To some, Boris Johnson’s upbeat talks with EU leaders last week cast a glimmer of late summer sunlight on the Brexit impasse. There appears to be a sliver of a chance that the EU may yet return to the negotiating table in the coming weeks, perhaps because it is dawning on them that this Prime Minister is serious about taking the UK out of the EU without a deal and that a no-deal scenario will be equally – if not more – harmful to them than it will be to us.
At the same time, Johnson’s evident preoccupation with fixing the Withdrawal Agreement by removing the Backstop should be serious concern for anyone who wants a genuine Brexit. There is a very real danger that the Withdrawal Agreement, without the dreaded Irish Backstop, might be agreed by the EU and then get through Parliament. The Prime Minister voted for the Withdrawal Agreement himself, even with the Backstop still in, as did a number of leading Leave-backing MPs at the third time of asking. It is only the EU which now stands in its way.
But we must keep in mind there are many features of the Withdrawal Agreement which are just as bad as the Backstop, but which have received far less attention, notably from our Prime Minister. The Withdrawal Agreement would maintain the supremacy of EU law over the UK, including new laws created by the EU over which the UK would have no voice. This means that UK courts would be required to strike down Acts of Parliament if they are determined to be inconsistent with EU law.
Worse, the jurisdiction of the European Court of Justice would be retrained, either directly or through a dispute settlement system modelled on the one the EU has with the Ukraine through which a notionally neutral tribunal would be bound on issues of EU law by decisions of ECJ. Since the UK would have no judge on the ECJ, it would effectively be under the jurisdiction of a foreign court.
If that isn’t anti-democratic enough, although the UK would be bound by decisions of the EU institutions, including the European Commission, it would not be able to submit proposals or even requests for information to these bodies. Moreover, UK companies would be subject to EU State Aid rules after the transition period, removing a valuable tool of economic policy from the British government. Add to this the fact that the Withdrawal Agreement has very strict financial penalties for breach of its provisions and there would be no recourse to international courts for their resolution.
Perhaps most crucially, tied to the EU’s legal framework during the duration of the Withdrawal Agreement’s application and with no certainty regarding the situation which will replace it (because of the vague, ‘best efforts’ language of the accompanying waffly Political Declaration), the UK will be effectively prevented from signing trade deals with other countries, regardless of the fact that the Withdrawal Agreement misleadingly promises that this would be permitted. The auspicious US trade deal we have been hearing about recently would vanish overnight. And let’s not forget the small matter of the EU’s £39 billion Withdrawal Agreement signing bonus.
With no independent trade policy, bound by the EU’s cumbersome rulebook and subject to the ECJ, the promises made by the Cameron and May governments before and after the referendum (recall: no Single Market, no ECJ), the Withdrawal Agreement is an unmitigated disaster, even with the notorious Irish Backstop removed.
Were the EU to cave in and take out the Backstop, perhaps convinced by the very credible alternative border arrangements proposed by Greg Hands and Nicky Morgan, they would be doing the UK no favours. We would find ourselves trapped in an agreement that is still woefully one-sided.
Once again it is the EU’s intransigence that could end up saving Brexit, even if it means both sides toughing out the massively exaggerated no-deal hardships before the EU ultimately returns to the table and negotiates a conventional free trade deal, which is what we needed all along.
Please, Prime Minister, don’t settle for the Withdrawal Agreement without the Backstop if you get it; the whole thing must be ditched.
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