Here is a precis of 'Horrors' which are contained within the 500 Plus pages of 'Legalese' which Theresa May wishes to pass through Parliament.
I assume that you will have read some of this already Jerry, and may be able to explain some of the details to others who could be interested.
Spectator Coffee House Steerpike
The top 40 horrors lurking in the small print of Theresa May’s Brexit deal
Steerpike
17 November 2018
8:55 AM
This week, Theresa May’s government teetered on the point of collapse
over her proposed Brexit deal. The withdrawal agreement between the UK
and Brussels led to Dominic Raab and Esther McVey resigning in protest.
However, May’s remaining ministers have since attempted to rally around
her at least in the short term. Speaking on Friday, Liam Fox – the
International Trade Secretary – gave a speech in which he declared ‘a
deal is better than no deal’. This is rather different to May’s old
claim that ‘no deal is better than a bad deal’.
So, is Fox right? Mr S thought it best to let readers decide for
themselves. In theory, Britain is leaving the EU on 29 March 2019. But
the legal small print, published by Brussels, shows what this means.
Parliament will be asked to ratify a deal which
clearly admits that ‘all references to ‘Member States’ and competent
authorities of Member States…shall be read as including the United
Kingdom.’ (Article 7). So the UK will be bound by EU laws, at
least during a transition period. But this ‘transition period’ can be be
made to last forever (Article 132). And even if a successor deal is
agreed, the UK will have signed away other rights for years to come.
Just in case readers don’t have the time to go through the lengthly
document themselves, Steerpike has compiled a list of the top 40
horrors lurking in the small print of Theresa May’s Brexit deal:
In summary: The supposed ‘transition period’ could last indefinitely or,
more specifically, to an undefined date sometime this century (“up to
31 December 20XX”, Art. 132). So while this Agreement covers what the
government is calling Brexit, what we in fact get is: ‘transition’ +
extension indefinitely (by however many years we are willing to pay for)
+ all of those extra years from the ‘plus 8 years’ articles.
Should it end within two years, as May hopes, the UK will still be
signed up to clauses keeping us under certain rules (like VAT and ECJ
supervision) for a further eight years. Some clauses have, quite
literally, a “lifetime” duration (Art.39). If the UK defaults on
transition, we go in to the backstop with the Customs Union and,
realistically, the single market. We can only leave the transition
positively with a deal. But we sign away the money. So the EU has no
need to give us a deal, and certainly no incentive to make the one they
offered ‘better’ than the backstop. The European Court of Justice
remains sovereign, as repeatedly stipulated. Perhaps most damagingly of
all, we agree to sign away the rights we would have, under international
law, to unilaterally walk away. Again, what follows relates (in most
part) for the “transition” period. But the language is consistent with
the E.U. imagining that this will be the final deal.
The top 40 horrors:
From the offset, we should note that this is an EU text, not a
UK or international text. This has one source. The Brexit agreement is
written in Brussels.
May says her deal means the UK leaves the EU next March. The
Withdrawal Agreement makes a mockery of this. “All references to Member
States and competent authorities of Member States…shall be read as
including the United Kingdom.” (Art 6). Not quite what most people
understand by Brexit. It goes on to spell out that the UK will be in the
EU but without any MEPs, a commissioner or ECJ judges. We are
effectively a Member State, but we are excused – or, more accurately,
excluded – from attending summits. (Article 7)
The European Court of Justice is decreed to be our highest court,
governing the entire Agreement – Art. 4. stipulates that both citizens
and resident companies can use it. Art 4.2 orders our courts to
recognise this. “If the European Commission considers that the United
Kingdom has failed to fulfil an obligation under the Treaties or under
Part Four of this Agreement before the end of the transition period, the
European Commission may, within 4 years after the end of the transition
period, bring the matter before the Court of Justice of the European
Union”. (Art. 87)
The jurisdiction of the ECJ will last until eight years after the end of the transition period. (Article 158).
The UK will still be bound by any future changes to EU law in which
it will have no say, not to mention having to comply with current law.
(Article 6(2))
Any disputes under the Agreement will be decided by EU law only –
one of the most dangerous provisions. (Article 168). This cuts the UK
off from International Law, something we’d never do with any foreign
body. Arbitration will be governed by the existing procedural rules of
the EU law – this is not arbitration as we would commonly understand it
(i.e. between two independent parties). (Article 174)
“UNDERLINING that this Agreement is founded on an overall balance
of benefits, rights and obligations for the Union and the United
Kingdom” No, it should be based upon the binding legal obligations upon
the EU contained within Article 50. It is wrong to suggest otherwise.
The tampon tax clause: We obey EU laws on VAT, with no chance of
losing the tampon tax even if we agree a better deal in December 2020
because we hereby agree to obey other EU VAT rules for **five years**
after the transition period. Current EU rules prohibit 0-rated VAT on
products (like tampons) that did not have such exemptions before the
country joined the EU.
Several problems with the EU’s definitions: “Union law” is too
widely defined and “United Kingdom national” is defined by the Lisbon
Treaty: we should given away our right to define our citizens. The
“goods” and the term “services” we are promised the deal are not defined
– or, rather, will be defined however the EU wishes them to be. Thus
far, this a non-defined term so far. This agreement fails to define it.
The Mandelson Pension Clause: The UK must promise never to
tax former EU officials based here – such as Peter Mandelson or Neil
Kinnock – on their E.U. pensions, or tax any current Brussels
bureaucrats on their salaries. The EU and its employees are to be immune
to our tax laws. (Article 104)
Furthermore, the UK agrees not to prosecute EU employees who are, or who might be deemed in future, criminals (Art.101)
The GDPR clause. The General Data Protection Regulation – the EU’s
stupidest law ever? – is to be bound into UK law (Articles 71 to 73).
There had been an expectation in some quarters that the UK could get out
of it.
The UK establishes a ‘Joint Committee’ with EU representatives to
guarantee ‘the implementation and application of this Agreement’. This
does not sound like a withdrawal agreement – if it was, why would it
need to be subject to continued monitoring? (Article 164). This Joint
Committee will have subcommittees with jurisdiction over: (a) citizens’
rights; (b) “other separation provisions”; © Ireland/Northern Ireland;
(d) Sovereign Base Areas in Cyprus; (e) Gibraltar; and (f) financial
provisions. (Article 165)
The Lifetime clause: the agreement will last as long as the
country’s youngest baby lives. “the persons covered by this Part shall
enjoy the rights provided for in the relevant Titles of this Part for
their lifetime”. (Article 39).
The UK is shut out of all EU networks and databases for security –
yet no such provision exists to shut the EU out of ours. (Article 8)
The UK will tied to EU foreign policy, “bound by the obligations
stemming from the international agreements concluded by the Union” but
unable to influence such decisions. (Article 124)
All EU citizens must be given permanent right of residence
after five years – but what counts as residence? This will be decided by
the EU, rather than UK rules. (Articles 15-16)
Britain is granted the power to send a civil servant to Brussels
to watch them pass stupid laws which will hurt our economy. (Article 34)
The UK agrees to spend taxpayers’ money telling everyone how wonderful the agreement is. (Article 37)
Art 40 defines Goods. It seems to includes Services and Agriculture.
We may come to discover that actually ‘goods’ means everything.
Articles 40-49 practically mandate the UK’s ongoing membership of the Customs Union in all but name.
The UK will be charged to receive the data/information we need in order to comply with EU law. (Article 50)
The EU will continue to set rules for UK intellectual property law (Article 54 to 61)
The UK will effectively be bound by a non-disclosure agreement
swearing us to secrecy regarding any EU developments we have paid to be
part. This is not mutual. The EU is not bound by such measures. (Article
74)
The UK is bound by EU rules on procurement rules – which effectively
forbids us from seeking better deals elsewhere. (Articles 75 to 78)
We give up all rights to any data the EU made with our money (Art. 103)
The EU decide capital projects (too broadly defined) the UK is liable for. (Art. 144)
The UK is bound by EU state aid laws until future agreement – even
in the event of an agreement, this must wait four years to be valid.
(Article 93)
Similar advantages and immunities are extended to all former MEPs and to former EU official more generally. (Articles 106-116)
The UK is forbidden from revealing anything the EU told us or tells
us about the finer points of deal and its operation. (Article 105).
Any powers the UK parliament might have had to mitigate EU law are officially removed. (Article 128)
The UK shall be liable for any “outstanding commitments” after 2022
(Article 142(2) expressly mentions pensions, which gives us an idea as
to who probably negotiated this). The amount owed will be calculated by
the EU. (Articles 140-142)
The UK will be liable for future EU lending. As anyone familiar with the EU’s financials knows, this is not good. (Article143)
The UK will remain liable for capital projects approved by the European Investment Bank. (Article 150).
The UK will remain a ‘party’ (i.e. cough up money) for the European Development Fund. (Articles 152-154)
And the EU continues to calculate how much money the UK should pay
it. So thank goodness Brussels does not have any accountancy issues.
The UK will remain bound (i.e coughing up money) to the
European Union Emergency Trust Fund – which deals with
irregular migration (i.e. refugees) and displaced persons heading
to Europe. (Article 155)
The agreement will be policed by ‘the Authority’ – a new UK-based
body with ‘powers equivalent to those of the European Commission’.
(Article 159)
The EU admits, in Art. 184, that it is in breach of Article 50 of
the Lisbon Treaty which oblige it to “conclude an agreement” of the
terms of UK leaving the EU. We must now, it seems, “negotiate
expeditiously the agreements governing their future relationship.” And
if the EU does not? We settle down to this Agreement.
And, of course, the UK will agree to pay £40bn to receive all of these ‘privileges’. (Article 138)