Sheila Lawlor: Even with an exit clause from the backstop, this deal would be unacceptable

Sheila Lawlor is the Director of Politeia and the author of Deal, No Deal? The Battle for Britain’s Democracy.

The confidence vote has kept Theresa May in office for now. But the Withdrawal Agreement may yet prove her nemesis.  It is that ‘deal’, the EU’s and hers, that almost did for her last week. So far, it has brought Britain’s government to a state of paralysis, prompted political turmoil, constitutional chaos and a level of uncertainty and disruption near-unprecedented for the best part of a century, as well as spooking the markets.

Unless it is put right, it will do, in the pejorative sense, not just for the Prime Minister, but for Britain too. An end date to the backstop, legally binding under international treaty, is needed, otherwise the UK may be obliged to remain indefinitely in an EU customs union and under its law, whilst Northern Ireland will be treated as a separate state, UK (NI),  with an even greater burden of EU law imposed than the rest of the UK.  So much is widely recognised – now, at least verbally, even by May herself. Few, however, recognize all the implications.

Consider, for example, state aid, on which under the backstop Brussels will rule. This, the EU claims, covers certain tax rules and fiscal choices, which mean that tax breaks would still be under the EU’s control. So if the UK wants to award tax breaks to start ups or to promote home farming or fish processing enterprises or otherwise stimulate the economy on leaving, it will probably be prevented from doing so under ‘state aid’ rules. Moreover, so long as there is the threat of an indefinitely long backstop, it is is hard to see how the UK will be able to resist the demands of EU negotiators to include many of its intrusive conditions in the future economic agreement.

But suppose for a moment that the Prime Minister in the end manages to extract from Brussels a cast iron guarantee that, if the backstop is invoked, it will end on a date written into the Withdrawal Agreement, and at that date the UK will leave the Customs Union with the EU and no longer be bound by any related corpus of EU law.

The victory would be a hollow one unless there is also there is also a fixed, end date for the Withdrawal Agreement’s other legal obligations. Without that, the UK’s constitution and its law will still, under international treaty, be subjugated to the EU in a number of areas, indefinitely, backstop or no backstop. Its freedom to prosper, to make and judge its own laws, for its people ‘to take back control’ over how or by whom they are governed – all these will be lost for ever.

Far from taking back ‘control of our laws’ or respecting ‘the integrity of the United Kingdom’, the claims made on its behalf in the Prime Minister’s initial letter to voters and since, the Agreement and its Northern Ireland Protocol fail to do either, and not just on the backstop. Were ministers to read a smattering of the 585 pages of the proposed legal text, they would see how serious the consequences of the deal will be across whole areas of national life. 

In fact, freedom from EU law is anything but guaranteed.  Article Four of the Withdrawal Agreement gives EU law supremacy over domestic law in a number of areas in respect of the entire Withdrawal Agreement and not just for citizens’ rights, as a House of Lords briefing paper and a senior MP have made clear. Article Four, which provides for direct effect and supremacy, is not limited to the transition period but will continue to apply to those provisions of the Withdrawal Agreement (and of EU law to which the Agreement refers) once the UK has left the EU at the end of the transition period. Thus the status of EU law in the UK at the end of the transition is not clear.

This is just one example of the uncertainty that awaits the UK if the Withdrawal Agreement is accepted, even with modifications to the backstop. A careful reading of its near 600 pages would discover more. Why accept it? Even the Prime Minister can find no reason better than that is the only deal, so that the other options are, she says, no Brexit or leaving without a deal. In fact, no Brexit is not an option: the people voted clearly in 2016 and Parliament has legislated for the UK to leave the EU on March 29, 2019.

But leaving without a deal simply means leaving without agreeing to the special terms that the EU wishes to impose, but following the legal agreements which the UK has made. It leaves open, not just the certainty of being able to trade, as we  already do very successfully with most of the world, on WTO rules, and the opportunity to sign free trade agreements globally and reaching a Canada Plus style trade deal with the EU. Indeed, the UK will probably be in a much better position to negotiate an ambitious long-term trade deal with the EU if it leaves cleanly, without the baggage that any sort of divorce deal will inevitably impose.

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Author: Dr Sheila Lawlor


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