REPLACING the WITHDRAWAL AGREEMENT How to Ensure the UK Takes Back Control on Exiting the Transition Period
Total Page:16
File Type:pdf, Size:1020Kb
REPLACING THE WITHDRAWAL AGREEMENT How to ensure the UK takes back control on exiting the transition period JULY 2020 A Forewords 8 The History of Sovereignty - Professor Robert Tombs 8 Reasserting our Sovereignty: A Practical Necessity - Sir Bill Cash MP 10 Sovereignty in the Context of Northern Ireland - The Rt Hon The Lord Trimble, PC 13 Introduction 16 STEP ONE - OBTAIN A GOVERNMENT CONSENSUS THAT WA/PD THREATS TO UK SOVEREIGNTY ARE UNACCEPTABLE 18 A - Threats in the Northern Ireland Protocol 19 B - Threats in Remainder of the WA 29 C - Threats Arising from Negotiations 40 D - Threats to Defence in the PD 51 STEP TWO - DEFINE A SOVEREIGNTY COMPLIANT AGREEMENT 55 An Invisible Border - Alternative Arrangements/Mutual Enforcement 55 Rights of EU Citizens to be Protected by UK National Legislation 62 Independent Adjudication for Agreed Outcomes 63 Transitioning Back to UK Court Remedies 63 Exit from EIB - and Other Residual Liabilities 63 No Legal Requirement to Cooperate/Share Resources with EU Defence Schemes 66 STEP THREE - REPLACE THE WITHDRAWAL AGREEMENT WITH AN ACCEPTABLE AGREEMENT 67 The Legal Logic 68 The Legal Approach Required 75 STEP FOUR - BENEFIT FROM ANY OUTCOME 76 Agreement With The EU 76 No Agreement 82 STEP FIVE - OFFER THE RIGHT DEAL 87 Annex A - Amount at Risk Under the Commitment Appropriation 88 Annex B - Demystifying the EU’s Common Security and Defence Policy 90 Annex C - Overview of How Standard Customs and Border Procedure Operate in the EU 93 Annex D - Draft FTA Text on Subsidy Control 97 B THE CENTRE FOR BREXIT POLICY The Centre for Brexit Policy (CBP) is a new think tank backed by cross-party politicians who support the UK leaving the EU. It has been formed to propose the critical policy changes enabled by Brexit that will boost national prosperity and well-being in years to come, as well as help ensure that Britain fully ‘takes back control’ when it leaves the European Union. The CBP aspires to trigger a deep and wide debate about what Brexit should mean for the UK over the next decade or two. By providing a focus for the development of post-Brexit public policy, the CBP hopes to help formulate an overarching framework for the UK that maximises the opportunities Brexit affords. This will be promoted to Government, Parliamentarians, and the public welcoming contributions from those who want to see Brexit open a new and fruitful chapter in our country’s life. The CBP has three core objectives: • Identify the benefits and opportunities of Brexit across the full spectrum of economic, trade, social, foreign, defence and security policy areas proposing new policies for the Government’s agenda • Continue to make the intellectual, evidence-based case for a ‘real’ Brexit and provide the Government with clear and constructive advice on how to deal with ongoing negotiation and implementation issues. A ‘real’ Brexit means regaining full control over our laws, borders, seas, trade, and courts • Check any attempts to dilute a real Brexit, as well as serving as a catalyst and rallying point for positive news stories that, over time, will be able to persuade and demonstrate the many substantial advantages of Brexit Delivery of these objectives is based on professional, substantive fact-based research by experts in their fields leading to authoritative reports, short papers, OpEds, events, and briefing meetings - both within and without Government. The CBP is supported by a cadre of expert CBP Fellows drawn from multiple disciplines to provide additional expertise and experience in developing an agenda for policy change that will ensure the British people benefit from Brexit. Additional support is provided by a CBP Business Forum to bring a business perspective to shaping CBP’s agenda, provide input to policy proposals, and deliver a pro-Brexit business voice. 1 CONTRIBUTING AUTHORS David Banks Co-Founder, Veterans for Britain Bill Cash MP for Stone; Chairman, European Scrutiny Committee; former Shadow Attorney General/Secretary of State for Constitutional Affairs David Collins Professor of International Economic Law City, University of London Martin Howe QC (Intellectual Property and EU Law); Chairman Lawyers for Britain Robert Lyddon Principal, Lyddon Consulting Services Hans Maessen Independent Customs Adviser for business and government; Member, Alternative Arrangements Commission Edgar Miller Managing Director, Palladian Limited; Convener, Economists for Free Trade; Senior Visiting Fellow, Cass Business School Owen Paterson MP for North Shropshire; former Secretary of State for Northern Ireland; former Secretary of State for Environment, Food and Rural Affairs Barnabas Reynolds Partner, Shearman & Sterling, Global Head of Financial Institutions Lee Rotherham Director, The Red Cell; Executive Director, Veterans for Britain; former Director of Special Projects, Vote Leave Robert Tombs Professor Emeritus of French History, University of Cambridge; Fellow, St John’s College; Co-Editor, Briefings for Brexit Lord Trimble Former First Minister of Northern Ireland; Nobel Peace Prize for work leading to the Good Friday Agreement James Webber Partner, Shearman & Sterling (Brussels and London) specialising in EU and UK antitrust law Sammy Wilson MP for East Antrim; Minister of Finance and Personnel and Minister of the Environment, Northern Ireland Executive; former Lord Mayor of Belfast 2 “But if we are to be told by a foreign Power... what we shall do, and what we shall not do, we have Independence yet to seek, & have contended hitherto for very little.” George Washington letter to Alexander Hamilton, 8th May 17961 1 Full speech available at: https://founders.archives.gov/documents/Washington/99-01-02-00497 3 EXECUTIVE SUMMARY • As the Government recognises, Sovereignty is the crux of Brexit. Chief Negotiator, David Frost, has said, it is not “some clever tactical position” but the “point of the whole project”. – The bargain the UK struck when entering into the EEC/EU was, in return for shared sovereignty, it would gain other advantages. The British public voted in the 2016 Referendum and subsequently in other national elections that those advantages are no longer worth it - a rejection of the EU’s concept of “pooled sovereignty” – Therefore, on exiting the Transition Period (TP), it is vital that the Government ensures that no legal text interferes with the UK returning to a fully sovereign state, consistent with the status quo ante for whatever reasons the EU may concoct • As things currently stand, this is not the case. The current situation results from a failure in the original Withdrawal Agreement (WA) - negotiated by Theresa May - to appreciate the irreconcilable position of exiting the EU, but instead signing back into EU law without any voting power over that law. Given the time and political constrains of a year ago, the new Conservative Government was surprisingly successful in eliminating the Irish Backstop and facilitating an official exit from the EU in January of this year on the basis of transition to a fully sovereign state. – However, although the Government sees the revised Withdrawal Agreement (WA) as only transitional until the end of the TP in December, there remain serious threats to UK sovereignty that will have crippling economic and strategic consequences for years to come if they are not dealt with now – Exiting the TP with these threats still in place will not return the UK to a fully sovereign state and is unacceptable • It is not widely understood how serious these threats are or that they can be eliminated. – The WA amounts to a ‘poison pill’, leaving the UK subjugated to the EU. There are specific terms in the Northern Ireland Protocol (the Protocol), as well as in other parts of the WA, giving power to the EU and encroaching on UK sovereignty with regard to State aid, EU citizens’ rights, ‘divorce payment’ liabilities, future financial liabilities, EU data protection laws, EU geographical indications of origin, provisions relating to UK sovereign bases in Cyprus and Gibraltar, as well as numerous other matters – Separately, in the negotiations, the EU is demanding additional sovereignty renunciations with regard to fishing rights and demands for a ‘level playing field’ – The Political Declaration (PD) invites the UK to participate in various defence and industry schemes that would undercut our future independence and freedom of manoeuvre • To fulfil Brexit’s sovereign promise and take back control from the EU, the UK must ensure that any agreement negotiated is ‘sovereignty compliant’ and that the UK prepares itself for the possibility that the EU ultimately will not come to such an agreement. This requires the Government to take the following five steps: 1. Obtain a Government consensus that the WA/PD threats to UK sovereignty and in the negotiations at large are unacceptable 2. Define a Sovereignty Compliant Agreement to replace the WA 3. Replace the WA through negotiation by a new Sovereignty Compliant Agreement, explaining and justifying why the UK’s proposed agreement meets the EU’s objectives while simultaneously ensuring the UK’s future sovereignty 4. Position the UK to benefit from whatever negotiation outcome is achieved 5. Offer the right deal to the EU 4 These steps provide a blueprint that - if implemented well - could produce an outcome of mutual benefit to both the UK and the EU. STEP ONE - OBTAIN A GOVERNMENT CONSENSUS THAT WA/PD THREATS TO UK SOVEREIGNTY ARE UNACCEPTABLE. Given the raft of problems currently confronting the Government, it has understandably been