Response to European Union Draft Withdrawal Agreement

Much has been made politically today about the European Union’s attempted power-grab over Northern Ireland through the Draft Withdrawal Agreement.

This is all valid, but in focusing on this so-called ‘dead cat strategy’ it would be easy to miss much of the rest which is contained within the text of the draft Agreement.

The biggest threat to UK sovereignty is that this Agreement would give EU courts sweeping power over the UK forever; the 8-year ‘sunset clause’ is written in such a way that it would not apply to huge swathes of the Agreement. For such an Agreement to be policed by the Courts of one side rather than the other is politically unacceptable.

The points below have generally not yet been picked up on by the press or  most politicians, but it is vital that Theresa May does not allow them to go unchallenged:

1. The Draft Withdrawal Agreement is a document written by one side, designed to protect the interests of only the EU side.

2. Throughout the text, references are made to UK obligations to follow European Union law.

3. The absence of provision of specific rights to the United Kingdom across various areas is glaring.

4. In certain areas, obligations are on both sides.

5. Article 161 makes the Agreement exclusive, to prevent the UK relying upon international law or anything external to the Agreement itself.

6. Article 162 provides for a resolution for the settlement of disputes, which will at first instance be resolved by the Joint Committee established in Article 157.

7. Decisions of the Joint Committee will be binding under Article 159(2).

8. Where any dispute is irreconcilable by the Joint Committee (and this is likely to occur frequently in practice, given that the Committee will be comprised of representatives of the EU and of the UK), the final arbiter of a dispute will be the European Union’s own courts under Article 163(1).

9. The UK will therefore be subject to the rulings of the European Court of Justice, with no clear sunset clause.

10. The European Court of Justice will have the power under Article 163(2) to fine the United Kingdom.

11. Either the UK or the EU can suspend parts of the agreement under Article 163(3)(a). However, such a decision can be reversed by the European Court of Justice – meaning that, in practice, only the European Union would have the power to suspend parts of the agreement.

12. Worse still, this Agreement claims jurisdiction over any other Agreement between the European Union and the UK. Consequently, the Agreement permits the European Court of Justice to judicially review a decision for the United Kingdom to withdraw from any other Agreement which it might have with the European Union under Article 163(3)(b).

13. Article 165 provides for a one-sided ability for the European Union to suspend UK access to the Single Market during the transitional period.

14. Article 151 introduces an 8-year sunset clause for the European Court of Justice’s ability to rule on matters affecting the UK. However, that sunset clause appears to be limited in scope to Part II of the Agreement. The sunset clause does not apply to Part VI of the Agreement, and therefore to the situations referred to in Articles 161 through 165.

15. Consequently, the European Court of Justice could continue to overrule the United Kingdom in perpetuity.

16. The European Union will calculate (Article 133) the amounts of money it wants the UK to pay in the ‘divorce bill’. Likewise, in Articles 135(3), 136(2), 136(3),136(5), 136(6), 136(8), 137(4), 140 and 141(2), it is clear that the EU will make the calculations.

17. In some areas where the EU is liable to the UK (the EIF and the Coal and Steel Community in Articles 138 and 139) the Agreement does not make clear who is making the calculations.

18. In the case of the investment portion of the EDF (Article 145), the method of determining how much money the UK receives is said to be ‘the same as’ that of Article 137, which presumably means calculated by the EU.

19. The only recourse available to the UK if it disputes the EU’s calculations appears to be to the Committee on the financial provisions (Article 158(1)(a)) and/or the Joint Committee. Ultimately, the arbiter of this would be the European Court of Justice – the EU’s own court.

20. Article 122 appears, by omission, to seek to prevent the UK from negotiating trade deals with third countries during the transitional period: Article 122(1) states that all Union law shall be applicable during the transitional period, except for any variations later.

21. The doctrine of ‘sincere co-operation’, used by the European Union to justify a ban on the UK negotiating such deals, is not listed amongst the exceptions.

22. The Citizens’ Rights section of the draft Agreement (Title II Chapter 1) almost exclusively deals with legislation it wishes to still apply to the UK post-Brexit.

23. This method should be unacceptable to the UK; one party to an agreement should not be able to frame that agreement in terms of legislation.

24. The draft Agreement regularly places burdens upon the UK with no equivalent burden being placed upon the European Union, for example in data protection (Article 7) and information sharing (Articles 40 and 41).

25. Article 148 requires the UK to pay towards a facility for refugees in Turkey.

26. Article 152 requires the UK to set up a new monitoring authority to monitor the implementation of the Agreement.

27. Article 32 limits the rights of UK citizens living abroad to move between Member States, treating the European Union as a collection of Member States. Whilst this approach is in itself unobjectionable, it shows the European Union itself cherry-picking by creating an exclusion to their own principle of treating the European Union as a single entity.