no deal at all and that, while the WA is legally binding the PD is not. This is self-evidently true; the PD is a political agreement and forms the basis for future negotiation, while the WA will become, via legislation, a legally binding treaty.

The point that is being made of course is that the WA contains the detail of the Northern Ireland Protocol (the Backstop), which will be subject to the binding nature of an international treaty between the UK and EU.

This warrants considerable examination as it is one of the principal issues causing dissatisfaction with the Deal. Please be warned that what follows is of some length.

The Backstop

One of the most contentious parts of the negotiations has always been (and will always be) the issue of the Northern Ireland border and the need to respect the Belfast Agreement (BA) in all its parts. The BA commits both sides to cross border cooperation and that those living on the island of Ireland can choose their nationality or remain citizens of their two respective countries.

This causes no problems when both countries are members of the EU, but leaving throws up the considerable challenge of how any customs or regulatory border can be enforced should the UK leave the EU without a deal, whilst also ensuring that we remain committed to the BA.

The Government has maintained that any negotiated arrangements will accommodate both of these factors, and I have no doubt that the PD set outs a future economic partnership that will do exactly that. But it remains a possibility that the future economic partnership set out in the PD will either not be agreed at all, or not be agreed in time to be in place before the end of the IP on 31st December 2020. In the unlikely event that agreement is not ready, the WA allows for a one-off, time-limited extension, to be decided by 1st July 2020. If an agreement on the future partnership is not reached, or the extension not agreed, we may end up in the Backstop.  

The Backstop – or insurance policy – is therefore a guarantee that there will be no hard border between Northern Ireland and the Irish Republic and, crucially, no customs border between Northern Ireland and the rest of the UK. But let me be clear, neither the EU or the UK wants to end up in the backstop, and parties will have to use their ‘best endeavours’ to ensure that the future economic partnership is negotiated so that it never happens. What’s more, the Backstop is temporary, as set out in Article 1 of the Protocol, although I would be being economical with the truth if I didn’t point out that terminating the Backstop involves an appeal to a panel and cannot be done unilaterally.

Further, the final version of the PD (at part 27) has included text that commits both sides to finding a solution to the Northern Ireland issue that will remove the need to use the Backstop altogether, whether a future partnership deal has been agreed or not.

Nevertheless, it is important to understand what the rules for the Backstop are. For the UK as a whole, the Backstop requires that the UK remains aligned with EU rules on state aid, environmental, social and employment standards, some tax practices and the competition regime. It does not require full alignment of regulation on goods.

Further, it requires the UK to apply the Common External Tariff and the Common Commercial Policy on trade in goods with third party countries to the extent necessary for the Single Customs Territory to function. In essence, this means having the same tariff rate and rules of origin as the EU for goods coming from third party countries.

It is also important to understand that those key parts of the WA that the UK has negotiated will still remain, even in the unlikely event that the Backstop would be use. Free movement will still end, as will any budgetary contributions, the direct jurisdiction of the European Court (CJEU) (although it will remain for a time limit of 8 years for the citizens’ rights elements of the agreements, on some trade matters, and for the WA itself) and the supremacy of EU law will end. But, significantly, the Backstop requires Northern Ireland to remain aligned with EU rules in almost all ways relating to goods, and thus a greater role for the CJEU will exist here.

I can see perfectly well why some object so fervently to this idea. In short, part of the UK will be committed to remaining compliant with EU rules with the UK having little, if any, control over what those rules are. Further, it means at least cursory checks on goods being sent from the rest of the UK to Northern Ireland. That these checks will not be done at any sort of ‘border’ is important, but I can see why any checks at all are problematic for some. It is also perhaps worth noting that some checks, such as on live animals, already take place.

So, it is perfectly legitimate to ask how it is possible to recognise this issue and still believe the proposed deal offers a credible solution to honour the Referendum’s instruction for the UK to leave the EU.

My answer is two-fold.

First, it depends on whether or not you believe that the EU will negotiate in good faith to agree our future economic partnership agreement and so negate the need for the Backstop.

I believe they will. Why?

·       Because it is in their long-term interest. It is also my belief that the EU has negotiated in good faith up to this point.

·       Because there is a mechanism built into the agreement to ensure that this takes place.

·       Because there are plenty of incentives on the EU to avoid moving to the Backstop. Principally this is that, for a number of the EU27 countries, there is a belief that the access that the UK is given to the Single Market during the Backstop, without us having any of the obligations that this should entail (free movement, money and laws) is too much to swallow.

So, I am confident that the Backstop is just that; an emergency measure to deal with unlikely circumstances.

Second, I have to ask those who object to this arrangement a simple question, namely “what’s the alternative solution?”.

The EU have been consistent and clear on this throughout – whatever it is that we would have negotiated towards, be it the proposals in the White Paper, a version of a standard free trade agreement or membership of the European Economic Area, all will have to involve a Northern Irish Backstop.

So, in essence, not having a Backstop arrangement commits us to ‘no deal’ with all that entails, including the implications for the BA and Northern Ireland.

But if you believe that the BA and the commitments that we have made to Northern Ireland should be honoured (as I do), then it seems to me that the agreement we have reached is a necessary and proper instance of the UK Government consciously and freely choosing to contingently trade specific parts of its sovereignty to pursue UK policy objectives, exactly what many who voted to leave feel passionately that we should be able to do.

In my view, the Backstop agreement presented by the Prime Minister is uncomfortable but necessary and proportionate. While it may not give us everything, we should not forget that the European Commission has also compromised and made several significant concessions towards the UK’s position.

The EU said that we could not preserve the invisible border between Northern Ireland and Ireland without splitting the United Kingdom’s customs territory. The deal maintains the integrity of the United Kingdom’s customs territory; the EU’s initial proposal for a Northern Ireland-only customs ‘backstop to the backstop’ has been dropped and replaced by a new UK-wide solution that respects the constitutional integrity of our country.

The EU had said that achieving an agreement on no tariffs, quotas or checks on rules of origin to the EU market would need harmonisation, existing access to fishing waters, strong governance and probably a financial contribution. This deal offers us those benefits as part of the Backstop but without those heavy obligations and ends vast budgetary contributions.

While, exceptionally, there would be tariffs on our fish and fish products unless we reach a fisheries agreement with the EU, under the Backstop we immediately regain full control of our waters and become an independent coastal state once again.

The deal beyond the Backstop

So what has been achieved?

The PD agrees a number of things.

The EU wanted the whole WA overseen by the CJEU. Instead, we have a political Joint Committee and an independent arbitration panel, whereby the panel will ask the opinion of the CJEU if it decides that it is a relevant point of EU law.

In its ambition it represents considerable movement on the EU’s part. The EU had said that the choice for the UK was binary: a Norway style, EEA deal or a Canada style free trade deal. In the PD it is conceded that there is a spectrum, with the extent of our commitments taken into account in deciding the question of checks and controls.

We have agreed to create a free trade area for goods, combining deep regulatory and customs co-operation with zero tariffs, no fees, charges or quantitative restrictions across all goods sectors. No other major advanced economy has such a relationship with the EU.

The PD specifically recognises that the future relationship must ensure the sovereignty of the UK, the protection of its single market, and that any future agreement must respect the result of the Referendum including with regard to the development of our independent trade policy and the ending of free movement.

On trade specifically, the UK will have an independent trade policy covering goods and services, we will be able to set our own tariffs, and we will be able to negotiate, sign and ratify new free trade agreements after we leave the EU on 29 March.

We have reached common ground on a close relationship on services and investment, including financial services; on cooperation on transport and energy; and, on fisheries, the provisions reflect the fact that the UK will become an independent coastal state once again.

The EU had said that we could not share capabilities as a non-Member State. The PD grants us direct access to some and promises to enable many others, further commitments than they have made to any non-Member State.

Alongside all this we have reached agreement on key elements of our future security partnership to keep our people safe. There will be swift and effective extradition arrangements and we will continue data exchange on fingerprints, DNA, and vehicle records as well as passenger name records. On foreign, security and defence policy, we have agreed to co-operation on sanctions, participation in missions and operations, defence capability development and intelligence exchanges.

But, while much has been achieved and this is an important step forward, there is still work to be done. As the joint statement makes clear, in many areas there is much still to agree within the framework set out.

Those who oppose the deal

From my point of view, those who advocate opposition to the agreement can be split into two groups.

To deal with the simple proposition first – that we should leave with no deal. I cannot support this objective. I am not going to dwell on this option save to say that I believe that there is a deal on offer that makes such a decision, with all the related consequences it brings for jobs, livelihoods, prosperity and Northern Ireland, an easy one to make.

Secondly, there are those who dislike the terms of what is outlined sufficiently that they want to reject it, but in a way that allows the Prime Minister to go back to the negotiating table to try and change what they dislike about the deal.

All I can say is that it may be that this is what Parliament ends up deciding; and perhaps the EU will agree to a last round of negotiation; and perhaps they will offer to change the nature of some of the most difficult compromises that have taken 18 months to flesh out. But then of course none of this may happen.

Yet again, I have to ask why we would choose to reject a deal that delivers what the referendum demanded and offers the prospect of preserving so many of the benefits we currently enjoy, whilst not requiring many of the obligations that this has previously entailed.

Withdrawing from EU membership after 40 years and establishing a wholly new relationship that will endure for decades to come has been complex thus far and requires more hard work to succeed.

I appreciate that for some, this deal (or indeed any deal) would never be good enough. But in my view this country faces a stark set of choices: this deal, no deal or no Brexit at all. I firmly believe that this agreement puts the country on a path towards a good deal that is in that national interest.